[2016] KEHC 4294 (KLR)
The court found that the respondents, despite having a prior right to administer the estate of the deceased, were properly served with a citation and failed to enter appearance or file an answer. The applicant, being a grandson and entitled to a share in the estate, demonstrated that the respondents were unwilling...
Source-derived case information.
- Citation
- [2016] KEHC 4294 (KLR)
- Parties
- Applicant: Ephantus N. Maringa; Respondent: Ndaru Makanya; Respondent: Njeru Makanya; Respondent: Nthiga Makanya
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 451 of 2012
- Procedural Posture
- Succession Application / Ruling on Summons General for Grant of Letters of Administration
- Outcome
- Application granted in terms of prayer 1; no order as to costs.
- Legal Topics
- Probate and Administration, Grant of Letters of Administration, Citation Procedure, Entitlement of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ephantus N. Maringa
Applicant
Ndaru Makanya
Respondent
Njeru Makanya
Respondent
Nthiga Makanya
Respondent
Procedural Posture
Succession Application / Ruling on Summons General for Grant of Letters of Administration
Legal Issues
- 1 Whether the respondents, having been served with a citation, failed to take out a grant of letters of administration within the prescribed period.
- 2 Whether the applicant, as a grandson of the deceased, is entitled to be appointed administrator if the respondents fail to act.
Ratio Decidendi
The court found that the respondents, despite having a prior right to administer the estate of the deceased, were properly served with a citation and failed to enter appearance or file an answer. The applicant, being a grandson and entitled to a share in the estate, demonstrated that the respondents were unwilling to act. In accordance with the Probate and Administration Rules, the court granted the applicant's prayer that the respondents be ordered to take out a grant of letters of administration within 21 days, failing which the grant would be issued to the applicant.
Court Disposition
Application granted in terms of prayer 1; no order as to costs.
Orders
- Ndaru Makanya, Njeru Makanya, and Nthiga Makanya are required to take out a grant of letters of administration in respect of the estate of Makanya Kubutha within 21 days, failing which the grant shall be issued to the applicant.
- No order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCN. CASE NO. 451 OF 2012
IN THE MATTER OF THE ESTATE OF THE LATE MAKANYA KUBUTHA(DECEASED)
EPHANTUS N. MARINGA........................................PETITIONER
VERSUS
NDARU MAKANYA................................................RESPONDENT/1ST CITEE
NJERU MAKANYA................................................RESPONDENT/ 2ND CITEE
NTHIGA MAKANYA..............................................RESPONDENT /3RD CITEE
RULING
1. Ephantus Maringa, the citor/petitioner and the applicant in this citation filed a summons general under Rules 21, 22(5) and 73 Probate and Administration Rules seeking the following orders from this court:
An order to require and order Ndaru Makanya, Njeru Makanya and Nthiga Makanya to take out a grant of letters of administration in respect of the estate of Makanya Kubutha within 21 days failing which he grant to be issued to the applicant.
That the costs of this application be provided for.
2. The application is anchored in the supporting affidavit of the applicant dated 15/03/2016 and on the grounds on the face of the summons general. According to the applicant, he served the three respondent/citees with a citation dated 31/01/2013 in terms of form 32. The grounds in support of the application are that the citees were served with the citation dated 31st January 2013. Additionally the citees have never entered appearance. Additionally the citees have never entered appearance or filed an answer to the citation and that the respondents have a prior right to administer the estate of the deceased. And finally the applicant is entitled to a share in the estate of the deceased. The respondents have never entered an appearance or filed an answer to the citation. He has also stated that the respondent had a prior right to administer the estate of the deceased.
3. The application is grounded in his supporting affidavit. In that affidavit the applicant has stated he is the grand son of the deceased and is entitled to a share in the estate. He has further stated that he served the respondents with a citation to accept or refuse to take letters of administration in respect of the estate of the deceased. He has also stated that the respondents have never entered appearance or filed an answer to the citation. He has further state that the respondents are not keen to administer the estate of the deceased or have the same distributed to the rightful beneficiaries. Finally it also his affidavit evidence that he be appointed as the administrator of the estate if the respondents/citees refuse to accept the said grant within 21 days.
4. The hearing of this application proceeded in the absence of the respondents. I was satisfied that they were properly served and had adequate notice of hearing, which is clear from the affidavit of service dated 11/05/2016
5. The application is unopposed. I find from the applicant's affidavit evidence that the respondents/citees have refused to take out the grant of letters of administration in respect of the estate of the deceased. I also find that they were properly served with the citation and they failed to enter appearance and/or failed to file an answer thereto.
6. Finally I find that they had a prior right to administer the estate of the deceased but failed to do so. I believe the affidavit evidence of the applicant that as the grandson of the deceased he is is entitled to a share in the estate of the deceased.
In the light of the foregoing, I grant the applicant's prayer 1 in terms of his summons general dated 15th March 2016.
7. There will be no orders as to costs.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 6th day of June2016
In the absence of both counsel for the petitioner and the respondents.
Court clerk R. Njue
J.M. BWONWONGA
JUDGE
06/06/2016