[2018] KEHC 1217 (KLR)
The court found that the death of the original objector, Francis Oriko Omukuya, was not in dispute and that Joseph Muzee Oriko had produced a Limited Grant of Letters of Administration Ad Litem authorizing him to act on behalf of the deceased's estate. The interests of justice required that the application for...
Source-derived case information.
- Citation
- [2018] KEHC 1217 (KLR)
- Parties
- Petitioner: Moses Charles Oriko; Objector: Francis Oriko Omukuya; Objector: Joseph Muzee Oriko
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 90 of 2007
- Procedural Posture
- Probate and Administration Cause / Ruling on Substitution and Rectification Application
- Outcome
- application allowed
- Judges
- OA Sewe
- Legal Topics
- Succession Proceedings, Substitution of Parties, Rectification of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Charles Oriko
Petitioner
Francis Oriko Omukuya
Objector
Joseph Muzee Oriko
Objector
Procedural Posture
Probate and Administration Cause / Ruling on Substitution and Rectification Application
Legal Issues
- 1 Whether the objection proceedings can continue after the death of the original objector.
- 2 Whether substitution of the deceased objector with Joseph Muzee Oriko is proper under the Law of Succession Act.
- 3 Whether rectification of the objection dated 8 October 2007 is warranted.
Ratio Decidendi
The court found that the death of the original objector, Francis Oriko Omukuya, was not in dispute and that Joseph Muzee Oriko had produced a Limited Grant of Letters of Administration Ad Litem authorizing him to act on behalf of the deceased's estate. The interests of justice required that the application for substitution and rectification be allowed to enable the matter to proceed on its merits. The court held that the reasons advanced by the petitioner were matters to be canvassed in the substantive objection proceedings, not at the interlocutory stage. Accordingly, the court allowed the application, ordered rectification of the objection, and directed that the objection proceedings...
Court Disposition
application allowed
Orders
- The objection dated 8 October 2007 is rectified.
- The objector's name, Francis Omukuya Oriko, is deleted from the Summons for Revocation of Grant issued on 8 October 2007 and replaced by Joseph Muzee Oriko.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
PROBATE & ADMINISTRATION CAUSE NO. 90 OF 2007
IN THE MATTER OF THE ESTATE OF BERITA KHAVETSA (DECEASED)
MOSES CHARLES ORIKO.........................................PETITIONER
VERSUS
FRANCIS ORIKO OMUKUYA......................................OBJECTOR
RULING
[1]The application dated 5 December 2014 was filed herein on 8 December 2014 by the law firm of M/s Kigen and Company Advocates on behalf of the Objector, Francis Oriko Omukuya, who has since died. The application was filed pursuant to Section 74of the Law of Succession Act, Chapter 160 of the Laws of Kenya and Rule 4 of the Probate and Administration Rules for orders that the Objection dated 8 October 2007 be rectified; that the Objector's name, Francis Omukuya Oriko, be deleted from the application and be replaced by Joseph Muzee Oriko; and that the Objection proceedings to the estate of the late Berita Khaveta Oriko (deceased) be heard and determined on merit.
[2] The application was supported by the affidavit of Joseph Muzee Oriko in which it was averred that the Objector is now deceased and therefore that there is need for substitution to facilitate the disposal of the Objection application. He annexed to the said affidavit a copy of the Limited Grant of Letters of Administration Ad Litem in respect of the estate of Francis Oriko, authorizing him to attend to the interests of the deceased herein, as well as the deceased's Certificate of Death. It was therefore the contention of the Applicant that it is necessary for the orders sought to be granted to facilitate the expeditious disposal of this longstanding matter.
[3] The application was opposed by the Petitioner, Moses Charles Oriko, vide his Replying Affidavit sworn on 2 November 2017. His posturing was that the orders sought are untenable, there being no dispute that the Objector is now deceased and that there is no surviving cause of action. According to the Petitioner, the property that is the subject of this Succession Cause belonged to his mother Berita Khavetsa Orikoand not his father. He urged for the dismissal of the application with costs.
[4] I have considered the application and the affidavits filed in respect thereof as well as the submissions made herein by Learned Counsel for the parties. I have also perused the record and note that the hearing of the Objection application had commenced on 19 October 2009 but stalled on account of the demise of the Objector, which death is not in dispute. In the premises, the interests of justice would require that the application be allowed to enable the parties move the matter forward, noting that the reasons given by the Petitioner are matters that would best be canvassed in the Objection Proceedings.
[5] In the result, I would allow the application dated 5 December 2014 and would grant orders in respect thereof as follows:
[a] That the objection dated 8 October 2007 be rectified;
[b] That the Objector's name, Francis Omukuya Oriko, be deleted from the Summons for Revocation of Grant issued on 8 October 2007 and be replaced by Joseph Muzee Oriko; and
[c] That the Summons for Revocation to the estate of the late Berita Khaveta Oriko (deceased) be heard and determined on merit should the parties fail to reach a settlement in respect thereof.
It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET THIS 13TH DAY OF DECEMBER, 2018
OLGA SEWE
JUDGE