[2017] KEHC 2219 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAPENGURIA

SUCCESSION CAUSE NUMBER 9 OF 2016

IN THE MATTER OF THE ESTATE OF PKUMUN KAMOLA :::::::::::::::(DECEASED)

AND

IN THE MATTER OF THE ESTATE OF WILSON MAGAL INYANG :::::(DECEASED)

CHEMAKWANY CHEKEPKER NGORIANGOLE ::::::::::::::::::::PETITIONER

VERSUS

WILLIAM PKEMOI KAMOLO ::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

RULING

This citation was brought up by the applicant on 13th September, 2016 urging the Respondent to accept or refuse letters of administration. The genesis of the issue is from Kitale High Court Succession Cause number 155 of 2011, in the Estate of Pkumun Kamola (deceased) and Kitale High Court Succession Cause number 156 of 2011, in the matter of the Estate of Wilson Magal Kinyang (deceased). Both causes were consolidated. On 9. 10. 2017 the petition for grant of letters of administration applied for by the respondent was cancelled and both the respondent and the applicant were to jointly apply for grant of letters of administration.

The applicant herein filed on application to review the ruling of 9. 10. 2016 to which the court ruled that the proper procedure would be to file a citation under section 21 and 22 of the Probate and Administration Rules. It’s out of this that the citation herein was filed before this court.

The respondent raised a preliminary objection to it on a point of law, in that:-

1. It is a non-starter

2. The citation can only be issued in the main succession cause number 155 of 2011 and 156 of 2011.

3. The application is an abuse of the court process.

4. The application contravenes rule 58, forms 1 and 32 of the Probate and Administration Rules Laws of Succession.

5. The application should be struck out.

The respondent submitted that Succession Cause number 155 and 156 of 2011 at Kitale High Court over the same subject matter and the same parites, are still pending for determination. Any pending issue for determination arising from the said causes should be filed within Succession Cause number 155 and 156 of 2011 at Kitale.

Rule 58(2) of the Probate and Administration Rule is to the point as it states:-

“2) When at the time of making an application relating to a will, or to the devolution of property on the intestacy of a deceased person there are pending or have previously been proceedings under the Act regarding that or any other will or property of such person, the application shall be made in and bear the cause number of those proceeding..”

It’s submitted by the Respondent that Rule 58(2) is coached in mandatory terms giving a party no other option.

The application for citation under Rules 21 to 24 of Probate and Administration rules, is made as per form 32 which provides that the heading of the citation is as in form 1, which provides for existing proceedings and non-existing proceedings.

The applicant opposes the preliminary objection on the grounds that Kitale High Court Probation and Administration number 155 of 2011of which was consolidated with number 156 of 2011, were determined by the ruling of 9. 10. 2017 where the court held that:-

“……..the applications made by the petitioner for grant of letters of administration respecting the estates of the late Pkumun Kamola and the late Wilson Magal Kinyang be and are hereby cancelled to allow fresh applications by the petitioners jointly.”

In determining the issue in this preliminary objection, I have considered that the filed citation arose out of proceedings in Kitale High Court Succession Cause Number 155 of 2011and156 of 2011, involving the same parties and the same issues. Logically, and this is why Rule 58(2) of the Probate and Administration Rules is in place, any issue arising from the said succession causes should be brought within the said files for ease of perusal and understanding by the presiding court. This would also avoid existence of multiple files, dealing with the same issues, in different courts. The succession causes number 155 and 156 of 2011 at Kitale High Courtare not finalized as the grant is not yet confirmed and the Estate distributed. It’s still open for any other issue arising therefrom to be raised within the causes. This would apply for even an application for directions to address any problem arising therefrom.

I therefore find the preliminary objection merited. It’s granted. The citation number 9 of 2016 is struck out with costs to the respondents.

Ruling is read and delivered in the presence of Mr. Lowasikou holding brief for Mr. Nyamu for the applicant and Mr. Barongo for the respondent this 2nd day of November, 2017.

S. M. GITHINJI

JUDGE

2. 11. 2017