[2021] KEHC 5320 (KLR)
The court declined to confirm the grant of letters of administration because the administrators failed to provide a comprehensive list of all beneficiaries and estate assets, and did not demonstrate that all beneficiaries had given informed and voluntary consent to the proposed mode of distribution. The court found...
Source-derived case information.
- Citation
- [2021] KEHC 5320 (KLR)
- Parties
- Applicant: Redempta Mary Kadenge Amisi; Applicant: Frederick Ayigo Amisi; Applicant: Michael Imbusi Amisi; Applicant: Stanislaus Andrew Amisi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 12 of 2018
- Procedural Posture
- Succession Cause / Ruling on Summons for Confirmation of Grant
- Outcome
- summons for confirmation of grant dismissed
- Judges
- BA Mitullah
- Legal Topics
- Confirmation of Grant, Distribution of Estate, Beneficiary Rights, Consent to Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Redempta Mary Kadenge Amisi
Applicant
Frederick Ayigo Amisi
Applicant
Michael Imbusi Amisi
Applicant
Stanislaus Andrew Amisi
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Confirmation of Grant
Legal Issues
- 1 Whether the grant of letters of administration can be confirmed in the absence of clear identification of all beneficiaries and estate assets.
- 2 Whether the consent to the proposed mode of distribution by some beneficiaries is informed and valid.
- 3 Whether the exclusion of certain beneficiaries from inheritance is justified or explained.
Ratio Decidendi
The court declined to confirm the grant of letters of administration because the administrators failed to provide a comprehensive list of all beneficiaries and estate assets, and did not demonstrate that all beneficiaries had given informed and voluntary consent to the proposed mode of distribution. The court found that the consents provided were insufficient, as there was no independent statement from each beneficiary confirming their understanding of their entitlement and their willingness to forego their share. The exclusion of certain beneficiaries was unexplained, and the documentation did not satisfy the statutory requirements for confirmation of grant. As a result, the summons for...
Court Disposition
summons for confirmation of grant dismissed
Orders
- The summons for confirmation of grant are dismissed.
- No confirmation of grant is issued until all beneficiaries are properly identified and their informed consent is obtained.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO.12 of 2018
IN THE MATTER OF THE ESTATE OF THE LATE JOTHAM ANGUZA AMISI (DECEASED)
(1) REDEMPTA MARY KADENGE AMISI
(2) FREDERICK AYIGO AMISI
(3) MICHAEL IMBUSI AMISI
(4) STANISLAUS ANDREW AMISI ..................................ADMINISTRATORS
RULING
1. The Court has before it an Application for confirmation of the grant of Letters of Administration issued to the above named Administrators on 14th November 2018. The Summons is “brought under Rule 71(3) of the Law of Succession Act Cap 160 and all enabling provisions of the law” and was filed on 6th November 2019.
2. The Summons does not list the Beneficiaries to the Estate nor the property comprised in the Estate. The Supporting Affidavit is a combined Affidavit of the 4 administrators. It sets out that the Deceased passed away on 12th July 2017 and that the Letters of Administration were issued to on 14th November 2018. The property (real and personal) comprised in the Estate is not listed, nor are the beneficiaries. However, the Deponents of the Affidavit, have exhibited as FRSM -1 a Schedule of Distribution which shows an intention to share the Estate amongst the Administrators only.
3. Attached to the Summons is a “Consent to the Mode of Distribution containing a list of 5 names with four corresponding signatures and a thumbprint. The Petition filed on 21st June 2018 has attached a death certificate that describes the Deceased as a “Retired Civil Servant” who was resident in Karen, Nairobi. It lists 12 potential beneficiaries, namely:
(a) Redempta Mary Kadenge Amisi (Widow)
(b) Margaret Luhunga Amisi
(c) Kennedy Munyoni Amisi (Deceased)
(d) Jane Chepngeny Amisi
(e) Hellen Luhanga Amisi
(f) Frederick Ayigo Amisi
(g) Michael Imbusi Amisi
(h) Stanislaus Andrew Amisi
(i) Brenda Kavaya Amisi
(j) Clarke Christine Amisi
(k) Lyndah Gondosio Amisi
(l) Damaris Angano Amisi
4. The Petition Lists the Estate as comprising:
(a) Tiriki/Gisambai/399
(b) Tiriki/Gisambai/396
(c) Tiriki/Gisambai/397
(d) Tiriki/Gisambai/1481
(e) Tiriki/Gisambai/659
(f) Tiriki/Gisambai/021
(g) L/R 3589/55
(h) SAME 500 Tractor
In view of the Deceased’s profession, the Court would have expected him to have personal assets, in particular bank accounts, a pension, perhaps life insurance. The Petition and the Summons for Confirmation are silent on these matters. In addition, the Title Deed of the Property title number Titiki/Gisambai/1481 lists an encumbrance namely a Charge to Vihiga Trade Development Joint Loan Board for KShs.70,000/=. That is not explained.
5. Notwithstanding the above list, the “Schedule of Distribution Table”, Lists a property L.R. No 3589/55 to be shared between “The four heirs/beneficiaries….” There is no explanation as to why the other Beneficiaries/Dependants cease to be heirs. Similarly, there is no explanation given as to whether the son called Kennedy Munyimi Amisi predeceased his father and/or whether he has any surviving heirs.
6. The Administrators have exhibited Affidavits from Christine Amisi Clark, Hellen Luhunga Amisi, Brenda Amisi-Hutchinson and Michael Imbusi Amisi. In those Affidavits, the deponents signify their consent to the distribution. That raises a question of whether their consent is an informed consent. In particular, the members of the family who are being disinherited by the Administrators have not signified that they understand that they have a right to inherit but are willingly giving up their entitlement. Of particular concern in that regard is the statement of Brenda Amisi-Hutchinson “THAT I am advised by counsel on the record that I am required to be present in court….” What other advise was given.
7. In the absence of an independent statement of each of the beneficiaries that they understand their entitlement but are willing to forego their shares to the Administrators, this Court is unable to confirm the grant. As a consequence the Summons are dismissed.
Order accordingly,
FARAH S. AMIN
JUDGE
Signed and Dated and Delivered at the High Court in Kakamega on this the 17th day of June 2021
In the Presence of:
Mr Mugalo for the Applicants
Court Assistant:
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