On the 18th April 2024, this Court issued a certificate of confirmation of grant to the estate of the Late Daniel Muthami Kiema (Deceased) to Lilian Mwania & Rose Nduku Musila. A schedule of distribution was attached.
Later, the administrators moved the Court by way of summons for rectification of grant. The Summons are dated 27th January 2025 and are seeking that the grant issued to Lilian Mwania & Rose Nduku Musila on the 18th April 2024 be rectified or amended by removing Rose Nduku Musila as one of the administrators in trust, so as to read Lilian Mwania as the only beneficiary and administrator.
The basis for the request for rectification is that during the execution of the Certificate of Confirmation of Grant at Kenya Police Widow and Children Pension Office, they were instructed that the widow and children pension scheme only applies to widow and children and that the said certificate of grant could not be enforced since it does not fall under the category of either the widow or a child pursuant to the provisions of section 18 of the Pension Act.
In their submissions, they stated that they faced an unusual decline of assistance from the treasury division concerned with disbursing proceeds from the Kenya Police Widows and Children pension scheme. Further that none of the officers was willing to write down any direction on how they would want to proceed with the matter and indicated that they would only comply with a court order. That the officers contend that the deceased accrued benefits can only be accessed by either the widow or the children and not the administrator in trust. That this reason is purely based on administrative procedures and that as such the court has the discretion to dictate how best to execute the grant.
They urged that the treasury officers be compelled to abide with the grant provision in their current status and condition since the confirmation of grant is in conformity with the provisions of section 84 of the Law of succession which requires an administrator to be appointed where minors are involved. The petitioner urged that the orders need to be granted since the administrator and the beneficiaries who are minors are living in a deplorable conditions and risk being kicked out of their rental house and school due to the pending arrears. They urged the court to exercise its inherent powers and compel the authorities at the National Treasury Bima house and officials at Kenya Police Widow and Children Pension Scheme to execute the said grant. Both Lilian Mwania and Rose Nduku Musila swore affidavits supporting the application and both appeared before court to support the application.
I have taken time to peruse the court file and do note that the letters of Administration intestate of all the estate of Daniel Muthami Kiema was granted to Lilian Mwania. Thereafter the certificate of confirmation of a grant issued was issued to Lilian Mwania and Rose Nduku Musila on the basis that the beneficiaries were minors. The schedule of distribution attached shows that the share of heirs is to be registered wholly in the name of Lilian Mwania through the firm of (Gakunju & Company Advocates clients account no. 1319563538 held at KCB Kiambu Branch. This is replicated on the other properties.
On the face of it the share of the estate listed is to devolve to one beneficiary Lilian Mwania through its advocates. It is therefore not clear why the applicant now seeks that Rose Nduku Musila be removed from being an administrator and yet she has not been listed as a beneficiary. Thus, could the issue with the National Treasury be that the benefits are going directly to the heir through her advocate or that they are two administrators in place?
This court takes not of the provision of Sections 20 and 21 of the Widow’s and Children’s Pension Act which provides as follows;
20. Proof of claims to pension
The authorized officer may require such proof as he considers desirable that any person who claims to be entitled to a pension under this Act or on behalf of whom such claim is made, is alive and entitled to the pension, and the payment of any pension may be refused until such proof is furnished to the satisfaction of the Permanent Secretary of the Treasury.
21. Pension not to be assigned
Except as may be expressly provided in this Act, no pension payable, and no rights of any person, under the provisions of this Act shall be assignable or transferable or liable to be attached, sequestered or levied upon for, or in respect of any debt or claims whatsoever.
From these sections, the authorized officer while implementing the provision of the Widow’s and Children’s Pension Act need to be satisfied that the claimant in this case is alive and entitled to the pension. Further that unless expressly provided by the Act, pension cannot be assigned. This Court also notes that apart from the assertions by the Applicant’s advocate, no evidence or material documentation has been provided to this Court to show the reason for the decline by the national treasury officers.
Further this Court notes that the applicant has moved the Court under the provisions of Section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules. This section allows for rectification of grant to correct a mis-description of a property or to correct a name which has not been fully or properly described in the Grant. See the case of In re Estate of James Wainaina Ng’ang’a (Deceased) [2021] eKLR.
In this instance, the motion to amend the grant by removing Rose Nduku Musila goes to the substratum and beyond what is envisaged under section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules. In the circumstances, it would be irregular to remove an administrator to a joint grant that has been duly confirmed, on the basis of an unexplained decline by an authorized officer under the Widows and Children’s Pension Act to authorise payment of a claim,who only plays a role in regard to one item (pension) that forms part of the estate of the deceased. Moreso where the grant was a joint one for the benefit of the minors, and the person being sought to be removed was infact enjoined so as to safeguard the minor's interests.
Further, this Court is cognisant that its inherent powers are be exercised judiciously and so as to meet the ends of justice. By the Court directly ordering the release of the funds without having not been supplied with tangible reasons for the refusal by the pensions authorising officer, that amounts to usurpation of the authorizing officer’s mandate,an act which this Court ought not and cannot do. Further granting such an order to compel an authorising officer who is not a party to the proceedings to undertake an action in the ordinary course of his duty will be condemning him/her unheard and tantamount to usurping their powers.
Consequently, the Summons dated 27th January 2025 is hereby dismissed. The applicant is at liberty to present any other application for consideration by the Court within the legal parameters by law permitted with material evidence.