In re Estate of Daniel Muinde Kitua (Deceased) [2022] KEHC 15436 (KLR)

In re Estate of Daniel Muinde Kitua (Deceased) (Succession Cause E021 of 2022) [2022] KEHC 15436 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15436 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause E021 of 2022

GV Odunga, J

October 5, 2022

IN THE MATTER OF THE ESTATE OF DANIEL MUINDE KITUA (DECEASED)

Between

Lucy Wambui Muinde

1st Petitioner

Bethsheba Nyakerario Nyamweya

2nd Petitioner

and

Rosemary Muinde Kitua

Objector

Ruling

1. By Summons dated 12th May, 2022 expressed to be brought under rules 49 and 73 of the Law of Succession Act Cap 160 Laws of Kenya, and all other enabling provisions of the law, the Applicant herein, Bethsheba Nyakerario Nyamweya, seeks the following orders:1. That this application be certified urgent and be heard ex parte in the first instance.2. That this Honorable Court be pleased to authorize, direct and or Order the Managing Director, Fly 540 Limited to release the amounts herein under set out so as to meet the financial need of the minor child, SMK namely;a.Tuition Fees per term - Kshs.70,000/=b.School Transport & lunch -Kshs.22,000/=c.Annual Medical Cover -Kshs.34,141/=d.Monthly Rent -Kshs.47,500/=e.Educational & Personal effects -Kshs.20,000/=3. That this Honourable Court be pleased to issue any other Order that it may consider appropriate in the circumstance of the case herein.4. That cost of this application be provided for.

2. The application was supported by an affidavit sworn by Bethsheba Nyakerario Nyamweya, one of the Petitioners herein and a widow to the deceased herein, Daniel Muinde Kitua.

3. According to the deponent, she is the mother to SMK, the youngest and the only minor child of the deceased herein, Daniel Muinde Kitua. The said minor is a pupil at [ particulars withheld] Academy, having been enrolled to the said School by the deceased and admitted on the 1st day of September, 2015. During the lifetime of the deceased, it was averred, he personally paid and catered for the educational expenses of the minor child herein, whose tuition fees per term is Kenya Shillings Seventy Thousand (Kshs. 70,000/=) and School Transport stands at a sum of Kenya Shillings Twelve Thousand (Kshs. 12,000/=). However, in a further affidavit, it was deposed that at the time of the filing of the same the term’s tuition fees was Kenya Shillings Fifty Six Thousand, One Hundred and Eighty Four (Kshs. 56,184/=) and School Transport stood at a sum of Kenya Shillings Twelve Thousand (Kshs. 12,000/=).

4. It was averred that since the School re opened on the 30th day of August, 2022 for the current term, the aforesaid amount ought to have been paid by the 29th day of August, 2022 to enable the said minor continue with her education. It was therefore averred that it is quite urgent that this Court addresses the Summons dated the 12th day of May, 2022 and directs for the release of the amount sought herein to the School for continued education of the Child herein.

5. In addition, it was averred that during his lifetime, the deceased secured a Medical Cover for the said minor with APA Insurance Co. Ltd whose annual renewal premium stands at a sum of Kenya Shillings Thirty Four Thousand, One Hundred and Forty One (Kshs. 34,141/=).

6. The deponent averred that herself, the deceased and the minor resided, and still reside on LR No Nairobi/Block 72/2114 - Uhuru Gardens, House No B60, paying a monthly rent in the sum of Kenya Shillings Forty Seven Thousand, Five Hundred only (Kshs.47, 500/=) which monthly rent was being paid by the deceased. Further, over and above School Tuition Fee and School Transport, the minor child herein requires a sum of Kenya Shillings Ten Thousand (Kshs.10, 000/=) for lunch while at School and a sum of Kenya Shillings Twenty Thousand (Kshs.20,000/=) for purchase of Educational materials and other personal items thereof.

