[2008] KEHC 103 (KLR)
The court determined that the application for a limited grant for substitution was properly brought under section 67(1) of the Law of Succession Act and Rule 36 of the Probate and Administration Rules, which expressly provide for such grants for specific purposes. The court rejected the respondent's procedural...
Source-derived case information.
- Citation
- [2008] KEHC 103 (KLR)
- Parties
- Applicant: Agustino Muthuri M'Ibuuri; Respondent: Peter Kirimi M'Ibuuri
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 93 of 1999
- Procedural Posture
- Succession Cause / Ruling on Application for Limited Grant and Substitution
- Outcome
- application allowed
- Judges
- SP Ouko
- Legal Topics
- Succession Proceedings, Limited Grant of Letters, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Agustino Muthuri M'Ibuuri
Applicant
Peter Kirimi M'Ibuuri
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Limited Grant and Substitution
Legal Issues
- 1 Whether the applicant is entitled to a limited grant for the purpose of substitution in place of the deceased petitioner.
- 2 Whether the application for limited grant can be properly filed within the main succession cause rather than as a miscellaneous application.
Ratio Decidendi
The court determined that the application for a limited grant for substitution was properly brought under section 67(1) of the Law of Succession Act and Rule 36 of the Probate and Administration Rules, which expressly provide for such grants for specific purposes. The court rejected the respondent's procedural objection, finding that sections 63 and 64 of the Act were inapplicable to the present application. The court further held that, while the practice is to file miscellaneous applications separately, this is not mandatory where the main suit is a succession cause. Exercising its discretion under Rule 73, the court found that granting the application would not prejudice the objector...
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
PETER KIRIMI 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