[2008] KEHC 1515 (KLR)
The court found that sections 63 and 64 of the Law of Succession Act were not applicable to the present application, which was properly brought under section 67(1) and Rule 36(1)(2) of the Probate and Administration Rules. The practice of filing a miscellaneous application is strictly followed where the main suit is...
Source-derived case information.
- Citation
- [2008] KEHC 1515 (KLR)
- Parties
- Applicant: Agustino Muthuri M'Ibuuri; Respondent: Agustino Muthuri M'Ibuuri
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Bankruptcy Cause 93 of 1999
- Procedural Posture
- Succession Cause / Ruling on Application for Limited Grant and Substitution of Petitioner
- Outcome
- application allowed
- Judges
- SP Ouko
- Legal Topics
- Succession Procedure, Limited Grant, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agustino Muthuri M'Ibuuri
Applicant
Agustino Muthuri M'Ibuuri
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Limited Grant and Substitution of Petitioner
Legal Issues
- 1 Whether the applicant can be granted a limited grant to be substituted in place of the deceased petitioner in the succession cause.
- 2 Whether the application for limited grant should have been filed in the main cause or as a miscellaneous application.
Ratio Decidendi
The court found that sections 63 and 64 of the Law of Succession Act were not applicable to the present application, which was properly brought under section 67(1) and Rule 36(1)(2) of the Probate and Administration Rules. The practice of filing a miscellaneous application is strictly followed where the main suit is not a succession cause, but in this case, since the main cause is a succession cause, the application was properly before the court. Exercising its discretion under Rule 73, the court allowed the application, finding that no prejudice would be caused to the objector by granting a limited grant for the applicant to be substituted in place of the deceased petitioner.
Court Disposition
application allowed
Orders
- A grant limited to the applicant being substituted in place of the deceased petitioner in this cause is granted.
- Costs in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Succession Cause 93 of 1999
AGUSTINO MUTHURI M’IBUURI …....................………………… APPLICANT
VERSUS
AGUSTINO MUTHURI M’IBUURI …………………………….. RESPONDENT
RULING
On 16th November 2007 this court dismissed an application by the applicant in which he sought to be substituted in this cause in place of the petitioner who is now deceased. The application failed on one ground, namely that the applicant had not been appointed a legal/personal representative of the deceased.
Taking the que from this ruling the applicant has now applied in this cause for a limited grant in a petition filed on 22nd February 2008. The application was opposed and since counsel for the objector did not file a replying affidavit or grounds of opposition she stated from the bar that it was irregular to file this application in the main cause. That it ought to have been filed in a miscellaneous file and brought pursuant to sections 63 and 64 of the Law of Succession Act.
I have considered these arguments and wish to observe right away that sections 63 and 64 of the Law of Succession Act have no application in the present application. The application is expressed to be brought under section 67(1) of the Law of Succession Act and Rule 36(1) (2) (I suppose) of the Probate and Administration Rules which allow for the grant of letters of administration limited for specific purpose.
The practice has been to file a miscellaneous application separate from the main cause or suit. That practice will strictly be followed where the main suit is not a succession cause.
In the exercise of my discretion under Rule 73 of the Probate and Administration Rules, I will allow the application as there will be no prejudice to the objector. A grant limited to the applicant being substituted in place of the deceased petitioner in this cause is granted. Costs in the cause.
Dated and delivered at Meru this 3rd day of October 2008.
W. OUKO
JUDGE