[2021] KEHC 918 (KLR)
The court held that it would be improper to determine the application dated 9th November 2020 without proof of death of Peter Busula Muyale and service of the application on his heirs or successors. The court emphasized the importance of procedural fairness and the need to avoid making orders that could later be...
Source-derived case information.
- Citation
- [2021] KEHC 918 (KLR)
- Parties
- Applicant: Bereneta Ajenya Akhura; Applicant: Peter Busula Muyale; Respondent: Applicants (unnamed, challenging orders)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 295 of 2003
- Procedural Posture
- Succession Cause / Ruling on Application for Review or Setting Aside of Confirmation Orders
- Outcome
- Application stood over for compliance with directions; no determination on merits until proof of death and service on heirs.
- Judges
- DN Musyoka
- Legal Topics
- Succession, Grant Revocation, Service of Process, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bereneta Ajenya Akhura
Applicant
Peter Busula Muyale
Applicant
Applicants (unnamed, challenging orders)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review or Setting Aside of Confirmation Orders
Legal Issues
- 1 Whether the orders of 30th April 2020 should be reviewed or set aside for lack of service and hearing of the applicants.
- 2 Whether Peter Busula Muyale was a brother of the deceased and entitled to a share in the estate.
- 3 Whether proof of death of Peter Busula Muyale and service on his heirs is necessary before determining the application.
Ratio Decidendi
The court held that it would be improper to determine the application dated 9th November 2020 without proof of death of Peter Busula Muyale and service of the application on his heirs or successors. The court emphasized the importance of procedural fairness and the need to avoid making orders that could later be challenged on grounds of lack of service or hearing. The presence of Peter Busula Muyale in the initial succession documents necessitates his involvement or, if deceased, that of his heirs. The application for review or setting aside of the orders of 30th April 2020 cannot be determined until these procedural requirements are satisfied.
Court Disposition
Application stood over for compliance with directions; no determination on merits until proof of death and service on heirs.
Orders
- Proof of death of Peter Busula Muyale to be provided before further proceedings.
- If deceased, his heirs or successors must be served with the application dated 9th November 2020.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 295 OF 2003
IN THE MATTER OF THE ESTATE OF AKHURA KUBAKHA ALIAS AKHUA MUYALE (DECEASED)
RULING
1. On 30th April 2020, I delivered a judgment on an application, dated 20th November 2018, for appointment of administrators, and confirmation of the grant of the persons to be appointed as such. The previous administrators had been removed from office, on orders made on 23rd October 2018, when the revocation application, dated 21st November 2016 was not opposed, and was allowed as prayed. In my judgement of 30th April 2020, I identified the persons who were beneficially entitled to a share in the estate, appointed fresh administrators, confirmed the fresh grant, and distributed the estate, after I had heard the applicants in the application, 20th November 2018, orally.
2. The application, dated 9th November 2020, is for review or setting aside of the orders of 30th April 2020, on grounds that the applicants were not heard when the application, dated 20th November 2018, came up for hearing, and they had not been served with the application, dated 21st November 2016. They also argue that Peter Busula Muyale was never a brother of the deceased.
3. I note that the revocation application, dated 21st November 2016, which led to the orders of 23rd October 2018, and the subsequent orders of 30th April 2020, was by Bereneta Ajenya Akhura and Peter Busula Muyale. I note that both Bereneta and Peter were not heard on the application, dated 9th November 2020. Am told Peter is dead. No proof has been provided. His successors or heirs were not served. The two had mounted the application, dated 21st November 2016, claiming that the applicants herein had obtained representation and had confirmed their grant without involving them. We risk doing the same, and inviting a future application on similar grounds.
4. The applicants say that Peter Busula Muyale was never a brother of the deceased. Well, the letter from the Chief of Ilesi Location, dated 27th February 2002, identified him as such, and he was described as such in the petition that was lodged herein on 26th June 2003. One would wonder why he was treated as such in those documents if he was not beneficially entitled to a share in the estate. The fact of his mention in those initial documents is the more the reason that the application, dated 9th November 2020, ought to be served on him, and in the event he is dead, as alleged, proof be provided of his death, and his heirs or successors be served.
5. I shall, therefore, not determine the application, dated 9th November 2020, before proof of death of Peter Busula Muyale is provided, and his survivors served with the application, dated 9th November 2020. The matter shall be mentioned, for confirmation that the directions herein have been complied with. The date for mention shall be given at the delivery of this ruling, or it shall be obtained at the registry.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF DECEMBER, 2021
W. MUSYOKA
JUDGE
In the presence of:-
Erick Zalo – Court Assistant
Julius Machika