Make succession friendlier to orphans, pleads Esther Kimotho

Esther Kariuko Kimotho walked out of a family court in Nairobi a happy young woman on December 3, 2019. After five years, her case had been finally determined. With the orders from it, the administration of some of the property left behind by her late parents had been handed to her.

Esther, drawing from her court battle and also reflecting on the plight of the children in Mombasa left behind by businessman Ronald Bundi and his wife earlier this year, is calling for a relook into the laws regarding the property left behind when a child loses both parents.

She believes the current legal framework relies too much on the goodwill of a child’s relatives, which often disadvantages the children, and that the procedure of reclaiming property is long and expensive.

“There should be a change of succession laws because I feel there are many people who give up because it (transfer of ownership) is a tedious process which also needs money. Let the process be made a bit flexible and less financially straining,” she told Parenting. “In my case, if I didn’t have someone to assist, I would still be in court.”

Esther was a total orphan by the time she was 10 years old. She was an only child. Her mother died in 2001; her father in 2002. The father left behind four plots, one of which had rental property. He also had a policy with Jubilee Insurance, money in a National Bank account, shares at Kenya Commercial Bank, among other possessions.

In 2004, Peter Ndungo and Judith Wamarwa, siblings of the late Alfred Gichobi Kimotho (Esther’s father), were permitted by a court to administer the estate, and a court registrar was also included in the arrangement for a supervisory role.

Through this arrangement, Esther’s aunt and uncle say they were able to withdraw money to pay her school fees and meet other expenses.

Esther lived with her aunt Judith in Naivasha until 2011 when she moved to Kirinyaga to live with a sister-in-law of her late father.

In April 2014, when she was 22, she filed an application asking the High Court to revoke the grant given to her uncle and aunt and declare her the administrator of the property.

Esther says she filed the case because she was being told there was no money for university.

“One of the reasons was the lack of school fees for university. When I needed school fees, I was told there was no money at all; that there was nothing left. I now had to start finding out what was left by my parents,” says Esther, who in 2016 graduated with a Bachelor of Arts degree in economics and political science from the University of Nairobi.

She admits that there weren’t many hiccups with payment of school fees in the earlier years.

“The issue with fees mostly came when I changed schools from Naivasha Girls to Moi Forces Academy, Lanet. But I didn’t have balances by the time I was completing (my secondary school studies). The issue came up after I had completed secondary school and I was told there was no other money left. I had to find a way of getting higher education,” says Esther.

Her uncle and aunt — who told this writer that they were doing everything in good faith despite some “misunderstandings” — did not oppose Esther’s application in court. However, the case was dogged by delays mostly occasioned by a missing file.

At some stage, the file was reconstructed after parties were asked to provide documents. According to communication seen by Parenting, an officer in charge of the strong room was also subjected to administrative action over the disappearance of files. 

Esther says that due to lack of resources, she used many channels to try to push the court case.

“I first started with Fida (the Federation of Women Lawyers) who took up the matter. But they could miss hearings and mentions because the file was at times missing,” she says. “They requested that I get a different lawyer.”

She managed to get a lawyer who prosecuted her case for free with an agreement that she would pay in the end.

Given those struggles, it was a sigh of relief when Esther’s application was allowed by Justice Aggrey Muchelule of the family division of the High Court in Nairobi’s Milimani.

“I allow the application and revoke the grant issued on February 27, 2004 to (Esther’s uncle and aunt) and confirmed on July 12, 2006. A fresh grant and a fresh certificate of confirmation shall be issued in the name of (Esther),” the judge said.

The judge also ordered that because it was revealed that some monies had been withdrawn, the court should be shown a “full and accurate” account of the way monies from the estate were spent. The court closed the case on April 5, 2022.

The conclusion of the case and the orders that came out of it brought some relief to Esther, who previously could not be shown finer details of her fathers’ accounts by banks, insurance companies, among other firms because she wasn’t the legally recognised administrator.

Esther says it should be automatic that once an orphan turns 18, administrative rights over parents’ property should shift to them. She also wants every parent to have his or her will ready.

“Wills prevent kids from going through all these hardships,” she said. “I also believe that a parent should show their children where their property or accounts are. Anything can happen and it’s good for the children to know what their mother or father possessed.”

There is also the issue of what happens if those granted administrator rights fail to tell the orphan about the property if they lose their parents when they are too young. Esther claims that it was another aunt who informed her that her parents’ property was being administered by the two relatives.

“Some cases depend on the openness of the administrators and if they follow the mandate of the grant, because the grant says that as long as the child is of age, then the process of making a transfer should be followed. I feel like the process shouldn’t be delayed. If the child reaches 18, transfer to them so they take charge of the administration,” said Esther.

Contacted, the uncle spoke of a complicated relationship with Esther that sometimes hindered their communication, stopping short of calling Esther entitled.

According to Senior Counsel Judy Thongori, a family lawyer of over 35 years, there are enough laws to guide on the property that orphans are entitled to.

“Our laws are strong enough but our vices overwhelm them. The law is very clear in protecting the right of children to inherit and even provides for the creation of trusts in the case of children below 18 years of age,” she said.

“Indeed, where there are minor children, and in a bid to protect them, the Court does not allow letters of administration (authority to manage the property of a deceased person) to be issued to a single person,” added Ms Thongori.

Fights over property are often interlinked with fights over who should take care of an orphan. In Ms Thongori’s view, parents should mention in their wills that in case they die, a specific person should take care of their children.

We asked the lawyer if there is a law that dictates which relative takes care of an orphan, and her response was that the “best interest” principle is what applies.

“Simply put, in all matters concerning children the paramount consideration is their best interest,” she said. “Where parents appoint a guardian through their Will or by Deed, the court will uphold such an appointment unless it is against the child’s best interest.”

The lawyer went on: “Where no guardian is appointed by the parents, it is common for relatives to automatically take charge of children when their parents die. Many relatives never formalise the arrangement but they nonetheless take care of the children to adulthood.”

She explained that if you take up the parenting duties of an orphan, you can legally adopt them or apply for recognition as the legal custodians or guardians.

“(Adoption, custody or guardianship) all require that a case is filed in court which determines whether it is in the child’s best interests for the order to be given. It is good practice for relatives who have taken over the care of orphaned children to legalise the same as it not only contributes to the children’s security and identity as well as the overall well-being. Furthermore, in the event of the relative dying, the child will become entitled to inherit their property,” explained the lawyer.

And in case you notice orphans being mistreated, the lawyer reasons that you can sue on their behalf.

“Under the Children Act, a Good Samaritan may approach the court for redress on behalf of a child whose rights have been or are likely to be violated,” said the lawyer.

Cases of orphans suffering despite riches left behind by their parents are rampant, and Ms Thongori called on Kenyans to have a change of heart.

“A society’s worth can be best measured not by its riches and might but on how it treats its vulnerable children,” she advised.    BY DAILY NATION