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JudgmentIn the Estate of LEPILALE BOBBY LEMALEN6 min read

In the Estate of LEPILALE BOBBY LEMALEN

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

SUCCESSION CAUSE NO E046 OF 2024 (Ad Colligenda Bona)

IN THE MATTER OF THE ESTATE OF BOBBY LEMALENI LEPILALE (DECEASED)

SYLVIA SANTILAN LENAIYARRA ...................................................................APPLICANT

RULING

  1. This ruling is made following compliance with the orders made in the interim ruling delivered herein on 24th July 2024.
  2. The Applicant herein approached this court by way of a Petition for special letters of administration Ad colligenda bona dated the 24th of June 2024 seeking to access the deceased’s accrued benefits in relation to the deceased’s life Insurance Policy Cover through his then employer Kenya Pipeline Corporation [particulars withheld] for the sole purpose of paying school fees, education requirements and maintenance costs for the CTL aged 15 years, and CLL aged 9 years.
  3. The application is supported by the affidavit of the Applicant herein sworn on even date wherein she depones that she is the widow to the late Bobby Lemaleni Lepilale (deceased) and the mother to the minors herein. She further depones that CTL is a Form 2 student at (particulars withheld) while CLL is a grade 4 student at (particulars withheld) and both need school fees and immediate family costs that the deceased used to take care of. In this regard She has attached copies of the Children’s school fees structures from their respective schools which her counsel submitted that those are standard across the years unless otherwise altered.
  4. Finally, the applicant pleads that there is extreme necessity and urgency that she be granted letters of administration ad colligenda bona of the estate of the deceased limited for the purpose only of collecting the deceased’s life insurance benefits basically to enable her to pay the school fees and pay maintenance costs until further representation be granted over the deceased’s estate.
  5. Following the orders made in the interim ruling delivered herein on 24th July 2024, the Applicant filed a supplementary affidavit attaching a bundle of the Employment and Policy documents from the deceased’s then employer Kenya Pipeline Corporation.
  6. The Applicant depones that she is employed by the Kenya Revenue Authority where she currently serves in the Corporation Support Department and has annexed as ‘SSL-8”, a letter from her employer dated 31/7/2024, unfortunately, the said letter is silent on the salary and or allowance of the Applicant. She further depones that prior to the deceased’s death, they used to share financial responsibilities wherein he would meet the costs of the children’s school fees, workers salaries both in their Nairobi and upcountry homes, maintenance of their older parents and other bills and she would meet the cost of the repayment of the house mortgage, food clothes, older parents care and other bills that relate to the running of the home.
  7. That since the demise of her husband, she has been left to meet both the share of the bills that she used to take care of together with the financial burdens that her late husband attended to. Whereas she earns a salary, it has not been enough to meet all the bills and financial demands that she had to take over from her late husband.
  8. The Applicant depones that she now needs the support of an extra source of income in the interim as she adjusts and plans for the comfort and the wellbeing of the family in the long run and access to her late husband's life insurance benefits will assist her in the short-term especially with the children's school fees.
  9. In a letter dated 06/08/2024 addressed to the Applicant’s advocates, the deceased’s then employer confirms that the Group life payment for the late Mr. Bobby Lemalen Lepilale is as follows:
  10. Life benefits -Kshs.15,238,119.00
  11. Last expense -Kshs.200,000.00

Analysis and Determination

  1. I have considered the application herein, affidavit in support and the supplementary affidavit sworn by the applicant and take cognizance of the fact that as a general principle of the law of succession, grants may only be made with notice under section 67 of the Law of Succession Act which provides as follows:

“67. Notice of application for grant

  1. No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired.”
  2. This position has been reiterated in a litany of cases including IN RE ESTATE OF MARY SYOKWIA KYALILI [2015] EKLR AND MARY WAITHERA V ANN NDEGWA & ANOTHER [2014] EKLR. However, where special circumstances exist, the Law of Succession Act allows application for a limited grant of letters of administration ad colligenda bona for purposes of collecting and preservation of the estate. The same is entrenched under rule 36 of the Probate and Administration rules which provides that:

“Where owing to special circumstances the urgency of the matter is so great that it would not be possible for the court to make a full grant of representation to the person who would by law be entitled thereto in sufficient time to meet the necessities of the case, any person may apply to the court for the making of a grant of administration ad colligenda bona defunct of the estate of the deceased.”

  1. I note from the application and the affidavits in support that the Applicant primarily seeks grant of letters ad colligenda bona in order to access benefits that accrued in relation to the deceased’s Life Insurance Cover through his then employer Kenya Pipeline Corporation for purposes of paying school fees for her children together with upkeep/maintenance.
  2. There is no doubt that an issue pertaining to the education of children especially minors is an issue that requires the attention and urgency of court, considering that it pertains to the rights of children especially the right to education. This is a right entrenched under our Constitution and in particular Article 53(1) underlines the fact that children are entitled to compulsory basic education and thus, this Court appreciates that the payment of school fees and related expenses is an urgent matter which may necessitate the filing of an application as presently before the court in terms of Rule 36 (1) of the Probate and Administration. This position was shared by court in IN RE ESTATE OF MARY SYOKWIA KYALILI [2015] EKLR.
  3. In the instant application, there is no contention that the minors are children of the applicant and the deceased and birth certificates and school fees structures have been attached to demonstrate the same.
  4. Taking into account all the circumstances of the case and the best interest of the children, this court does find that the prompt payment of urgent needs of the deceased’s children such as school fees, upkeep and related expenses is necessary. This however should be limited only to the minors CTL and CLL.
  5. Consequently, I make the following Orders :-
  6. A Grant of Letters of Administration ad colligenda bona is granted to the Applicant for the purpose of solely having the deceased’s then employer Kenya Pipeline Corporation issue the Applicant with cheques for outstanding school fees drawn in the names of the respective Schools the children herein attend.
  7. Kenya Pipeline Corporation does issue the Applicant with a separate cheque of Kenya Shillings One Hundred Thousand (Kshs.100,000/=) monthly only for the general upkeep of the Applicant and the children commencing the month of issuance of the orders herein till a full grant is obtained or further orders issued to the contrary.
  8. For avoidance of doubt, this Grant of Letter of Administration ad colligenda bona authorizes only the payment of the children’s school fees and general upkeep as set out under (a) and (b) above and no further or other sums of money may be withdrawn from the said Insurance benefits policy till a full grant of representation or further orders of the Court.
  9. The Applicant is directed to expedite the filing of formal application for a full grant and final determination of the Estate herein and any amounts to be issued to the Applicant herein shall be considered.

Orders accordingly.

DATED, SIGNED & DELIVERED VIRTUALLY AT MACHAKOS THIS   18TH   DAY OF NOVEMBER   2024

NOEL I. ADAGI

JUDGE

    In the Estate of LEPILALE BOBBY LEMALEN In the Estate of LEPILALE BOBBY LEMALEN