[2022] KEHC 10837 (KLR)

Holmes v Holmes (Succession Cause 10 of 2018) [2022] KEHC 10837 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10837 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Succession Cause 10 of 2018

HPG Waweru, J

June 9, 2022

Between

Hazel Holmes

Petitioner

and

Adrian Ralph Holmes

Objector

Ruling

1. The Deceased herein Derek Holmes, died on 02/05/2017. He was survived by his wife, Ezel Holmes, who is the Petitioner herein, and three children (all adults). Those children are Edwin Malcom Holmes, Adrian Ralph Holmes, and Celia Janet Holmes. Adrian is the Objector herein. The Deceased had left a written will which, by a ruling of this court in this cause dated 26th and delivered on 27th June, 2019, was declared invalid for failure to disclose the identities of the attesting witnesses and ambiguity.

2. The Petitioner then brought the present petition filed on 24/09/2020 for a grant of letters of administration intestate in respect to the Deceased’s estate. Two of the above named children of the Deceased consented to a grant being made to their mother, the Petitioner. The petition was gazetted on 28/03/2021 via Gazette Notice No. 2880. The other child who is the Objector herein objected to such grant being made to his mother. He filed his objection to making of grant on 14/04/2021. He also filed on 11/05/2021 an answer to petition for grant and petition by way of cross-application for grant. This ruling is on that objection to making of grant to the Petitioner.

3. The grounds for the objection are –a)That the petition and entire proceedings seeking grant of letters of administration intestate are defective in form and substance and that the court has no jurisdiction to entertain the petition as presented.b)That the Petitioner has been a dishonest person who has previously intermeddled with the Deceased’s estate and that therefore she is not fit to be appointed legal representative of the Deceased.c)That the Petitioner has neither given notice to nor sought the consent of nor renunciation by the Objector prior to filing her petition.d)That the Petitioner has sought the grant by making untrue statements under oath and concealment of material facts.e)That the Petitioner will not administer the estate faithfully and honestly.In answer to the objection to making of grant, the Petitioner filed an affidavit on 04/11/2021.

4. On 19/10/2021 learned counsels agreed that the objection to making of grant be disposed of by way of written submissions. The Objector filed his submissions on 22/11/2021 while the Petitioner filed hers on 01/12/2021. I have considered those submissions along with the cases cited. In his written submissions the Objector has condensed his grounds for objection into two as follows –a)That the petition and relevant forms are defective in form and substance because the Petitioner neither gave notice nor sought consent and/or renunciation from the Objector.b)That the Petitioner has sought to obtain grant through making of untrue statement under oath and concealment of material facts to the effect that every person having an equal or prior right to a grant of representation herein has consented thereto.

5. Section 66 of the Law of Succession Act, Cap 160 provides for preference to be given to certain persons to administer where the deceased died intestate. That section provides –“When a deceased had died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference –a.surviving spouse or spouses, with or without association of other beneficiaries;b.other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided in Part V;(c)The Public Trustee; and(d)Creditors:Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who rove the will.”

6. So, ultimately the court has the final discretion as to the person or persons to whom a grant of letters of administration shall be made. In exercise of that discretion the court will be guided by the best interests of all concerned (usually the dependants and beneficiaries of the estate). Without prejudice to that ultimate discretion, the court will accept as a general guide the order of preference set out in that section. That order of preference is as follows -a)Surviving spouse or spouses, with or without association of other beneficiaries,b)Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interest as provided by Part V of the Act (children, parents, siblings, etc.).c)The Public Trustee andd)Creditors.

7. The Petitioner herein is the spouse of the Deceased. The Objector is a child of the Deceased. Contrary to the assertions of the Objector in his objection, he does not rank equally with his mother. The mother is a rank above him. He is not entitled in the same degree to administer the estate as his mother, and certainly he has no priority over her. It was therefore not necessary for the Petitioner to give any notice to the Objector or the other children or seek their consent or renunciation prior to petitioning for grant. A plain reading of Rule 26 of the Probate and Administration Rules is quite clear on this. That rule provides –“(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.(2) An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 39 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.(3) Unless the court otherwise directs for reasons to be recorded, administration shall be granted to a living person in his own right in preference to the personal representative of a deceased person who would, if living, have been entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree.”

8. The two condensed grounds of objection to making of grant to the Petitioner are therefore not well taken and are based on a misapprehension of the law as set out above. I hereby dismiss them. In doing so I would also make the following observations. Appointment of an administrator is only a preliminary step towards fulfillment of the main mandate of a succession court. That mandate is to be found in section 71 of the Act when the grant is confirmed in order to empower the distribution of any capital assets of the estate. In cases of intestacy, the main mandate of the court is to be satisfied as to the respective identities and shares of all persons beneficially entitled to the estate. In the confirmed grant will be specified all such persons and their respective shares. The sooner the court gets to execute this main mandate the better for all concerned so that it is known who the beneficiaries entitled to the estate are, and their respective shares therein.

9. In the present case, the Deceased had appointed his wife, the Petitioner, as the executor of his will. Unfortunately the will was declared invalid by this court. Upon all the material now before the court I find absolutely nothing that would render the Petitioner unsuitable to administer her late husband’s estate pending distribution. All and any competing interests regarding distribution will be canvassed and ruled upon by the court in the confirmation of grant proceedings. It is usually counterproductive and causes unnecessary delay when competing engagements are made prior to the confirmation stage.

10. In the result I will dismiss the Objector’s objection and petition by way of cross-application. I direct that a grant of letters of administration intestate do issue to the Petitioner Hazel Holmes forthwith. It is so ordered.

11. Regarding costs of the proceedings so far, this court does not wish to foster any further family disputes by making an order as to costs. Such an order may however be ultimately made upon conclusion of the matter as the court might deem fit.

DATED AND SIGNED AT NANYUKI THIS 8TH DAY OF JUNE 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 9TH DAY OF JUNE 2022.