[2007] KEHC 3123 (KLR)
The court found that while the applicants, as beneficiaries, are entitled to seek orders for accounts from the administrators under Section 83(e) of the Law of Succession Act, the procedure adopted was fatally defective. The application should have been brought by way of originating summons under Order XXXVI Rule 1...
Source-derived case information.
- Citation
- [2007] KEHC 3123 (KLR)
- Parties
- Applicant: Fatma Abubakar; Applicant: Hamida Abubakar; Respondent: Farook Abubakar; Respondent: Mohamed Abubakar
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 664 of 1994
- Procedural Posture
- Probate Application / Ruling on Interlocutory Summons
- Outcome
- Application struck out as fatally defective; directions issued for prosecution of pending summons for confirmation of grant.
- Legal Topics
- Probate and Administration, Grant of Letters of Administration, Confirmation of Grant, Procedural Defects, Beneficiaries Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fatma Abubakar
Applicant
Hamida Abubakar
Applicant
Farook Abubakar
Respondent
Mohamed Abubakar
Respondent
Procedural Posture
Probate Application / Ruling on Interlocutory Summons
Legal Issues
- 1 Whether the applicants were entitled to seek orders for accounts and injunction against the respondents as administrators of the estate.
- 2 Whether the application was fatally defective for not being brought by originating summons under Order XXXVI of the Civil Procedure Rules.
- 3 Whether the court should exercise its inherent power under Rule 73 of the Probate and Administration Rules to determine the application despite procedural defects.
Ratio Decidendi
The court found that while the applicants, as beneficiaries, are entitled to seek orders for accounts from the administrators under Section 83(e) of the Law of Succession Act, the procedure adopted was fatally defective. The application should have been brought by way of originating summons under Order XXXVI Rule 1 of the Civil Procedure Rules. The Law of Succession Act and its rules do not provide a specific procedure for such applications, but the Civil Procedure Rules fill this gap. The court agreed with the respondents that the summons was incompetent and ordered it struck out. However, exercising its inherent power under Rule 73 of the Probate and Administration Rules, the court...
Court Disposition
Application struck out as fatally defective; directions issued for prosecution of pending summons for confirmation of grant.
Orders
- The summons dated 17.10.05 is struck out with each party bearing their own costs.
- Respondents are directed to prosecute the summons for confirmation of grant dated 14.11.96 within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
THE HIGH COURT OF KENYA
AT MOMBASA
Prob & Admin Cause 664 of 1994
IN THE MATTER OF: ABUBAKAR MOHDHAR MOHAMED (DECEASED)
AND
IN THE MATTER OF: AN APPLICATION BY FAROOK ABUBAKAR AND
MOHAMED ABUBAKAR FOR A GRANT OF PROBATE.
FATMA ABUBAKA & ANOR. ……………………...…………..PLAINTIFFS
VERSUS
FAROOQ ABUBAKAR & ANOTHER…………………..…RESPONDENTS
R U L I N G
By a summons dated 17. 10. 05 filed pursuant to sections 83, 94 and 95 of the Law of Succession Act and under Rule 73 of the Probate and Administration Rules, the Applicants herein, Fatma Abubakar and Hamida Abubakar prayed for the following orders interalia against Farook Abubakar and Mohamed Abubakar and Mohamed Abubakar (the respondents):
(a) An order directing the respondents to provide full and detailed accounts including income and expenditure of the deceased’s estate and in default they be criminally punished.
(b) An order of injunction to restrain the Respondents from disposing of any assets of the estate. The summons is supported by the affidavit of Fatma Abubakar sworn on 17. 10. 2005.
Each respondent filed a replying affidavit to oppose the application.
What is undisputed is that the Respondents herein were granted temporary grant letters of administration in respect of the estate of Abubakar Mohdhar Mohamed (deceased) on 2nd day of March 1995. The applicant filed a summons for confirmation of grant dated 14. 11. 1996. The same is still pending for hearing. No reasons have been given by either side as to why the application for confirmation of grant has not been prosecuted for the last 10 years despite the fact that the Respondents were served with a notice dated 20. 9.96 by this court pursuant to section 73 of the Law of succession Act. That is an issue which should be dealt with at a later stage.
Mr. Odongo advocate who appeared for the Respondents urged this court to strike out the summons because the applicants should have approached this court by way of an originating summons under Order XXXVI of the Civil Procedure Rules. Mr. Hassan advocate for the applicants was of the view that this court should exercise its inherent power under rule 73 of the probate and administration and ignore the application of order XXXVI of the Civil Procedure Rules and determine the application the way it is.
I have carefully considered the rival submissions over the competency of the application. The main prayer sought in this summons is for an order directing the Respondent in their capacities as executors and administrators of the estate of Abubakar Mohdhar Mohamed, deceased, to provide accounts. It is imperative to note that the applicants are entitled to seek for the aforesaid orders under Section 83(e) of the Law of Succession Act. The aforesaid Act and the rules ecompassed therein do not provide for the procedure of filing such an application. The summons before this court was filed by some of the beneficiaries of the estate of Abubakar Mohdhar Mohamed, deceased. Their application fall within the ambit of order XXXVI rule 1 of the civil Procedure Rules. In the end I agree with the submissions of Mr. Odongo advocate for the Respondents that the applicants should have approached this court by way of an originating summons. The summons now before court is fatally defective. It is hereby ordered struck out with each party bearing their own costs. Let the parties properly approach the court. In order for the parties not to go and sleep over this matter and in exercise of my inherent power under rule 73 of the Probate and Administration Rules, the Respondents are directed to prosecute the summons for confirmation of grant dated 14. 11. 96 within 30 days from the date of this ruling and in default the aforesaid application and the grant of letters of administration issued on 2/3/95 shall stand dismissed and revoked respectively.
Dated and delivered at Mombasa this 9th day of February 2007.
J.K. SERGON
J U D G E
In open Court in the presence of Mr. Odongo for the Respondent.
N/A Hassan for the plaintiff.
Court:
Certified copies of the proceedings and ruling be supplied upon payment of the necessary fees.
Sergon, J