[2004] KEHC 1459 (KLR)
The court found that Order XXIII rule 3(2) of the Civil Procedure Code does not apply to succession proceedings, which are governed by the Succession Act. The applicant, having sought orders against the respondent as personal administrator and not having sought revocation of the grant, had her application considered...
Source-derived case information.
- Citation
- [2004] KEHC 1459 (KLR)
- Parties
- Applicant: Alvina Kaari Naiboro; Respondent: Joseph Murungi Michira
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 28 of 1998
- Procedural Posture
- Succession Cause / Ruling on Chamber Summons
- Outcome
- Application allowed; orders granted as prayed with costs.
- Legal Topics
- Succession Proceedings, Grant of Representation, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alvina Kaari Naiboro
Applicant
Joseph Murungi Michira
Respondent
Procedural Posture
Succession Cause / Ruling on Chamber Summons
Legal Issues
- 1 Whether Order XXIII rule 3(2) of the Civil Procedure Code applies to succession proceedings under the Succession Act.
- 2 Whether the application by the applicant can be granted in light of her death and absence of opposition.
Ratio Decidendi
The court found that Order XXIII rule 3(2) of the Civil Procedure Code does not apply to succession proceedings, which are governed by the Succession Act. The applicant, having sought orders against the respondent as personal administrator and not having sought revocation of the grant, had her application considered on its merits. The court accepted the evidence that the applicant was deceased and, in the absence of any opposition to the application, allowed the application and granted the orders prayed for in the chamber summons dated 4/12/2003, with costs.
Court Disposition
Application allowed; orders granted as prayed with costs.
Orders
- Application allowed as prayed in chamber summons dated 4/12/2003.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
SUCCESSION CAUSE NO. 28 OF 1998
IN THE MATTER OF: THE ESTATE OF
PAUL KIBURI MURUNGI –DECEASEDALVINA KAARI NAIBORO………………………………PETITIONER=V E R S U S=JOSEPH MURUNGI MICHIRA…………………….RESPONDENTR U L I N G
Order XXIII rule 3(2) Civil Procedure Code applies to suits and appeals. In the present case the proceedings come under Succession Act, Cap.160.
A Grant of representation has already been issued to the Respondent.
By Originating Summons dated 25/5/1999 the Applicant Alvina Kaari Naiboro applied for orders against the Respondent (personal Administrator). She did not seek to revoke the Grant in this suit.
It is now said that the Applicant is now deceased. I have no reason to doubt the evidence laid before the court to this effect. There is no opposition to this application. In the circumstances, I allow application and grant orders prayed for with costs in respect of Chamber summons dated 4/12/2003.
Dated at Mombasa this 13th day of February, 2004.
JOYCE KHAMINWA
J U D G E
Delivered in the presence of Mr. Kenzi.
JOYCE KHAMINWA
J U D G E
Mr. Kenzi: I apply for a copy of the ruling certified.
Court: Order granted. Ruling to be given upon payment of copying charges.
JOYCE KHAMINWA
J U D G E