REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
HC P & A CAUSE NO E033 OF 2023
IN THE MATTER OF THE ESTATE OF HOSEAH KAREITHI NDERI aka HOSEAH KARIITHI NDERI (DECEASED)
CHARITY WAWIRA NDERI ………………………PETITIONER/APPLICANT
RULING
1. Before me is a Notice of Motion application dated 17th May 2023. The same is brought under the provisions of Section 67 (1) of the Law of Succession Act, Rule 36 of the Probate and Administration Rules and Article 159(2) (d) of the Constitution of Kenya, 2010. The said application supported by the affidavit of CHARITY WAWIRA NDERI, the Petitioner/Applicant herein sworn on even date. The grounds upon which the motion is based have been listed in the body of the application. In brief the Petitioner/Applicant states that the deceased died on 10th May, 2023 and there is now a very urgent need to settle hospital bills, mortuary charges and interment costs, amongst other outgoings, whose estimated cumulative amount has been given as Kes.3,013,878.14 before the deceased, who is the father of the Petitioner/Applicant, is buried.
2. The Petitioner/Applicant therefore seeks orders that: -
a. I certify the application urgent and dispense with service;
b. I issue Letters of Administration ad colligenda bona to the Petitioner/Applicant so that she can access the deceased’s bank accounts with Ecobank and NCBA;
c. I permit the Petitioner/Applicant to access and withdraw funds from the deceased said accounts for purposes of settlement of the outstanding medical bills at the Aga Khan Hospital, Mombasa, said to amount to Kes.999,599.14, mortuary charges, estimated to be Kes.51,560.00 at the time the body will be collected, burial expenses of Kes.1,417,000.00, outstanding staff salaries and utility bills for the month April 2023 said to be Kes.170,499.74 and legal fees in the sum of Kes.375,225.00; and
d. I provide for costs.
3. I have perused the said Notice of Motion application, the supporting affidavit of the Petitioner/Applicant as well as the documents attached thereto in support of the application. I note the Petitioner/Applicant filed the motion with the consent of her siblings. Their mother, the only wife of the deceased, died in the year 2010. The consent, together with the national identification cards of the siblings, have been attached as exhibits 1 and 2. The Petitioner/Applicant has deposed that the decedent, her father, died on 10th May, 2023 at the Aga Khan Hospital, Mombasa. At the time of his death the total hospital bill, inclusive of doctors’ fees was Kes.4,714,244.14, out of which Kes.3.300,000 was settled pursuant to an order that this Honorable Court issued on 9th May 2023 in Mombasa High Court Family Miscellaneous Case No E015 of 2023, leaving a balance of Kes.999,599.14 which is presently outstanding. The Petitioner/Applicant estimates that the mortuary fees, reckoned up to the day they expect the body will be released, will be Kes.51,560.00. She has estimated that that the interment costs will Kes.1,417,000.00 given the fact that the decedent will be buried in his rural home at Kirinyaga. The burial has been set for 26th May 2023. In support of this she has annexed a budget which she prepared with her family members. Further expenses include pending salaries and utility bills, which amount to Kes.170,494.74. Lastly she avers that a sum of Kes.375,225.00 must be paid in respect of the agreed legal fees.
4. I have carefully considered the motion, the supporting affidavit and the documents attached as exhibits. I am satisfied that there is proof of the death of the deceased as evidenced by the death certificate dated 17th May 2023. I have also seen the letter written by the Assistant County Commissioner of Kongowea Division, one Mr. Henry K. Rop, dated 18th May 2023, wherein the beneficiaries of the estate of the deceased are listed. I have also seen the burial permit, hospital bills, estimated mortuary charges and the proposed budget for the funeral.
5. I am satisfied that what has been sought is reasonable in the circumstances of this case. The Petitioner/Applicant and her siblings will be required to settle the hospital bills before the body of their father is released to them. In like manner, the mortuary charges must be paid prior to the release of the body. It would appear to me that the deceased was a man of means. As an African man his family will feel duty bound to give him a befitting send off. The proposed budget looks reasonable to me given the station in life the decedent appears to have occupied. The death of the deceased shouldn’t cause undue hardship to his employees who have expenses that they must meet notwithstanding the demise of their employer. I therefore agree that the pending wages and utility bills ought to be paid without further delay. I also allow the amount sought as legal fees as there doesn’t appear to be any contestation in regard to this item.
