[2010] KEHC 666 (KLR)
The court found that the Citor, Nashon W. Nerima, lacked legal standing to pursue the claim on behalf of his deceased father’s estate because he had not demonstrated that he was the personal or legal representative of that estate. The court emphasized that succession proceedings require proper legal capacity, and it...
Source-derived case information.
- Citation
- [2010] KEHC 666 (KLR)
- Parties
- Applicant: Nashon W. Nerima; Respondent: Stephen Juma Makhumbo
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Citation Cause 61 of 2010
- Procedural Posture
- Citation Cause / Ruling
- Outcome
- citation struck off for lack of legal competence; liberty to revive upon regularization of legal standing
- Legal Topics
- Succession Proceedings, Grant of Letters of Administration, Citation Procedure, Locus Standi, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nashon W. Nerima
Applicant
Stephen Juma Makhumbo
Respondent
Procedural Posture
Citation Cause / Ruling
Legal Issues
- 1 Whether the Citor has legal standing to pursue a claim on behalf of his deceased father’s estate in the succession proceedings.
- 2 Whether the Citee has unreasonably refused to take out a grant of letters of administration to the deceased's estate.
- 3 Whether the citation is legally competent in the absence of the Citor's authority to represent his father's estate.
Ratio Decidendi
The court found that the Citor, Nashon W. Nerima, lacked legal standing to pursue the claim on behalf of his deceased father’s estate because he had not demonstrated that he was the personal or legal representative of that estate. The court emphasized that succession proceedings require proper legal capacity, and it is insufficient for a party to purport to represent an estate without formal appointment. Consequently, the citation was found to lack legal competence and was struck off, with liberty for the Citor to regularize his position and revive the proceedings if he obtains the requisite authority.
Court Disposition
citation struck off for lack of legal competence; liberty to revive upon regularization of legal standing
Orders
- The citation is struck off for lack of legal competence.
- Each party will bear its own costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CITATION CAUSE NO. 61 OF 2010
IN THE MATTER OF THE ESTATE OF BARASA MUKHUMBO – DECEASED
A N D
NASHON W. NERIMA …………..…………………………………………… CITOR
V E R S U S
STEPHEN JUMA MAKHUMBO ..…………………………………………… CITEE
R U L I N G
1. The Citor herein, Nashon W. Nerima by his citation dated 29. 1.2010 claims that the citee, Stephen Juma Makhumbo has refused to take out a grant of letters of administration to his brother’s estate and yet he, the citor, has an interest in it. That the deceased, Barasa Makhumbo had five (5) acres of land to be excised from L.R. no. Bunyala/Namirama/356 and agreed to transfer the same to one Joash Erima Ochwanga but died before effectively transferring the said parcel of land. That, he, the Citor, has the lawful right to the land and it should be transferred to him.
2. In a Replying Affidavit sworn on 8. 3.2010, the Citee’s answer to the Citation is that he was aware that the Citor’s father paid the Citee’s brother KShs.38,000/= on 14. 10. 1990 but the latter breached the agreement for sale when he failed to pay the entire purchase price. Further, that the whole transaction did not involve the Land Control Board for consent to transfer and in any event, the Citor was not his father’s personal or legal representative and he cannot pursue any claim on behalf of the estate. That the Citation should therefore be struck off with costs to him.
3. As I understand the concept of a Citation, it is addressed to a particular person to provide a reason why a particular step should not be taken. In the instant case, the Citation is one to accept or refuse a grant. In Law of Succession by W. M. Musyoka, Law Africa, 2006, it is stated that such a Citation is made by a person with an inferior right to take out a grant and is addressed to a person with a superior right and who has refused or declined to take out a grant but at the same time fails to renounce his or her right to a grant.
4. The Citor has made out a case that the Citee has refused to take out a grant in respect of his brother’s estate but it seems to me that the reasons given by the Citor and the response by the Citee would place both parties in an awkward position. The Citor’s claim is to a parcel of land allegedly purchased by his father from the Citee’s brother. Sadly, he has failed to show that he is entitled to pursue any claim on his father’s estate and he ought to regularize that position first. It is not enough that his father has died and therefore he can in a very “kienyeji” way purport to represent that estate in separate succession proceedings. I therefore agree with the Citee that the Citor must sort out that issue before attempting to pursue any claim on behalf of his father’s estate.
5. Having regularized his position as above, the Citor may revive the present proceedings but in the meantime the Citation herein lacks legal competence and is struck off.
6. Each party will bear its own costs.
7. Orders accordingly.
Delivered, dated and signed at Kakamega this 18th day of November, 2010
ISAAC LENAOLA
J U D G E