REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT KAKAMEGA.
SUCCESSION CAUSE NO. 517 OF 2006.
IN THE MATTER OF THE ESTATE OF A M A (DECEASED)
M K :::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT
VERSUS
A A K ::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
RULING.
INTRODUCTION.
1. A M A, the deceased herein, died on the 4th of October, 2005. Grant of Letters of Administration was confirmed in the names of the Administrators A A K and M K on the 17th day of October, 2014.
The application.
2. By the summons for directions dated 12th May, 2015 brought under section 47, Laws of Succession Act, Rule 73 of Probate and Administration Rules, M K is seeking for orders that A A K be directed to sign the required documents to open a bank account which shall hold funds in trust for the benefit of L K within a given time failure to which the Executive Officer of Kakamega High Court be allowed to sign. The application is based on the grounds that the applicant and the respondent are required to open a bank account jointly to hold the share of L K in trust since they are joint administrators of the deceased’s estate herein.
The response.
3. A A K responded to the application hereinabove by filing a replying affidavit on the 6th day of January, 2016. He depones that he does not wish to operate a joint account or to have any joint dealings with the applicant because she has continued to show him a lot of disrespect. He claims that he was not served with the application herein but discovered this when he decided to inquire the position of this matter from the registry.
4. He contests the averments on the affidavit of service and adds that he was given legal custody of the child and appointed the guardian by an order of the court dated 26th May, 2006 as shown by a copy of the certificate of custody and guardianship. “AAK – 1”. He further opines that the applicant has no best interests of the child at heart but is only interested in the estate of the deceased which should be preserved for the child and the deceased’s parents who are beneficiaries. He reiterates that the applicant only got a child (L K) with the deceased and the two were never married whatsoever for all interests and purposes.
Determination.
5. Although the application herein was to be canvassed by way of written submissions, I note from the records that none of the parties have filed their respective submission. The only issue for determination is whether a joint account should be opened in the names of the Administrator herein in trust for the child L K.
6. From the affidavit, it is clear that there are differences between the administrators of the deceased’s estate herein. These differences however should not hinder them from administering the estate of the deceased as required by law. It is their duty to preserve the estate of the deceased which estate has been properly described in the certificate of confirmation of grant. The issue of custody of the child herein should not even arise at this stage.
7. Section 79, 82 and 83 of the Law of succession Act Cap 160 explicitly outlines the duties and responsibilities of the Administrators/Executors. The administrators should be well versed with the provisions therein to be able to properly administer the estate of the deceased. It is also a crime to intermeddle with any property of a deceased as shown by the provisions of section 45 of the Law of Succession Act.
8. On the matter at hand, it is prudent and of utmost importance that death gratuity for L K be deposited in an interest earning account. The child is now sixteen (16) years or so and will soon be required to attend college. If the sum is left to just lie without earning any interest then it may not be enough to sustain her in school.
9. It is therefore ordered that the administrators jointly open an interest earning fixed deposit account where the child’s death gratuity will be held until she attains the age of majority. The application by M K is allowed and A A K ordered to sign the bank papers for the fixed deposit account in trust for the child. If A fails to sign within the next 14 days from the date of this ruling then the Executive Officer of Kakamega High Court will be allowed to sign.
SIGNED, DATED at KAKAMEGA this 14TH day of NOVEMBER, 2016.
C. KARIUKI
JUDGE.
In the presence of:-
...........................In person .................................................................... Applicant.
...........................In person ...................................................for the Respondent.
............................Anunda ........................................................... Court Assistant