6. Given the nature of the motion I certify the same as being urgent and consider it exparte. Having carefully considered the same I find and hold that it is merited.
7. The upshot of the foregoing is that I allow the Notice of Motion application dated 17th May, 2023. I therefore order that: -
a. Grant of Letters of Administration ad colligenda bona does issue to CHARITY WAWIRA NDERI permitting her to access the deceased bank accounts to wit:-
i. Ecobank Limited, Moi Avenue, Mombasa (Account No. 6676000106; and
ii. NCBA Bank, Moi Avenue, Mombasa (Account No. 1001825026);
both in the name of HOSEAH KAREITHI NDERI aka HOSEAH KARIITHI NDERI; and
b. The said CHARITY WAWIRA NDERI be and is hereby allowed to access and withdraw from the said accounts a sum of money NOT exceeding Kes.3,013,878.14 for purposes of settling:-
i. outstanding medical bill at Aga Khan Hospital Mombasa – Kes.999,599.14;
ii. Mortuary charges – Kes.51,560.00;
iii. Funeral expenses – Kes.1,417,000.00;
iv. Staff salaries and utility bills for the month of April 2023 – Kes.170,494.74; and
v. Legal fees – Kes.375,225.00.
8. The said grant is for purposes of making withdrawal from the above stated accounts and making payments in respect of the various item I have listed above and for no other purpose(s) whatsoever.
9. The avoidance of doubt the grant I have issued authorizes the Petitioner/Applicant to withdraw from the deceased’s said accounts the total sum Kes.3,013,878.14 (read Kenya Shillings Three Million Thirteen Thousand Eight Hundred and Seventy Eight and cents fourteen only) and no other or further sums of money may be withdrawn from the said account until a full grant of representation is made or further orders of the court are issued.
Orders accordingly.
DATED, SIGNED and DELIVERED virtually at Mombasa this 19TH day of MAY 2023
…………..…………………
GREGORY MUTAI
JUDGE
IN THE HIGH COURT OF KENYA AT MOMBASA
HC P & A CAUSE NO E033 OF 2023
IN THE MATTER OF THE ESTATE OF HOSEAH KAREITHI NDERI aka HOSEAH KARIITHI NDERI (DECEASED)
CHARITY WAWIRA NDERI ………………………PETITIONER/APPLICANT
RULING
1. Before me is a Notice of Motion application dated 17th May 2023. The same is brought under the provisions of Section 67 (1) of the Law of Succession Act, Rule 36 of the Probate and Administration Rules and Article 159(2) (d) of the Constitution of Kenya, 2010. The said application supported by the affidavit of CHARITY WAWIRA NDERI, the Petitioner/Applicant herein sworn on even date. The grounds upon which the motion is based have been listed in the body of the application. In brief the Petitioner/Applicant states that the deceased died on 10th May, 2023 and there is now a very urgent need to settle hospital bills, mortuary charges and interment costs, amongst other outgoings, whose estimated cumulative amount has been given as Kes.3,013,878.14 before the deceased, who is the father of the Petitioner/Applicant, is buried.
2. The Petitioner/Applicant therefore seeks orders that: -
a. I certify the application urgent and dispense with service;
b. I issue Letters of Administration ad colligenda bona to the Petitioner/Applicant so that she can access the deceased’s bank accounts with Ecobank and NCBA;
c. I permit the Petitioner/Applicant to access and withdraw funds from the deceased said accounts for purposes of settlement of the outstanding medical bills at the Aga Khan Hospital, Mombasa, said to amount to Kes.999,599.14, mortuary charges, estimated to be Kes.51,560.00 at the time the body will be collected, burial expenses of Kes.1,417,000.00, outstanding staff salaries and utility bills for the month April 2023 said to be Kes.170,499.74 and legal fees in the sum of Kes.375,225.00; and
d. I provide for costs.
