Catherine Wangui & Flora Wanjiru v David Ndungu Kimama [2014] KEHC 38 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

SUCCESSION CAUSE NO.  195 OF 2013

CATHERINE WANGUI &

FLORA WANJIRU ......................................... PETITIONERS

VERSUS

DAVID NDUNGU KIMAMA .......................... RESPONDENT

RULING

The   petitioners took   up the   summons, dated 26th  March, 2013 seeking orders:

1. That the court be pleased  to freeze account  No.0230199926795 Equity Bank, Molo Branch, operated by the  respondent.

2. That pending the   hearing and  determination of  this cause, the  court be pleased to order the  transfer of all moneys, not   exceeding Kshs.3,332, 878/=,  from   the respondent's account in  (1) above to the deceased's account No. O 130100224117 Equity Bank, Malo Branch; and

3. That  pending the   hearing and  determination of  the this cause,   the respondent   be  restrained    from intermeddling or interferring in  any manner with  the estate of the  deceased.

The  application is  supported by  the affidavit of, Catherine Wangui  Macharia  (one of the petitioners  herein)  and  is premised on  the grounds that   the   deceased passed  on  on 18. 8.2012; that the  deceased was  survived by  the  petitioners and six children and that the deceased was entitled to Kshs.3,332,878/= from  his  employer (Norwegian Refugee Council) as terminal benefits.

Further that the terminal benefits were released to  the respondent on  the  understanding that the respondent would distribute them to  the  petitioners but, the respondent, upon taking the  monies, reneged on  the  agreement and   engaged in  spending spree. Apprehensive that the monies would be depleted, the petitioners took  up the summons herein to safeguard their interest and that of the  other  beneficiaries  of the estate.

In the affidavit sworn in support of the summons,  the deponent, has  reiterated the grounds stated thereon and averred  that  owing to  differences between  her   and her   co­ petitioner, they agreed that  the  deceased's  terminal  benefits herein should be  released to  the respondent. The agreement between them and  the   respondent was that  the respondent would receive the money and thereafter distribute  it  to  them. Pursuant to their agreement, the deceased's terminal benefits were deposited into the respondent's account No.[...] Equity Bank Molo. The respondent reneged on the agreement and refused to distribute the moneyto them and instead engaged in spending spree. Reliable information obtained is that the money remaining in the respondent's account is Kshs.900,000/=. The applicants are apprehensive that the respondent is  hell  bent on  wasting the estate of the deceased and completely disinheriting them. The   deceased  was  survived  by  six   children,  all below 12 years of age,  who  require money for  daily upkeep and school fees;  and the deceased has no  other assets.

Annexed to the applicants' supporting affidavit are: the deceased's death certificate (annexture EWM 1),  and a letter from the deceased's employer (annexture EWM2). The letter from the deceased's employer, inter alia, provided that:-

"The    total  amount  of   Kshs.3,332,878/= will  be  paid out in  one-time lump sum to Mr. David Ngungu Kimama (the respondent herein)   holder   of    National    I.D No. [......]  who is  the  late  Njenga Nganga's brother and the Administrator of the  deceased's  estate  appointed  by   the family members."

The petitioners and the respondent signed to the deceased employer's letter above paving way  for release  of  the deceased's terminal benefits to the respondent.

On   21. 11. 2013  when the matter  came  up  for hearing,  I ordered  the applicant  to file a supplementary affidavit to confirm that account No. [...] is in  the name of the deceased.

Subsequently, the  petitioners filed the affidavit sworn 10th January, 2014 confirming that fact.

Having read and considered the issues raised  in this application, I have no doubt that the estate of the deceased herein has been wasted and is in  danger of  being further wasted.

There being evidence that the respondent was served and failed to respond to the  issues  raised  herein,  I allow the application as prayed.

Dated, Signed and Delivered at Nakuru this 30th day of May, 2014.

H. A. OMONDI

JUDGE