Children of former Cabinet Minister William Ole Ntimama have won a legal battle against their brother-in-law over an investment fund worth Sh100 million being managed by Britam Insurance Limited.
The court said Dorcas is the owner of the joint account and not her son-in-law who was married to her daughter Vivian Talash Ntimama (also dead).
Dorcas co-owned the investment account with Vivian as joint subscribers. Signing and operations mandate of the account, which was opened in January 2018, was to either Dorcas or Vivian.
Court papers indicate that her estate took the position that Vivian was not just a signatory to the account but also a joint subscriber and owner.
Dorcas had also decided to invest part of the inheritance she got from Ole Ntimama, who died in September 2016, with Vivian.
The decision was allegedly informed by the intention of the late politician that whatever he had bequeathed to his wife would eventually pass over to Vivian, his last daughter. She, in relation to her siblings, stood in some special place.
According to his will dated June 24, 2015, other properties bequeathed to Dorcas and which were to revert to Vivian include two land parcels in Lavington Estate and another land in 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.
In the meantime, Dorcas was struggling with dementia and memory loss. Eventually some of her five children (Amos, Timothy, Sanau, Lydia and Sanaipei) were appointed her legal guardians and managers of her affairs.
Through lawyer Omwanza Ombati, the siblings opposed their brother-in-law and argued 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 by the rival claims, Britam Asset Managers (Kenya) Limited was in a dilemma. It decided to approach the court seeking help in determining whom between the estate of Vivian and Dorcas is entitled to the funds.
The dispute stemmed from the family’s disagreement on the operation and management of the funds and Britam was put at a dilemma as to whose instructions to follow.
Justice Tuiyott 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 Vivian and Dorcas had an agreement in this regard. In addition, Mama Dorcas having survived Vivian she remained the exclusive owner of the funds in the account.
“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 the joint 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 supposed to pass to Vivian, on funds the will does not demonstrate the funds bequeathed to Dorcas 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.
The court also 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,” said the judge.
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.
