[2016] KEHC 4753 (KLR)
The court found that granting the orders sought by the applicant would be imprudent given the unresolved objections and allegations raised by the respondent regarding the administration of the estate and the process leading to the grant. The court emphasized its duty to resolve disputes rather than exacerbate them,...
Source-derived case information.
- Citation
- [2016] KEHC 4753 (KLR)
- Parties
- Applicant: Emily Wangui Kagotho; Respondent: Esther Wambui Kagotho
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 363 of 2011
- Procedural Posture
- Succession Cause / Ruling on Summons General for Execution of Estate Documents
- Outcome
- application dismissed with costs to the objector
- Judges
- JM Mativo
- Legal Topics
- Probate and Administration, Grant Confirmation, Estate Distribution, Joint Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emily Wangui Kagotho
Applicant
Esther Wambui Kagotho
Respondent
Procedural Posture
Succession Cause / Ruling on Summons General for Execution of Estate Documents
Legal Issues
- 1 Whether the respondent should be compelled to execute documents necessary for the conclusion of the succession cause.
- 2 Whether the applicant is entitled to orders authorizing the executive officer to execute documents on behalf of the respondent in default.
- 3 Whether the application should be allowed in light of the objector's allegations regarding the grant and administration of the estate.
Ratio Decidendi
The court found that granting the orders sought by the applicant would be imprudent given the unresolved objections and allegations raised by the respondent regarding the administration of the estate and the process leading to the grant. The court emphasized its duty to resolve disputes rather than exacerbate them, and determined that issuing the orders would only serve to worsen the dispute between the parties. Consequently, the application was dismissed with costs to the objector.
Court Disposition
application dismissed with costs to the objector
Orders
- The application dated 28th May 2014 is dismissed with costs to the objector.
- Right of appeal within 30 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 363 OF 2011
IN THE MATTER OF THE ESTATE OF THE LATE HUDSON KAGOTHO MACHARIA-DECEASED
EMILY WANGUI KAGOTHO …………..............PETITIONER
VERSUS
ESTHER WAMBUI KAGOTHO…………............OBJECTOR
RULING
By way of a summons general dated 28th May 2014 expressed under the provisions of Rules 49and73of the Probate and Administration Rules, the petitioner (hereinafter referred to as the applicant) seeks orders that the Respondent executes all the requisite documents to facilitate the conclusion of this cause, being forms RL7, RL19, partition forms, mutation forms and all other land control board documents and to surrender her pass port, pin and original title deed in default the court authorizes the executive officer of this court to execute the said documents and order the Land Registrar, Nyeri to dispense with the production of the original title and such other necessary documents.
On 22. 2.2016 when the matter came up before me, Mr. Kamwenji advocate appeared for the applicant while Ndata Mugo advocate appeared for the objector and both parties agreed by consent to have the application dispensed by way of written submissions. I directed both parties to file their written submissions within two weeks from the said date and a mention date was fixed for 24th May 2016. On the said date, only counsel for the applicant had filed his submissions and neither did counsel for the objector or the objector attend court.
I have looked at the application before me and the replying affidavit filed by the objector on 20th May 2015. I note that the objector has raised pertinent issues touching on the grant and generally the manner in which these proceedings have proceeded. Specifically, the objector states that she only learnt the petitioner took a date for her objection without informing her and applied for the grant to be issued to herself and the petitioner jointly. Indeed, the record shows that on 10. 5.2013, she did not attend court when the orders were made appointing her and the petitioner as joint administrators. Further, she states that she was not served with the application for confirmation of the grant and avers that the applicant has not been honest and diligent in administering the estate, and that she could have filed an affidavit of protest opposing the proposed mode of distribution. She also disputes the existence of a will and stated that she was in the process of applying to set aside the orders hither made and seek to have the objection heard. She argues that her objection raises weighty issues.
In my view, with the above information on record, it will be imprudent for this court to allow the orders sought as such orders will only serve to make the simmering dispute much murkier. A court of law is enjoined to adjudicate and resolve disputes and should not be seen to issue orders which will have a direct bearing in aggravating the dispute between the parties.
I accordingly, I find no reasonable basis for me to allow the application before me. I hereby dismiss it with costs to the objector.
Right of appeal 30 days
Dated at Nyeri this 9th day of June2016
John M. Mativo
Judge