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Court rejects man’s bid to administer late ex-wife’s Sh60m estate

 

The Family Court in Mombasa has declined to issue a man with administration documents for a woman’s property after it emerged that he had divorced her two years before her demise. 

The ruling by Justice John Onyiego has frustrated Mr Kenneth Njau’s efforts to secure property worth over Sh60 million that he alleged was about to be sold. 

The property belonged to his former wife Sandra Gathoni, who died in 2021. 

Mr Njau filed the case last year seeking limited grant of letters of administration for the purpose of preserving and collecting the woman’s estate. 

He also wanted the court to restrain Muriu Munga & Co. Advocates and Nyiha Mukoma & Co. Advocates from selling the property without his knowledge or consent. 

He argued that the woman was his wife and that before her death, he was entitled to a share of her father’s estate. 

Mr Njau told the court that after the woman’s father James Kanyotu died, some properties were distributed to his beneficiaries, including his former wife. 

“One of the properties the deceased was entitled to was LR 16615 Red Hill. The said property has since been valued and offered for sale at Sh60 million,” he lamented.

He also said the woman’s children aged below 18 ought to have been involved in the process. 

“I am acting on the interest of the children who are beneficiaries of the late Kanyotu’s estate being grandchildren through the estate of their late mother,” he said. 

The law firms asked the court to strike out the application, arguing that it was incompetent because Mr Njau has no capacity to bring the proceedings on behalf of the woman’s estate. 

The court heard that Mr Njau had divorced the woman in 2018 and thus did not have any authority to sue on her estate. 

The law firms also told the court that a succession case had been filed in the Malindi High Court by the late woman’s mother, who wants the authority to administer the estate. 

They said that any case challenging the sale of the property should be filed in James Kanyotu’s succession cause No 1239/2008 in Nairobi. 

But Mr Njau insisted that he had the authority to file the case because he was the late woman’s husband and a representative of her young children. 

He also said he had challenged the grant in the Malindi court by seeking its revocation. 

“The property is likely to be wasted unless protected,” he said through his advocate Mbugua Njenga. 

But the law firms maintained that an ex-husband cannot petition for a grant of letters of administration for the estate of a deceased former spouse. 

“The property in question has never been owned by the deceased hence the right place to be is in James Kanyotu’s estate succession proceedings as the owner of the property,” Nyiha Mukoma and Co. Advocate said. 

To determine whether Mr Njau is entitled to petition for a grant of letters of administration, the court relied on Section 66 of the Law of Succession Act that outlines who is entitled to such documents. 

Under the Act, the people entitled to such documents are surviving spouse or spouses, with or without association of other beneficiaries, other beneficiaries entitled on intestacy with priority according to their respective beneficial interests, public trustee and creditors. 

“Obviously, a former husband is not among the listed categories to petition for a grant,” the judge said. 

He added: “One would ask where Mr Njau derived authority from to be able to sue. He had no capacity in law to institute any proceedings against anybody before obtaining a grant of letters of administration ad litem for purposes of suing.”

The judge struck out the suit, ruling that it was incompetent and bad in law because Mr Njau filed it before obtaining a temporary grant.   BY DAILY NATION    

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