[2015] KEHC 6300 (KLR)
The court held that the summons for revocation of grant was premature because the grant ad litem issued to the applicant was limited solely to the filing of suit and did not authorize the distribution of the estate or any part thereof. The objector/respondent should await the issuance of a full grant before raising...
Source-derived case information.
- Citation
- [2015] KEHC 6300 (KLR)
- Parties
- Objector: Elizabeth Wanjiku Muchira; Applicant: Josephine Egwa Mbela
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Separation Cause 1874 of 2011
- Procedural Posture
- Succession Cause / Ruling on Notice of Motion to Strike Out Summons for Revocation of Grant
- Outcome
- summons for revocation struck out with costs to applicant
- Judges
- LA Achode
- Legal Topics
- Succession, Grant of Letters of Administration, Revocation of Grant, Continuing Trust, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Wanjiku Muchira
Objector
Josephine Egwa Mbela
Applicant
Procedural Posture
Succession Cause / Ruling on Notice of Motion to Strike Out Summons for Revocation of Grant
Legal Issues
- 1 Whether the summons for revocation of grant was properly before the court given the limited nature of the grant ad litem.
- 2 Whether the grant ad litem issued to the applicant could be revoked before a full grant is issued.
- 3 Whether the summons for revocation constituted an abuse of court process.
Ratio Decidendi
The court held that the summons for revocation of grant was premature because the grant ad litem issued to the applicant was limited solely to the filing of suit and did not authorize the distribution of the estate or any part thereof. The objector/respondent should await the issuance of a full grant before raising any objection regarding the administration or distribution of the estate. As such, the application for revocation was not properly before the court at this stage and amounted to an abuse of the court process. The court therefore struck out the summons for revocation with costs to the applicant.
Court Disposition
summons for revocation struck out with costs to applicant
Orders
- The summons for revocation filed on 20th September 2012 is struck out.
- Costs awarded to the applicant in the Notice of Motion dated 19th February 2014.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1874 OF 2011
IN THE MATTER OF THE ESTATE OF ERIC WILLIAM MBELA (DECEASED)
ELIZABETH WANJIKU MUCHIRA…………………OBJECTOR/RESPONDENT
VERSUS
JOSEPHINE EGWA MBELA…………………………RESPONDENT/APPLICANT
R U L I N G
1)This cause commenced on 1st September 2011, when the Respondent Josephine Egwa Mbela petitioned the court for letters of Administration Ad Litem, to the intestate Estate of the deceased Erick William Mbela. She presented the petition in her capacity as the widow of the deceased. On 20th September 2012 the Objector, Elizabeth Wanjiku Muchira who is the mother of the deceased, filed a summons seeking the revocation of the said grant. The application for revocation was grounded on allegations that the grant was obtained fraudulently by making of a false statement and by concealment of material facts from the court. It was also alleged that the Applicant had failed to produce to the court a full and accurate inventory and account of assets and liabilities of the deceased.
2)There seems to be no response to the summons and neither was the application prosecuted. Instead the Respondent/Applicant filed a Notice of Motion dated 19th February 2014 seeking that the said application be struck out with costs. The Notice of Motion was premised on grounds that the Summons for Revocation is scandalous, frivolous and vexatious and stands the risk of prejudicing, embarrassing and/or delaying the fair trial of the action and is an abuse of the court process.
3)The Summons for Revocation is supported by the affidavit sworn on 19th September 2012 by the Objector/Respondent in which she depones that the grant of Letters of Administration ought to have been made to more than one person since there is a continuing trust. Further that the relationship between the deceased and the Respondent was strained before his death.
4) The Notice of Motion on the other hand was supported by the affidavit of the Respondent/Applicant sworn on 19th February 2014, in which she deponed that the Grant of Letters of Administration Ad Litem issued to her by the court, was limited only to filing of suit. That she did use the grant to file High Court Civil Suit No. 459 of 2012 at Nairobi.
5) There is also no response to this Notice of Motion, but it is the application for consideration before me.
6)Upon assessment of the grounds in both the Summons for Revocation and the Notice of Motion, and upon consideration of the averments in the supporting affidavits, I find that the Notice of Motion dated 19th February 2014 filed by the Respondent/Applicant on 19th February 2013 has merit, for the reason that the Summons for Revocation is premature. The Objector/Respondent should await the filing of the full grant to raise her objection, since the Grant Ad Litem issued to the Respondent/Applicant was limited only to the filing of suit, and did not extend to the distribution of the Estate or any part thereof.
For the foregoing reasons the Summons for revocation filed on 20th September 2012 is hereby struck out with costs to the Applicant in the Notice of Motion dated 19th February 2014.
SIGNED DATEDandDELIVEREDin open court this 24th day of February 2015.
…………………………………….
L. A. ACHODE
JUDGE