[2010] KEHC 2311 (KLR)
The court found that the applicant, as the son of the deceased objector, is entitled to be substituted in place of his late father to pursue the objection proceedings. The respondent's opposition was found to be vague and unsupported by specific prejudice. The court exercised its discretion under Rule 73 of the...
Source-derived case information.
- Citation
- [2010] KEHC 2311 (KLR)
- Parties
- Respondent: Beatrice Chebendi Henry; Objector: Nelson Mikisi Maruti; Applicant: Ndiwa Nelson Maruti
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 123 of 1997
- Procedural Posture
- Succession Cause / Ruling on Substitution Application
- Outcome
- Application for substitution allowed.
- Legal Topics
- Substitution of Parties, Locus Standi, Probate and Administration, Objection Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Chebendi Henry
Respondent
Nelson Mikisi Maruti
Objector
Ndiwa Nelson Maruti
Applicant
Procedural Posture
Succession Cause / Ruling on Substitution Application
Legal Issues
- 1 Whether Ndiwa Nelson Maruti should be substituted as objector in place of the deceased Nelson Mikisi Maruti.
- 2 Whether the applicant has locus standi to pursue the objection proceedings.
Ratio Decidendi
The court found that the applicant, as the son of the deceased objector, is entitled to be substituted in place of his late father to pursue the objection proceedings. The respondent's opposition was found to be vague and unsupported by specific prejudice. The court exercised its discretion under Rule 73 of the Probate and Administration Rules to allow the substitution, holding that such an order was necessary for the ends of justice and to ensure the matter is determined on its merits.
Court Disposition
Application for substitution allowed.
Orders
- Ndiwa Nelson Maruti is substituted as objector in place of Nelson Mikisi Maruti (deceased).
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KAKAMEGA
SUCCESSION CAUSE 123 OF 1997
IN THE MATTER OF THE ESTATE OF MARUTI TARAKWA – DECEASED
BETWEEN
BEATRICE CHEBENDI HENRY ------------PETITIONER/RESPONDENT
VERSUS
NELSON MIKISI MARUTI ------------------------- OBJECTOR/DECEASED
AND Be
NDIWA NELSON MARUTI ----------------------------------------- APPLICANT
RULING
1. The Application dated 27. 10. 2006 seeks orders that Ndiwa Nelson Maruti be made a party to these proceedings in place of Nelson Mikisi who has since died.
2. It is the Applicant’s case that he is the son of the deceased Objector and that he is best placed to pursue his father’s claim in the Succession matter relating to the estate of one Maruti Tarakwa (deceased).That because the Objection Proceedings were commenced on 28. 9.1999 and his father died on 5. 3.2004, it would help expedite the conclusion of the dispute if the Application for substitution is allowed.
3. The Petitioner/Respondent Beatrice Chebendi Henry filedno response but her advocate, one Morris Indakwa Buluma filed a Replying Affidavit sworn on 2. 6.2009 and depones that the Applicantlacks locus standi to present the Application and that the Respondent will be greatly prejudiced if the orders sought are granted.
4. I will quickly dispose of the Application by stating that Mr. Buluma’s response is sadly vague and unclear and the alleged prejudice to his client is unexplained.In any event, how would he know what prejudice his client would suffer without stating so?
5. My view is that with the death of the Objector, his son can quickly fill up his shoes for purposes of pursuing the Objection proceedings.Under Rule 73 of the Probate and Administration rules this court has power to “make such orders as may be necessary for the ends of justice” to be met and this case is fit for those orders to be made.
6. In the event, I will allow Prayer 1 of the Application dated 26. 10. 2006 and Ndiwa Nelson Maruti shall become the Objector in place of Nelson Mikisi Maruti (deceased)
7. Costs shall be in the cause.
8. Orders accordingly.
Delivered, Dated and Signed at Kakamega this 15th day of April, 2010.
ISAAC LENAOLA
J U D G E