In re Estate of Boniface Gathenge Macharia (Deceased) [2022] KEHC 12127 (KLR)

In re Estate of Boniface Gathenge Macharia (Deceased) (Succession Cause 10 of 2020) [2022] KEHC 12127 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12127 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 10 of 2020

FN Muchemi, J

May 5, 2022

IN THE MATTER OF THE ESTATE OF BONIFACE GATHENGE MACHARIA (DECEASED)

Between

Beatrice Nduta Waruiru (Suing on Behalf and as Next Friend of the Minor Child Mccain Macharia)

Applicant

and

Samuel Mwangi Gathiga

Administrator

Ruling

Brief facts 1. This matter came up for mention to confirm compliance in filing submissions and for the applicant to inform the court whether she had made up her mind on withdrawing her application dated December 10, 2021. It was reported during the mention that the applicant had approached the administrator Mr Gathiga Mwangi Advocate on the issue of provision of school fees for her child and on her intention to withdraw the case. The applicant said through her counsel that she was not given audience by the administrator.

2. Mr Nyandieka for the applicant informed this court that the child of the deceased with the applicant named as M M has been sent away from school for non-payment of school fees. The counsel asked the court to grant orders in terms of prayer No 3 of the application dated December 10, 2022 pending the hearing and determination of the application arguing that the matter was termed as extremely urgent.

3. Ms Muthui who was holding brief for the administrator said grounds of opposition had already been filed in respect of the application and that the administrator was opposed to any sort of provision at this stage. Mr Nyandieka further argued that since there was no dispute to the issue of the deceased being the father of the minor and that the deceased has provided for the minor to the tune of Kshs 1,000,000/= to be withdrawn annually from his account, in the will, the interim provision ought to be granted.

4. I have perused the will of the deceased and note that paragraph 17 provides for withdrawal of Kshs 1,000,000/= on a yearly basis in favour of the minor named M M and another by the name of Dorcas Nduta Gathege whom must be the children of the applicant. The amount is indicated for the purpose of the funds being used “exclusively for the deceased’s business affairs” with this rider that does not directly provide that the amount be used for school fees, it is in the interests of justice that all the parties herein be heard in this application. The administrator has already filed grounds of opposition on May 4, 2022 which require to be considered before any orders may be given.

5. For the foregoing reasons, I decline to grant any interim orders in terms of prayer No 3. Parties had already taken directions to file submissions and should proceed as such.

6. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 5THDAY OF MAY, 2022. F MUCHEMIJUDGERuling delivered through videolink this 5thday of May, 2022.