[2014] KEHC 7438 (KLR)
The court held that it is both undesirable and unlawful to have two separate petitions and grants of administration in respect of the same deceased estate. The deceased was resident and owned property in Busia, and there was no justification for filing a parallel petition in Kisumu. However, the application for...
Source-derived case information.
- Citation
- [2014] KEHC 7438 (KLR)
- Parties
- Applicant: Edward Esikedi Oling’among; Applicant: Jacktone Ashiembi Obanda; Respondent: Jonathan Sikutatu; Respondent: Alice Imela Makokha
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 135b of 2007
- Procedural Posture
- Probate and Administration Cause / Ruling on Preliminary Application for Transfer and Consolidation
- Outcome
- Application for transfer and consolidation refused; no order as to costs.
- Legal Topics
- Probate and Administration, Revocation of Grant, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Esikedi Oling’among
Applicant
Jacktone Ashiembi Obanda
Applicant
Jonathan Sikutatu
Respondent
Alice Imela Makokha
Respondent
Procedural Posture
Probate and Administration Cause / Ruling on Preliminary Application for Transfer and Consolidation
Legal Issues
- 1 Whether the High Court at Busia has jurisdiction to order the transfer and consolidation of Kisumu HCSC No.395 of 2008 with Busia HCSC No.135B of 2007.
- 2 Whether it is lawful to have two separate petitions and grants of administration in respect of the same deceased estate.
Ratio Decidendi
The court held that it is both undesirable and unlawful to have two separate petitions and grants of administration in respect of the same deceased estate. The deceased was resident and owned property in Busia, and there was no justification for filing a parallel petition in Kisumu. However, the application for transfer of the Kisumu cause must be made before the Kisumu court, not the Busia court. Therefore, the Busia High Court declined to grant the order for transfer and consolidation, directing the applicant to move the Kisumu Probate and Administration Court for such orders. No order was made as to costs.
Court Disposition
Application for transfer and consolidation refused; no order as to costs.
Orders
- Order for transfer and consolidation of Kisumu HCSC No.395 of 2008 with Busia HCSC No.135B of 2007 is refused.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINISTRATION CAUSE NO. 135B OF 2007
EDWARD ESIKEDI OLING’AMONG ………………..1ST OBJECTOR/APPLICANT
JACKTONE ASHIEMBI OBANDA ……………………2ND OBJECTOR/APPLICANT
VERSUS
JONATHAN SIKUTATU ……………………………ADMINISTRATOR/RESPONDENT
ALICE IMELA MAKOKHA ………………………..ADMINISTRATOR/RESPONDENT
R U L I N G
In a summons dated 12th August 2010, the Applicants seek the following orders:
“1. THAT this Honourable Court be pleased to order the transfer of Kisumu HCSC No.395 of 2008 to Busia High Court and be consolidated with Busia HCSC No.135B of 2007 relating to the estate of the late IDWARE ESIKEDI (deceased).
2. THAT the grant of letters of administration intestate issued jointly to the named JONATHAN SIKUTATU ESKEDI and ALICE EMELA MAKOKHA by this Honourable court in this case on the 31st of October 2007 and the subsequent certificate of confirmation dated the 4th day of November 2008, be revoked and/or annulled.
3. THAT this court be pleased to issue an order of rectification with respect to the grant issued to EDWARA ESIKEDI OLING’AMONG’ vide Kisumu HCSC No.395 of 2008 and the same to include JACKTON ASHIEMBI OBANDA, a beneficial purchaser of the estate of the late deceased person as a joint administrator thereof.
4. THAT this court be pleased to issue any other orders as it may deem fit to issue in the circumstances and in the interest of justice.
5. THAT the costs of this application be provided for.”
At this state I propose to deal only with prayer (l) and the reason will be soon apparent. Idwara Esikedi (the deceased) died intestate on 25th October 2006. The Petitioners herein commenced this Petition for Letters of Administration intestate on 23rd July 2007. They obtained Grant of the Letters on 31st October 2007 and which Grant was subsequently confirmed on 4th November 2008.
For some reason, perhaps ill-advised, the 1st objectors herein commenced a parallel Petition to the same estate at the High Court in Kisumu vide – succession cause No.H.C.395 of 2008. In that cause, the 1st Objector was granted Letters of Administration intestate on 29/08/2008. It would seem that the same are yet to be confirmed. It is now the wish of the 1st Objector that the Kisumu file be transferred and consolidated with these proceedings so that the summons for revocation can be heard and determined.
It is most undesirable, in fact unlawful, that two separate Petitions should be filed in respect to the estate of one deceased person. In this instance the deceased died at Busia District Hospital and while a resident of Ochude sub location within the said County. His only property is South Teso/Angoromo/5771 which is situated within the said County. There is no reason why a Petition to his estate should have been filed anywhere else other than in the High Court at Busia. Due to the ill-advised step taken by the 1st Objector, there are now 2 grants of administration to the deceased estate made to two different people. This should not be left to stand.
The 1st Objector may have now realized the futility of his action and seeks the transfer of his cause from Kisumu to Busia so that the two matters are dealt with together. That seems to make sense but the application for transfer of the Kisumu cause ought to be made before the Judge at Kisumu. For that reason I am unable to grant order 1 on this application. Let the objector move the Probate and Administration Court at Kisumu.
I make no order on costs.
F. TUIYOTT
J U D G E
DATED, SIGNED AND DELIVERED AT BUSIA THIS 23RD DAY OF JANUARY 2014.
IN THE PRESENCE OF:
…………………………………………FOR 1ST OBJECTOR/APPLICANT
………………………………………..FOR 2ND OBJECTOR/APPLICANT
…………………………………FOR ADMINISTRATOR/RESPONDENT