7. It was disclosed that at the time of his death, the deceased had worked with Fly 540 Limited, who are currently holding a sum of $7000 (7000 US Dollars) as his pay, which the said airline had declined to release without a court order from this Court.

8. It was however acknowledged that an objection to the making of the grant was filed before this Court on the 8th day of April, 2022 an indication that this Succession Cause is likely to take a while to resolve the issues therein. Considering that the minor child herein is the only child of the deceased still in school, as all the others are adults and already working, the deponent averred that it is only fair and just that the financial provisions sought herein above be provided pending the determination of these proceedings.

9. It was therefore sought that the management of Fly 540 Limited be authorized, directed and or Ordered to release the amount herein above set out to enable and facilitate the settlement of the bills herein for the benefit of the minor child, and to ensure that her educational pursuit is not compromised by lack of funds thereof. The deponent disclosed that following the sudden death of her husband and the father to the minor, she has had to financially struggle to ensure that she remains in the same School that her late father enrolled her in, to an extent of having to extensively borrow from family and friends in the process, and hence the need for urgent intervention by this Court. In her view, no prejudice will be occasioned to any party were the orders herein to be granted as prayed.

10. On behalf of the Applicant, it was submitted that it is not in dispute that the Applicant is the Widow of the deceased, and that her Child, SMK is the child of the deceased, a heir and a beneficiary in the Estate herein. It is also not in dispute that the said child is a pupil at [particulars withheld] Academy, having been so enrolled on the 1st day of September, 2015 and is currently in Year 7 and she is the only minor child of the deceased, all the others being adults and working.

11. After reiterating the averments in the supporting affidavit, the Applicant cited rule 36 (2) of the Probate and Administration Rules which stipulates that:“Every such grant shall be in form 47 and expressly limited for the purpose only of collecting and getting in and receiving the estate and doing such acts as may be necessary for the preservation of the estate and until a further grant is made.”

12. Since these Summons are not for doing of any acts contemplated under the above rule it was submitted that a grant ad colligenda defuncti would be unnecessary and inappropriate under the circumstances, as the applicant does not seek to collect and gather the assets of the estate. The Applicant also cited section 47 of the Law of Succession Act, which clothes this Court with unlimited Jurisdiction to entertain any application and make any Orders it may consider appropriate by providing that:The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such Orders therein as may be expedient.

13. Further reliance was placed on rule 73 of the Probate and Administration Rules which provides that:Nothing in these rules shall limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of Justice or to prevent abuse of the process of the Court.

14. It was therefore submitted that in view of the above clear provisions and considering that the deceased passed away on the 22nd day of December, 2021 and the appointment of Administrators in his Estate has been objected to by the Objector/Respondent, the Estate of the deceased in the intervening period, between death and appointment of Administrators vests in the hands of the Court, which has unlimited jurisdiction in addressing issues concerning the Estate at the time. This legal position, it was submitted, was adopted with approval by the Court in Civil Appeal No. 145 of 1990 – Trouistik Union International Ingrid Ursula Heinz v Jane Mbeyu & Another and Succession Cause No. 34 of 2018 – In the Estate of Mary Ng’ondu Mwanunga (Deceased).

15. In the Applicant’s submissions, prior to the appointment of Administrators in this Estate, the rights and obligations of the deceased are vested in this Court, with unlimited jurisdiction and powers within the Law to execute the legal mandate of the deceased. In this regard, it is the duty of the Court to protect and ensure the minors’ right to education and other basic needs as enshrined under the Children’s Act are meet from the resources due and owned by the deceased at the time of his demise. Similarly, since the minor child herein is an admitted heir and beneficiary of the estate herein, and considering the importance of education in her life, it was urged that the summons herein be allowed, and a portion of the funds held by Fly540 Limited be released to cater for the educational expenses of the minor child, and the amount utilized in her education can be considered at the point of distribution of the estate of the deceased.