3. I have perused the said Notice of Motion application, the supporting affidavit of the Petitioner/Applicant as well as the documents attached thereto in support of the application. I note the Petitioner/Applicant filed the motion with the consent of her siblings. Their mother, the only wife of the deceased, died in the year 2010. The consent, together with the national identification cards of the siblings, have been attached as exhibits 1 and 2. The Petitioner/Applicant has deposed that the decedent, her father, died on 10th May, 2023 at the Aga Khan Hospital, Mombasa. At the time of his death the total hospital bill, inclusive of doctors’ fees was Kes.4,714,244.14, out of which Kes.3.300,000 was settled pursuant to an order that this Honorable Court issued on 9th May 2023 in Mombasa High Court Family Miscellaneous Case No E015 of 2023, leaving a balance of Kes.999,599.14 which is presently outstanding. The Petitioner/Applicant estimates that the mortuary fees, reckoned up to the day they expect the body will be released, will be Kes.51,560.00. She has estimated that that the interment costs will Kes.1,417,000.00 given the fact that the decedent will be buried in his rural home at Kirinyaga. The burial has been set for 26th May 2023. In support of this she has annexed a budget which she prepared with her family members. Further expenses include pending salaries and utility bills, which amount to Kes.170,494.74. Lastly she avers that a sum of Kes.375,225.00 must be paid in respect of the agreed legal fees.
4. I have carefully considered the motion, the supporting affidavit and the documents attached as exhibits. I am satisfied that there is proof of the death of the deceased as evidenced by the death certificate dated 17th May 2023. I have also seen the letter written by the Assistant County Commissioner of Kongowea Division, one Mr. Henry K. Rop, dated 18th May 2023, wherein the beneficiaries of the estate of the deceased are listed. I have also seen the burial permit, hospital bills, estimated mortuary charges and the proposed budget for the funeral.
5. I am satisfied that what has been sought is reasonable in the circumstances of this case. The Petitioner/Applicant and her siblings will be required to settle the hospital bills before the body of their father is released to them. In like manner, the mortuary charges must be paid prior to the release of the body. It would appear to me that the deceased was a man of means. As an African man his family will feel duty bound to give him a befitting send off. The proposed budget looks reasonable to me given the station in life the decedent appears to have occupied. The death of the deceased shouldn’t cause undue hardship to his employees who have expenses that they must meet notwithstanding the demise of their employer. I therefore agree that the pending wages and utility bills ought to be paid without further delay. I also allow the amount sought as legal fees as there doesn’t appear to be any contestation in regard to this item.
6. Given the nature of the motion I certify the same as being urgent and consider it exparte. Having carefully considered the same I find and hold that it is merited.
7. The upshot of the foregoing is that I allow the Notice of Motion application dated 17th May, 2023. I therefore order that: -
a. Grant of Letters of Administration ad colligenda bona does issue to CHARITY WAWIRA NDERI permitting her to access the deceased bank accounts to wit:-
i. Ecobank Limited, Moi Avenue, Mombasa (Account No. 6676000106; and
ii. NCBA Bank, Moi Avenue, Mombasa (Account No. 1001825026);
both in the name of HOSEAH KAREITHI NDERI aka HOSEAH KARIITHI NDERI; and
b. The said CHARITY WAWIRA NDERI be and is hereby allowed to access and withdraw from the said accounts a sum of money NOT exceeding Kes.3,013,878.14 for purposes of settling:-
i. outstanding medical bill at Aga Khan Hospital Mombasa – Kes.999,599.14;
ii. Mortuary charges – Kes.51,560.00;
iii. Funeral expenses – Kes.1,417,000.00;
iv. Staff salaries and utility bills for the month of April 2023 – Kes.170,494.74; and
v. Legal fees – Kes.375,225.00.
8. The said grant is for purposes of making withdrawal from the above stated accounts and making payments in respect of the various item I have listed above and for no other purpose(s) whatsoever.
9. The avoidance of doubt the grant I have issued authorizes the Petitioner/Applicant to withdraw from the deceased’s said accounts the total sum Kes.3,013,878.14 (read Kenya Shillings Three Million Thirteen Thousand Eight Hundred and Seventy Eight and cents fourteen only) and no other or further sums of money may be withdrawn from the said account until a full grant of representation is made or further orders of the court are issued.
Orders accordingly.
DATED, SIGNED and DELIVERED virtually at Mombasa this 19TH day of MAY 2023
…………..…………………
GREGORY MUTAI
JUDGE