[2010] KEHC 3920 (KLR)
The court held that the application was fundamentally incompetent because Order XXIII Rule 2 of the Civil Procedure Rules is not applicable to succession matters unless specifically adopted by the Law of Succession Act, which was not the case here. Even if it were applicable, the relief sought—appointment as sole...
Source-derived case information.
- Citation
- [2010] KEHC 3920 (KLR)
- Parties
- Appellant: Cyrus Gakuru Gitari; Respondent: Magondu Gakuru; Respondent: Grace Watiri Magondu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 27 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Chamber Summons for Substitution and Administration
- Outcome
- application dismissed with costs to Grace Watiri Magondu
- Judges
- J Karanja
- Legal Topics
- Substitution of Parties, Administration of Estates, Applicability of Civil Procedure Rules, Law of Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cyrus Gakuru Gitari
Appellant
Magondu Gakuru
Respondent
Grace Watiri Magondu
Respondent
Procedural Posture
Civil Appeal / Ruling on Chamber Summons for Substitution and Administration
Legal Issues
- 1 Whether Order XXIII Rule 2 of the Civil Procedure Rules applies to succession matters under the Law of Succession Act.
- 2 Whether the applicant can be declared sole administrator of the deceased's estate through a civil procedure application.
- 3 Whether the affidavit in support of the application is proper.
Ratio Decidendi
The court held that the application was fundamentally incompetent because Order XXIII Rule 2 of the Civil Procedure Rules is not applicable to succession matters unless specifically adopted by the Law of Succession Act, which was not the case here. Even if it were applicable, the relief sought—appointment as sole administrator—cannot be granted under the Civil Procedure Rules, as the Law of Succession Act provides a distinct procedure for such appointments. Additionally, the affidavit in support was procedurally defective, being mischaracterized as a replying affidavit rather than a supporting affidavit. Most critically, the person sought to be substituted, Grace Watiri Magondu, was not...
Court Disposition
application dismissed with costs to Grace Watiri Magondu
Orders
- The Chamber Summons dated 31st August 2009 is dismissed as incompetent.
- Costs awarded to Grace Watiri Magondu.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 27 of 2006
CYRUS GAKURU GITARI………………………………………..APPELLANT
VERSUS
MAGONDU GAKURU…………………………………………..RESPONDENT
R U L I N G
I have considered the Chamber Summons dated 31st August 2009 filed by P.N. Mugo and Co. Advocates on behalf of the applicant one Cyrus Gakuru. The same is brought under Order XXIII Rule 2 of the Civil Procedure Rules. It is supported by what is described as a “Replying Affidavit”. The same is opposed by Grace Watiri Magondu who the appellant seeks to bring on board as the Respondent. Ms Wambugu for the said Grace Watiri submitted strongly that the said application is incurably defective and it should therefore be dismissed.
I must agree with her and I dismiss the same for the following reasons:-
1. Order 23 (XXIII) Rule 2 of the Civil Procedure Rules on which the application is premised is not of the orders adopted or imported by the Law of Succession Act from the Civil Procedure Act and Rules as provided for Rule 63 (1) of the P& A Rules.
2. That even if this court were to assume that the said order applies, the alternative prayer to declare the applicant the sole administrator of his late father’s estate would not be granted under the Civil Procedure Rules. The procedure of appointing administrators of deceased’s estate is clearly provided for under the Law of Succession Act.
3. The Affidavit in support of the application is defective in as far as it is a replying affidavit while it is actually a supporting affidavit.
4. Lastly but most important however is the fact that Grace Watiri who the applicant wants to be substituted is actually not named as a respondent in the application and no orders would therefore issue against her.
The application is therefore incompetent and the same is hereby dismissed for the above reasons with costs to Grace Watiri Magondu.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 17th day of Feb 2010
In presence of:- Both parties and Mr. Kariuki for P.N. Mugo for applicant.