16. In the Applicant’s view, the funds herein would be more beneficial to the minor child herein by way of investment in her education, than accessing it later, perhaps having dropped out of school by then, considering that she is already in year 7 and any disruption of her calendar will be detrimental to her educational pursuit. The estate herein is vast, with several properties available for distribution, and no party stands to suffer any prejudice were a portion of the funds to be utilized in the current education of the minor child, as sufficient properties will be available for distribution upon resolution of the Objection and appointment of Administrators herein.

17. It was argued that it is apparent that it was the wish and desire of the deceased to have his daughter acquire and obtain the best education possible hence the Court was urged to actualize the said wishes and desire by facilitating the released of the educational funds as prayed herein.

18. It was contended that the Summons dated 12th day of May, 2022 is merited, serves the best interest of the minor child herein and the aspirations of the deceased, whose responsibility it was to provide for the basic needs of his child, and as no party will suffer any prejudice were a portion of the funds to be released for the educational needs of the said child, the Court was urged to allow the Summons as prayed, this Court being the protector of the interests of the deceased and the minor child herein, in the best interest of the minor.

19. In opposing the Summons, the Objector herein, Rosemary Muinde Kitua, the deceased’s first wife took the objection that the Applicant had not been granted or petitioned for grant of letters of administration ad litem hence had no locus standi to file or prosecute the application on behalf of the estate of the deceased. It was contended that as the Applicant was neither the appointed executor under any will nor the grantee of grant ad colligenda bona for the state of the deceased hence lacked the capacity to bring thee summons.

20. In the submissions filed on behalf of the Objector, it was contended that the only way in which a person can act for or on behalf of the deceased is if he has been authorised to do so otherwise he would be intermeddling with the estate. In this regard reference was made to the decision in Hellen Mueni Kalinga and Another v Delmonte Kenya Ltd. In this case, it was submitted that neither the applicant nor the objector is a holder of any grant at the moment and as the orders sought are in the nature of collection of the deceased’s properties, one has got to obtain a grant be it temporary or final. The other alternative is to obtain a consent for partial distribution from all the beneficiaries of the estate. In this regard reference was made to The Matter of the Estate of William Kipsang Busienei[2021] eKLR. In the absence of these, the Court was urged to find that the applicant lacks locus standi to prosecute these summons.

Determination 21. I have considered the instant summons, the affidavits both in support of and in opposition thereto as well as the submissions filed. Since the Objector has not filed any replying affidavit, it is clear that the factual position is not in dispute hence the Court has to take the averments in the supporting affidavit as correct. It therefore follows that the only questions in controversy in so far as the present summons is concerned are questions of law.

22. The Objector’s bone of contention is that without grant of representation whether temporary or final having been sought and granted, the Applicant has no locus in seeking the orders sought herein.

23. Section 26 of the Law of Succession Act provides as follows:Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased’s net estate.

24. From the above section it is clear that an application thereunder can be made by or on behalf of a dependant. The section applies where the will, gift or law or combination of all the three does not make reasonable provision for a particular dependant. The order that the court is then required to make is for such reasonable provision as it thinks fit for that dependant out of the deceased’s net estate. Pursuant to the said provision the court may in its discretion under section 27 of the Act order a specific share of the estate to be given to the dependant, or to make such other provision for him or her by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit. However, before doing so the court must make a specific finding that the will, gift or law or combination of all the three does not make reasonable provision for the particular dependant.

25. In determining whether or not that is the position, the court is required under section 28 of the Act to consider the following:a.The nature and amount of the deceased’s property;b.Any past, present or future capital or income from any source of the dependant;c.The existing and future means and needs of the dependant;d.Whether the deceased had made any advancement or other gift to the dependant during his lifetime;e.The conduct of the dependant in relation to the deceased;f.The situation and circumstances of the deceased’s other dependants and the beneficiaries under any will;g.The general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant.

