[2016] KEHC 482 (KLR)
The court found that its earlier order did not properly implement its own findings in favour of the protestor regarding the distribution of the deceased's estate. Recognizing this error, the court exercised its power under Order 45 of the Civil Procedure Rules to review and set aside the previous order that removed...
Source-derived case information.
- Citation
- [2016] KEHC 482 (KLR)
- Parties
- Petitioner: Benson Gicovi; Protestor: Rosemary Wanjira Muriuki
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 340 of 2013
- Procedural Posture
- Succession Application / Ruling on Oral Application for Review of Distribution Order
- Outcome
- Application for review allowed; petitioner restored as administrator; estate to be distributed per protestor's mode; no need to restart confirmation proceedings.
- Legal Topics
- Succession, Estate Administration, Distribution of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Gicovi
Petitioner
Rosemary Wanjira Muriuki
Protestor
Procedural Posture
Succession Application / Ruling on Oral Application for Review of Distribution Order
Legal Issues
- 1 Whether the court should review its earlier order regarding the mode of distribution of the deceased's estate.
- 2 Whether the petitioner should be restored as administrator of the estate.
- 3 Whether the protestor's proposed mode of distribution should be adopted.
Ratio Decidendi
The court found that its earlier order did not properly implement its own findings in favour of the protestor regarding the distribution of the deceased's estate. Recognizing this error, the court exercised its power under Order 45 of the Civil Procedure Rules to review and set aside the previous order that removed the petitioner as administrator and required the parties to restart confirmation proceedings. The court restored the petitioner to the position of administrator and directed that the estate be distributed according to the protestor's proposed mode of distribution, thereby giving effect to the court's original findings and avoiding unnecessary delay or duplication of proceedings.
Court Disposition
Application for review allowed; petitioner restored as administrator; estate to be distributed per protestor's mode; no need to restart confirmation proceedings.
Orders
- The earlier order removing the petitioner as administrator is set aside.
- The petitioner is restored as administrator of the estate.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION NO. 340 OF 2013
FORMERLY RUNYENJES 185 OF 2011
IN THE MATTER OF THE ESTATE OF NGONDI M'MIRU (DECEASED)
BENSON GICOVI..........................................................PETITIONER
VERSUS
ROSEMARY WANJIRA MURIUKI..............................PROTESTOR
RULING
1. This is an oral application by the protestor that her mode of distribution of the suit property land parcel No. Gaturi/Nembure/1805 be effected as shown in paragraph 7 of this court's ruling dated 15th February 2016. I have treated her application as one that is based on Order 45 of the 2010 Civil Procedure Rules, which governs review of court orders on account of error, mistake, discovery of new evidence or for sufficient cause.
2. In this court's ruling of 15th February 2016 in paragraph 26 I ruled as follows: “In the circumstances, I find that the protestor effectively withdrew her consent in respect of the mode of distribution. It therefore follows that her application is hereby allowed. The result is that the appointment of the petitioner as the administrator of the estate and his mode of distribution is also set aside. The parties are at liberty to restart the confirmation proceedings.”
3. It is clear that I should have adopted her mode of distribution since I had found in her favour in terms of her protest in that ruling.
4. In the circumstances, I hereby set aside my earlier order removing the petitioner as the administrator of the estate and I hereby restore him to that position. Furthermore, I also direct that the suit property be distributed in terms of her mode of distribution. It therefore follows that the parties will not be required to restart the confirmation proceedings. In passing, I note that the parties have been unable to agree to date as to the mode of distribution following this court's ruling of 15th February 2016.
RULING DATED, SIGNED and DELIVERED in open court at EMBU this 8th day of DECEMBER, 2016
In the presence of both the petitioner and the protestor.
Court clerk Njue
J.M. BWONWONGA
JUDGE
08. 12. 16