[2020] KEHC 4430 (KLR)
The court found that it could not proceed to determine the mode of distribution of the estate due to procedural irregularities and lack of compliance with statutory requirements. Specifically, the original probate and administration file had not been availed as ordered by a previous judge, and the court could not...
Source-derived case information.
- Citation
- [2020] KEHC 4430 (KLR)
- Parties
- Applicant: Charles K. Mutai; Defendant: Julius K. Mutai; Defendant: Christopher K. Mutai
- Court
- High Court
- Court Station
- High Court at Bomet
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 27 of 2018
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Regularization Before Distribution
- Outcome
- adjourned for regularization; no determination on distribution made
- Judges
- GMA Dulu
- Legal Topics
- Succession Procedure, Jurisdiction of Magistrate, Probate and Administration Files, Distribution of Estate, Consent of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles K. Mutai
Applicant
Julius K. Mutai
Defendant
Christopher K. Mutai
Defendant
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Regularization Before Distribution
Legal Issues
- 1 Whether the Senior Principal Magistrate had jurisdiction to issue letters of administration in an estate valued over Ksh.10,000,000.
- 2 Whether the proper probate and administration file is before the court for determination of distribution.
- 3 Whether all necessary documents and consents have been filed to enable distribution of the estate.
Ratio Decidendi
The court found that it could not proceed to determine the mode of distribution of the estate due to procedural irregularities and lack of compliance with statutory requirements. Specifically, the original probate and administration file had not been availed as ordered by a previous judge, and the court could not make substantive orders in the absence of the correct file. Additionally, the documentation regarding the estate's land assets was incomplete, and there was no evidence that all beneficiaries had been listed or had consented to the proposed distribution. The court emphasized that compliance with the law and proper procedure is mandatory in succession matters, and substantive...
Court Disposition
adjourned for regularization; no determination on distribution made
Orders
- Parties and their advocates are to regularize the concerns identified before the issue of distribution of the assets can be addressed.
- The matter is adjourned until proper compliance and filing is achieved.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BOMET
MISCELLANEOUS CIVIL APPLICATION NO. 27 OF 2018
CHARLES K. MUTAI.................................................APPLICANT
VERSUS
JULIUS K. MUTAI.............................................1ST DEFENDANT
CHRISTOPHER K. MUTAI.............................2ND DEFENDANT
RULING
1. This matter described as Bomet Civil Misc. Application No. 27 of 2018 between Charles K. Mutai as plaintiff and Julius Mutai and Christopher K. Mutai as defendants, is actually a succession cause initially filed in Kericho High Court as Kericho High Court Miscellaneous P&A Application No. 02 of 2014, before the file was sent to Bomet High Court.
2. That said, this miscellaneous application was filed on the ground that the Senior Principal Magistrate, Bomet had no jurisdiction to determine the succession matter therein in the estate of Edwin Kimutai Tegerey and issue letters of administration in an estate of the value of more than Ksh.10,000,000/=.
3. I have so far not been availed the original file in which the Magistrate issued the said Letters of Administration, but a copy of the Certificate of Confirmation of Grant of Letters of Administration in the estate of Edwin Kimutai Tegerey was filed. That certificate shows that the cause was in the High Court of Kenya at Bomet as Succession Cause No. 7 of 2010 in which on 2nd November 2011, Hon. T. Okello, Senior Principal Magistrate signed the Certificate of Confirmed Grant, which included the mode of distribution of assets of estate.
4. I note also that on 9th July 2014 Sergon J. ordered as follows-
(i) The grant issued in Bomet Succession Cause No. 77 of 2010 be cancelled and the file be transferred to this court for hearing and determination.
(ii) A restriction be registered against L.R. Nos. Kericho/Kipsonoi/644/665 and 666 pending the hearing and determination of the cause.
5. It is not clear to me if the above orders were complied with and nobody has informed me what happened after the issuance of the above orders.
6. Thereafter, on 5th November 2019, the matter came before me at Bomet and Mr. Kipngetich held brief for Mr. Orina for the applicant/objector, while Mr. Koech appeared for the petitioner/respondent. Mr. Koech informed the court that they had prepared their proposed mode of distribution but had not filed the same. Mr. Kipngetich on his part informed the court that this matter had come to court severally for mention but Mr. Koech had merely been asking for more time to file his proposed mode of distribution.
7. From the above observations, it is clear to me that this matter has a substantial amount of confusion, and it is in doubt if the law has been followed. It is also not clear to me if we are dealing with the right file and the right documents. I am thus not able at this stage to determine the mode of distribution for three (3) reasons. First, I have not been availed the file in Bomet Succession Cause No. 77 of 2010, which Sergon J ordered it be availed to this court. This court cannot make substantive orders in a succession matter through files which are not probate and administration files as I have been requested herein. Secondly, what has been filed herein on the land asset of the estate is merely a copy of a mutation form for only the one land parcel, but there is no search done in the land office to confirm the time of mutation, and who the owner of the land is. At the same time, there are several other plots (parcels of land) in the alleged will of the deceased whose copies of Land Registry documents to establish ownership have not been filed. Thirdly, the beneficiaries have not been listed nor have they signed a consent to the proposed mode of distribution of assets as required by law.
8. I will thus adjourn this matter and order that parties and their advocates regularize the above concerns before the issue of distribution of the assets in this estate can be addressed by this court, through a proper Probate and Administration court file.
Dated and delivered at Bomet this 3rd day of March 2020.
G. DULU
JUDGE
3/3/2020