[2025] KEHC 8540 (KLR)

[2025] KEHC 8540 (KLR)

The court found that the plaintiffs' suit and application sought to exclude the surviving spouse from administration of the deceased's estate, contrary to section 66 of the Law of Succession Act, which gives priority to the spouse. Furthermore, the court held that the issues raised were not constitutional in nature but were matters to be determined by the Family Court in a Succession Cause. The doctrine of constitutional avoidance applied, as the dispute could be adequately addressed under the Law of Succession Act rather than through a constitutional petition. Consequently, the preliminary objection was upheld, and the suit and application were struck out for being improperly before the...

Citation
[2025] KEHC 8540 (KLR)
Parties
Plaintiff: Japheth Manyala Adew; Plaintiff: Everline Awuor Manyala; Plaintiff: Violet Achieng Manyala; Plaintiff: Imelda Auma Manyala; Defendant: Seline Adhiambo Anyango
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
13 June 2025
Case Number
Civil Case E006 of 2025
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Outcome
preliminary objection upheld; suit and application struck out with costs
Judges
A Mabeya
Legal Topics
Succession Priority, Letters of Administration, Constitutional Avoidance, Capacity to Sue
Source Language
English
Family and Children Civil Procedure Succession Priority Letters of Administration Constitutional Avoidance Capacity to Sue

Case Brief

Summary, issues, holding and outcome

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Parties

Japheth Manyala Adew

Plaintiff

Everline Awuor Manyala

Plaintiff

Violet Achieng Manyala

Plaintiff

Imelda Auma Manyala

Plaintiff

Seline Adhiambo Anyango

Defendant

Procedural Posture

Civil Case / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the plaintiffs' suit offends the provisions of section 66 of the Law of Succession Act regarding priority in administration of estates.
  2. 2 Whether the suit and application offend the doctrine of constitutional avoidance by raising issues that should be determined by the Family Court in a Succession Cause rather than as a constitutional petition.

Ratio Decidendi

The court found that the plaintiffs' suit and application sought to exclude the surviving spouse from administration of the deceased's estate, contrary to section 66 of the Law of Succession Act, which gives priority to the spouse. Furthermore, the court held that the issues raised were not constitutional in nature but were matters to be determined by the Family Court in a Succession Cause. The doctrine of constitutional avoidance applied, as the dispute could be adequately addressed under the Law of Succession Act rather than through a constitutional petition. Consequently, the preliminary objection was upheld, and the suit and application were struck out for being improperly before the...

Court Disposition

preliminary objection upheld; suit and application struck out with costs

Orders

  • The preliminary objection is allowed.
  • The suit and application are struck out.