[2020] KEHC 4620 (KLR)
The court declined to determine the mode of distribution of the estate due to procedural irregularities and lack of compliance with statutory requirements. The court found that it did not have the proper probate and administration file before it, as previously ordered by Sergon J., and that essential documents such...
Source-derived case information.
- Citation
- [2020] KEHC 4620 (KLR)
- Parties
- Plaintiff: 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 and Adjournment
- Outcome
- adjourned for regularization of proceedings
- Judges
- GMA Dulu
- Legal Topics
- Probate and Administration, Jurisdiction of Magistrate Courts, Distribution of Estate, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles K. Mutai
Plaintiff
Julius K. Mutai
Defendant
Christopher K. Mutai
Defendant
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Regularization and Adjournment
Legal Issues
- 1 Whether the Senior Principal Magistrate had jurisdiction to issue letters of administration for an estate valued over Kshs.10,000,000.
- 2 Whether the proper probate and administration file is before the court for determination of distribution.
- 3 Whether the necessary documentation and consents for distribution of the estate have been filed.
Ratio Decidendi
The court declined to determine the mode of distribution of the estate due to procedural irregularities and lack of compliance with statutory requirements. The court found that it did not have the proper probate and administration file before it, as previously ordered by Sergon J., and that essential documents such as land registry searches and beneficiary consents had not been filed. The court emphasized that substantive orders in succession matters cannot be made without the correct file and full compliance with the law. Accordingly, the matter was adjourned to allow parties to regularize the proceedings and file all necessary documentation before the issue of distribution could be...
Court Disposition
adjourned for regularization of proceedings
Orders
- The matter is adjourned to allow parties and their advocates to regularize the concerns identified regarding the proper file, documentation, and consents.
- No substantive orders on distribution will be made until a proper Probate and Administration court file is before the court and all statutory requirements are met.
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............................................................................PLAINTIFF
VERSUS
JULIUS K. MUTAI.....................................................................1ST DEFENDANT
CHRISTOPHER K. MUTAI......................................................2ND DEFENDANT
RULING
1. This matter is in a title 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, while actually it is 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. 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 Kshs.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, which shows that the cause was in the High Court of Kenya at Bomet as Succession Cause No.77 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 the estate.
4. I note that after 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 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 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 if we are dealing with the right file and the right documents. I am not able at this stage therefore 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. 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 in the land office to confirm the time of mutation, and who the owner of that 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.
George Dulu
JUDGE