26. Since no allegation has been made about the existence of a will or gift by the deceased, it was therefore upon the applicant to satisfy the court that the provisions of the Law of Succession Act, which is the relevant law in intestate succession, does not make reasonable provision for her. That is why the law requires the court to consider the general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant. It is only after that that the court may proceed to order for either lump sum payment of periodical payments. Apart from that the applicant was required to present before the Court evidence showing the nature and amount of the deceased’s property.

27. In order to determine whether or not reasonable provision has been made to a dependant I agree with the decision in the case of R N M v R M N [2017] eKLR that;-“Proof of dependency is thus a condition precedent to the exercise of the discretion in section 29(b) cited hereinabove. In addition, while considering the meaning of a dependant under section 29 of the Act, the court held as follows in the case of Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & Others, Chuka Succ. Cause No. 12 of 2016:-“From the foregoing, a dependent under section 29 (b) and (c) must prove that he/she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency."I note in this regard that the Applicant did in her affidavits admit that the subject children were not the Deceased’s biological children, and did not provide any additional evidence of how the Deceased maintained the children, and the responsibility he undertook with respect to the said children. This Court cannot in the circumstances make any conclusive findings as to the said children’s dependency on the Deceased at this stage, which finding will have to await the confirmation proceedings.”

28. It is however clear that such proof is only required where the applicant falls within the category contemplated in section 29(b) of the Act and these are the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death. In other words the dependency of the applicant to the deceased is presumed by the law. In the same vein the decision in the case of M W v P N M & H T K [2017] eKLR is distinguishable from this case. Accordingly, the authority is not relevant where the claimant falls under section 29(a) of the Actand these are the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death. The applicant herein being the child of the deceased therefore does not have to prove dependency. In this case, the Applicant has deposed to the fact that prior to the demise of the deceased, the deceased was maintaining her and the minor in terms of her educational, health and nutritional needs.

29. Regarding lack of consent of the Respondent, my reading of sections 26, 27 and 28 of the said Actreveals that the court has discretion to decide whether or not to make such provision. My take of the decision in In Re Estate of M'mumuu Metaya (Deceased) [2009] eKLR is that one of the factors that the court may take into consideration is whether or not the other beneficiaries have consented to the orders sought. However, that consent cannot be a condition precedent to the making of such an order otherwise, it would mean that the court’s discretion would be fettered by lack of consent. Accordingly lack of consent of the other beneficiaries is not necessarily fatal to the grant of the orders sought.

30. Ordinarily courts are reluctant to issue orders whose effect is to partly distribute the estate before a grant is issued and confirmed. I therefore agree with the decision in the case of M W v P N M & H T K[2017] eKLR that;-“…this rush to cash out the minor’s entitlement is not in her best interests. The best interests of the child will be served through the conclusion of the succession cause, as required by section 82(d) of theLaw of Succession Act, confirmation of the grant and the determination of what the child is entitled to, which will definitely include what the applicant is entitled to, if at all, and what the respondents are entitled to. The mix up in the application before me can only be to the detriment of the interests of the child. In the meantime, I need to remind the applicant that the child has the right to parental responsibility as per article 53(1) (e) of theConstitution which provides that both the mother and father have the duty to fulfil this right. Upon the death of the father this responsibility remains with the mother. She retains the parental responsibility for the child and is expected to make decisions that are in the best interests of the child.

31. In my view based on section 47 of the Law of Succession Act, as read with rule 73 of the Probate and Administration Rules, this Court has inherent powers to make such orders as may be necessary for the ends of Justice or to prevent abuse of the process of the Court. In The Matter of The Estate of George M’mboroki Meru HCSC No. 357 of 2004, Ouko, J (as he then was) expressed himself inter alia as follows:“TheLaw of Succession Act, like section 3A of the Civil Procedure Act has a saving provision as to the court’s jurisdiction under section 47 which is affirmed by rule 73 of the Probate and Administration Rules. It is therefore accepted that the court retains certain intrinsic authority in the absence of specific or alternative remedy, a residual source of power, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent abuse of its process, to do justice between the parties and to secure a fair trial between them.”

