Children of the late Cabinet minister William Ole Ntimama have won a dispute involving an investment fund worth Sh100 million managed by Britam .
The court ruled that their mother Dorcas Pedelai Ntimama, who died in June this year, is the sole owner of the funds.
Dorcas held the investment account with her late daughter Vivian Talash Ntimama, the court found.
Vivian’s husband, Erick Kimani had claimed stake in the fund as the administrator of her estate after she passed on in January 2020 at the age of 42.
Vivian and her mother had the signing and operations mandate of the account set up in January 2018.
Court papers indicate that Vivian’s estate took the position that she was not just a signatory to the account but also a joint subscriber and owner.
Dorcas invested part of her inheritance from Ole Ntimama, who died in September 2016, with Vivian, a decision allegedly informed by her husband’s will.
According to the late politician’s Will dated June 24, 2015, properties bequeathed to Dorcas were to be inherited by his last-born daughter Vivian including land in Lavington Estate and CIS Mara/Olopito.
In consideration, Ole Ntimama had instructed Vivian to make provision for the upkeep, comfort and maintenance of his wife Mama Dorcas and to generally take care of her in the course of her life.
Dilemma
Some of the other Ole Ntimama children – Amos, Timothy, Sanau, Lydia and Sanaipei – were appointed as the mother’s legal guardians and managers of her affairs after she was diagnosed with dementia and memory loss.
Through lawyer Omwanza Ombati, the siblings opposed their brother-in-law’s claim to the account, arguing that their sister Vivian was not a joint investor or owner of the funds held by Britam but was “merely a signatory for the purposes of assisting their mother Dorcas”.
Faced with two rival claims, Britam Asset Managers, a unit of Britam Group, was caught in a dilemma. It decided to approach the court seeking help in determining whom between the estate of Vivian and that of Dorcas is entitled to the funds.
The dispute stemmed from the family’s disagreement on the operation and management of the funds with Britam caught in the middle on whose instructions to follow.
In the ruling rendered on Friday by Justice Alfred Mabeya on behalf of Justice Francis Tuiyott, the High Court in Nairobi, the judge noted that the joint account opening form (filled by Vivian and Dorcas) was silent on how their respective interests were to be treated in the event of death.
Further, there was no evidence that the mother and daughter had an agreement in this regard.
“The court, therefore, takes it that, without more, the place to start is that Mama Dorcas is the sole owner of the monies in the bank account. This is because Vivian predeceased Mama Dorcas,” said the judge.
He stated that the law presumes that, unless expressly stated to the contrary, full ownership of a joint bank account passes to the surviving joint owner upon the death of a co-owner.
The estate of Vivian had urged the court to find that there was a presumption of advancement of the funds in the said account to Vivian.
However, the court stated that although Ole Ntimama’s Will indicate everything he had bequeathed his wife Dorcas was to pass on to Vivian, on the funds the Will does not demonstrate the monies were to revert to Vivian.
“Evidence that emerged is that although Mama Dorcas invited Vivian as a co-signatory and second subscriber to the account, the funds in the account belonged solely to Mama Dorcas,” said Justice Tuiyott.
Order on costs
The court slapped the estate of Vivian with costs incurred by Britam in the legal dispute because it had insisted on getting what does not belong to it.
“Had the party who is not the owner of the funds not insisted on them, then Britam would not have been put in difficulty. It is that party that caused Britam to incur expenses and costs. It is that party that must meet Britam’s costs of these proceedings,” the judge ruled.
Children of the late politician and the estate of Vivian will bear their own costs.
While making the order on costs, the judge noted that the parties are “members of one family and as demonstrated by the dispute, there is already a wedge between them”. An order of costs may not help in healing the differences, said the judge.
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