[2004] KEHC 513 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU MISC APPL. 43 OF 2004

EDITH KANYIVA DANIEL …………………. PETITIONER

VERSUS

HENRY MWANIKI NJIRU ……………………..DECEASED

RULING ON A PRELIMINARY OBJECTION

1. Mr. Njage, learned Counsel for the Respondent has raised a Preliminary Objection to the hearing of the Application dated 3. 8.2004. That Application seeks orders that the grant issued in this cause and confirmed on 4. 9.1999 be revoked under Section 76 of the Law of Succession Act.

2. The Objection is premised on two substantive grounds; i) That the Applicant has no locus standi to seek revocation of the grant as she is a stranger to the estate of the deceased. She is a stranger because, it is argued, she has no consanguinital relationship with the deceased and in any event she does not qualify as an administrator under Section 66 of the Act. ii) That the Applicant has not taken out letters of administration to the estate of her husband (since deceased) who as a son of the deceased in this cause was entitled to apply to be enjoined as an administrator and as a beneficiary to his late father’s estate, Further, her claim to be the wife of the deceased’s son is not borne out by any document of marriage exhibited in the Application or elsewhere. Her claim I was told must as a consequence fail.

3. The Applicant in her Application says that she was the wife of Muriuki Njiru, deceased son of the deceased in this matter, Samuel Njiru Nguo. That her husband had died before his share of the estate of his late father could be transferred to him and now as the survivor and spouse of her late husband she has a right to claim through him to his share of his father’s estate. She concedes at paragraph 5 of her supporting Affidavit that in distributing the estate, the Petitioner left“only a small portion out of the ……..land and of which portion. To make the matter (sic) they gave themselves as trustees for my children without involving” her, she reiterated these sentiments in reply to the objection but added that she lost her marriage certificate and could not procure another one in time and pleaded with this court to give her a replacement!

4. Often times in matters of this nature, a court sees the difficulty that parties appearing for themselves face in the attempt to respond to matters of law raised by seasoned practitioners of law. There being little space for sympathy or compassion however, the law must be applied to all including those weak in the understanding of that law.

5. I have looked at the Preliminary Objection and sadly for the hapless Applicant, it must succeed. If she is to have a claim through her late husband’s interest to his father’s estate, she must first regularise her own position vis-à-vis her husband’s estate. I have no doubt even without seeing a marriage certificate that she was married to the late son of the deceased. But that is not enough. Had it been his estate that was the subject of this cause, matters would have been different. But they is not.

6. I agree therefore that her Application as framed is akin to a stranger without first properly identifying himself barges into a homestead. He will be repulsed. She must properly bring herself within the estate of her father-in-law through her late husband’s estate. Until then she will have to be content with what little share she and her children have received.

7. The Objection is upheld and the Application dated 3. 8.2004 is hereby struck out with costs. Orders accordingly.

Dated and delivered in open court on this 22nd day of November 2004.

I.LENAOLA

AG. JUDGE

Mr. Utuku for Mr. Njage for Respondent

Applicant -present.

I.LENAOLA

A.G. JUDGE