[2016] KEHC 2651 (KLR)
The court found that since Millicent Akoth Otieno, the sole administratrix, is deceased and had not completed the distribution of the estate, the grant issued to her has become useless and inoperative. The court further held that the grant ad litem issued to the applicant was improperly granted because a full grant...
Source-derived case information.
- Citation
- [2016] KEHC 2651 (KLR)
- Parties
- Applicant: Ezekiel Ochieng' Otieno; Respondent: Millicent Akoth
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 686 'B' of 2010
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- Both the full grant to Millicent Akoth Otieno and the grant ad litem to Ezekiel Ochieng Otieno are revoked. Liberty is granted to apply for fresh letters of administration.
- Judges
- EM Muchoki
- Legal Topics
- Revocation of Grant, Administration of Estates, Intestate Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezekiel Ochieng' Otieno
Applicant
Millicent Akoth
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration issued to Millicent Akoth Otieno should be revoked due to her death and alleged procedural defects.
- 2 Whether the applicant's grant ad litem was lawfully issued when a full grant already existed.
- 3 Whether there is need to restrain the respondent from dealing with the estate assets.
Ratio Decidendi
The court found that since Millicent Akoth Otieno, the sole administratrix, is deceased and had not completed the distribution of the estate, the grant issued to her has become useless and inoperative. The court further held that the grant ad litem issued to the applicant was improperly granted because a full grant was already in existence. Both grants were therefore revoked. The court granted liberty to apply for fresh letters of administration and directed that the order be served on the three houses of the deceased through the Assistant Chief.
Court Disposition
Both the full grant to Millicent Akoth Otieno and the grant ad litem to Ezekiel Ochieng Otieno are revoked. Liberty is granted to apply for fresh letters of administration.
Orders
- The grant of letters of administration issued to Millicent Akoth Otieno is revoked.
- The grant ad litem issued to Ezekiel Ochieng Otieno in Succession Cause No. 941 of 2015 is revoked.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
SUCCESSION CAUSE NO. 686'B' OF 2010
IN THE MATTER OF THE ESTATE OF RICHARD OTIENO WAMARE – DECEASED
AND
EZEKIEL OCHIENG' OTIENO …..................................... APPLICANT
VERSUS
MILLICENT AKOTH …................................................. RESPONDENT
RULING
The deceased to whose estate these proceedings relate is Richard Otieno Wamare who died, intestate, on 13th August 2010. Letters of Administration were issued to Millicent Akoth Otieno in her capacity as his wife. That grant is not dated. Subsequently Ezekiel Ochieng Otieno the applicant in this application and who is named as a beneficiary in this cause filed Miscellenous Succession Cause No. 941 of 2015 and obtained a grant ad litem in the guise that he intended to file on behalf of the estate a suit under the Law Reform Act and the Fatal Accidents Act. The grant issued to him is dated 24th September 2015 and was limited for a period of three months.
On 16th October 2015 Ezekiel Ochieng Otieno filed this summons for revocation of the grant issued to Millicent Akoth and for orders to restrain her from having any dealings in regard to the asset comprising the estate. The grounds for the application are that the grant was obtained fraudulently by means of false allegation and concealment of material facts; that the proceedings obtaining the grant were defective in substance and that the beneficiaries and dependants were not informed of the mode of distribution and were disinherited and further that the Administratix has failed to diligently administer the estate.
When the applicant went to serve the hearing notice for the summons upon the Advocate for the Administratix the Advocate received the notice under protest and indicated that the Administratix is deceased. He even attached a copy of the burial permit. The applicant did confirm to this Court that the administratix who was his step mother is now deceased. That being the case and the Respondent having been a sole administratix and she having not distributed the estate the grant has become useless and inoperative and there is reason to revoke it. The same is accordingly revoked. The grant ad litem issued to the applicant in Succession Cause No. 941 of 2015 is also revoked as he could not lawfully have been issued with a grant ad litem when a full grant had already been issued to Milicent Akoth Otieno. There shall be liberty to apply for letters of administration afresh. The Deputy Registrar to extract this order and have it served upon the three houses of the deceased through the Assistant Chief of the area the estate is situate. It is so ordered.
Signed, dated and delivered at Kisumu this 6th day of October 2016
E. N. MAINA
JUDGE
In the presence of:-
Applicant in person
N/A for Respondent
CC: Serah