32. Similarly, Kimaru, J in Rev. Madara Evans Okanga Dondo v Housing Finance Company of KenyaNakuru Hccc No. 262 of 2005 held:“The court will always invoke its inherent jurisdiction to prevent the abuse of the due process of the court. The jurisdiction of the court, which is comprised within the term “inherent”, is that which enables it to fulfil itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is part of procedural law, both civil and criminal, and not part of the substantive law; it is exercisable by summary process, without plenary trial, it may be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial discretion; it may be exercised even in circumstances governed by rules of the court. The inherent jurisdiction of the court enables the court to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process. In sum, it may be said that the inherent jurisdiction of the court is virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.”

33. It was therefore appreciated inFirst American Bank of Kenya Ltd v Gulab P Shah & 2 Others Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65 that the law is not that the High Court is only vested with inherent power and jurisdiction to prevent abuse of the Court process or to further the ends of justice in matters falling within the Civil Procedure Act and Rules but that the Court is clothed with inherent powers and jurisdiction all the time in all causes irrespective of legislative or other juridical foundations of any such cause or matter before it as the juridical root of the Court’s inherent power does not lie in section 3A of the Civil Procedure Act but in the nature of the High Court as a Superior Court of judicature.

34. I therefore have no doubt in my under that over and above the powers conferred upon this court by section 76 of the Law of Succession Act, this court may in appropriate cases draw upon its inherent powers, a residual power, to grant appropriate orders. It must however be noted that the Court’s inherent jurisdiction is not a substitute for the jurisdiction conferred upon the Court under the Constitution or by statute. The Court’s inherent jurisdiction is a reserve upon which the Court draws to ensure the ends of justice are met and to prevent abuse of its process. As was held in Industrial & Commercial Development Corporation v Otachi [1977] KLR 101; [1976-80] 1 KLR 529, section 3A is not a panacea for all ills. It was therefore held inElephant Soap Factory Ltd v Nahashon Mwangi & Sons Nairobi HCCC No. 913 of 1971 that the court will not invoke its inherent jurisdiction when there is an express provision dealing with the matter. Accordingly, where there is no express legal provision covering the circumstances before the Court but the justice of the case cry loud for recognition, the Court must draw upon its reservoir and grant appropriate orders so that justice can be done.

35. In this case, the Summons have been brought on behalf of a minor. It is contended which contention is not expressly challenged that all the other beneficiaries of the estate of the deceased are passed the age of majority. In order to determine whether or not reasonable provision has been made to a dependant I agree with the decision in the case of R N M v R M N [2017] eKLR that;-“Proof of dependency is thus a condition precedent to the exercise of the discretion in section 29(b) cited hereinabove. In addition, while considering the meaning of a dependant under section 29 of the Act, the court held as follows in the case of Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & Others, Chuka Succ. Cause No. 12 of 2016:-“From the foregoing, a dependent under section 29 (b) and (c) must prove that he/she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency."I note in this regard that the Applicant did in her affidavits admit that the subject children were not the Deceased’s biological children, and did not provide any additional evidence of how the Deceased maintained the children, and the responsibility he undertook with respect to the said children. This Court cannot in the circumstances make any conclusive findings as to the said children’s dependency on the Deceased at this stage, which finding will have to await the confirmation proceedings.”

36. It is however clear that such proof is only required where the applicant falls within the category contemplated in section 29(b) of the Act and these are the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death. Accordingly, the authority is not relevant where the claimant falls under section 29(a) of the Act and these are the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death. The applicant herein being a daughter of the deceased does not therefore have to prove dependency. In other words the dependency of the applicant to the deceased is presumed by the law. In the same vein the decision in the case of M W v P N M & H T K [2017] eKLR is distinguishable from this case.

37. Regarding lack of consent of the Respondent, my reading of sections 26, 27 and 28 of the said Act reveals that the court has discretion to decide whether or not to make such provision. My take of the decision in In Re Estate of M'mumuu Metaya (Deceased) [2009] eKLR is that one of the factors that the court may take into consideration is whether or not the other beneficiaries have consented to the orders sought. However, that consent cannot be a condition precedent to the making of such an order otherwise, it would mean that the court’s discretion would be fettered by lack of consent. Accordingly lack of consent of the other beneficiaries is not necessarily fatal to the grant of the orders sought.

38. However, unless an applicant complies with the above provisions, it would be premature to seek an order for the release of certain sums forming part of the estate to one or some of the beneficiaries since to do so may well amount to partial distribution thereof. I therefore agree with the decision in the case of M W v P N M & H T K 2017 (supra) that;-“…this rush to cash out the minor’s entitlement is not in her best interests. The best interests of the child will be served through the conclusion of the succession cause, as required by section 82(d) of theLaw of Succession Act, confirmation of the grant and the determination of what the child is entitled to, which will definitely include what the applicant is entitled to, if at all, and what the respondents are entitled to. The mix up in the application before me can only be to the detriment of the interests of the child. In the meantime, I need to remind the applicant that the child has the right to parental responsibility as per article 53(1)(e) of the Constitution which provides that both the mother and father have the duty to fulfil this right. Upon the death of the father this responsibility remains with the mother. She retains the parental responsibility for the child and is expected to make decisions that are in the best interests of the child.”

39. In this case the Applicant has averred that she has had to make arrangements including assistance from relatives to cater for the minor’s upkeep. In these kind of matters, the law is very clear on the considerations that the court ought to take into place in arriving at its determination. The Constitution of Kenya, 2010 in article 53(2) provides as follows:A child’s best interests are of paramount importance in every matter concerning the child.

40. Section 4(2) and 3(b) of the Children Act states as follows:(2)In all actions concerning children, whether undertaken by Public or Private Welfare Institution, Courts of Law, Administrative Authorities or Legislative bodies, the best interest of the child shall be the primary consideration.(3)All Judicial and Administrative Institutions and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with the adopting a course of action calculated to–a.Safeguarding and promoting the rights and welfare of the child;b.and promote the welfare of the child.

41. It is therefore clear that in all matters concerning a child, whether or not the child is a party, the first and paramount consideration is the interest of the child. As was appreciated by Madan, J (as he then was) in Yasmin v Mohamed [1973] EA 370:“The High Court is especially endowed with the jurisdiction to safeguard the interests of infants, as the court is the parent of all infants. The welfare of the infants is paramount and it is dear to the heart of the court. There would be no better tribunal to perform the task more wisely as well as affectionately. All infants in Kenya of whatever community, tribe, sect fall within the ambit of the Guardianship of Infants Act and the court is charged with the sacred duty of ensuring that their interests remain paramount and are duly preserved.”

42. The Court will however not take actions which amount to deprivation of the other beneficiaries of their entitlement to the estate of the deceased simply because one of the beneficiaries is a minor. When it is clear that one of the beneficiaries is taking advantage of the age of the minor to unjustly benefit therefrom, the Court will decline to assist particularly where the prime mover is a person who legally shared parental responsibility with the deceased. This is my understanding of the decision in M W v P N M & H T K [2017]eKLR.

43. In application such as the present one, the Court ought to be very cautious since the administration of the deceased’s estate is yet to be undertaken and the real beneficiaries of the estate and their respective entitlements are yet to be identified and determined. In such applications, there is always a risk that the estate may be deflated before the distribution is done. However, where the facts are not in dispute particularly as regards the extent of the estate, the Court’s hands are not tied in making a decision that is just. In this case based on the evidence placed before me I am satisfied that the circumstances of the subject minor require urgent intervention by this Court.

44. Accordingly, I find merit in the Summons dated 12th May, 2022. I direct the Petitioners and the Objector to expedite these proceedings preferably by way of mediation so that all beneficiaries’ entitlements are identified.

45. There will be no order as to costs. It is so ordered.

G V ODUNGAJUDGERULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5THDAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: