[2021] KEHC 5195 (KLR)
The court found that both parties agreed the deceased was not survived by a spouse or child, and that the estate would be governed by section 39 of the Law of Succession Act. Under this section, only certain relatives are entitled to inherit in a prescribed order of priority, which does not include a sister-in-law....
Source-derived case information.
- Citation
- [2021] KEHC 5195 (KLR)
- Parties
- Applicant: Brigiter Anduru Olero; Respondent: Washington Omuga Pesa
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 10 of 2017
- Procedural Posture
- Probate and Administration / Ruling on Summons for Revocation or Annulment of Grant
- Outcome
- application dismissed with costs
- Judges
- KW Kiarie
- Legal Topics
- Succession Without Spouse or Children, Intestate Estate Distribution, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brigiter Anduru Olero
Applicant
Washington Omuga Pesa
Respondent
Procedural Posture
Probate and Administration / Ruling on Summons for Revocation or Annulment of Grant
Legal Issues
- 1 Whether the objector, as a sister-in-law of the deceased, is entitled to inherit under the Law of Succession Act when the deceased left no spouse or children.
- 2 Whether the grant of letters of administration issued to the respondent should be revoked or annulled for alleged concealment of beneficiaries.
Ratio Decidendi
The court found that both parties agreed the deceased was not survived by a spouse or child, and that the estate would be governed by section 39 of the Law of Succession Act. Under this section, only certain relatives are entitled to inherit in a prescribed order of priority, which does not include a sister-in-law. The objector, being a sister-in-law, does not fall within any category entitled to inherit from the deceased. Therefore, her application for revocation or annulment of the grant was dismissed as she lacked legal standing to benefit from the estate. The respondent, as a recognized relative under the Act, was entitled to the grant.
Court Disposition
application dismissed with costs
Orders
- The summons for revocation or annulment of grant is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
PROBATE & ADMINSTRATION NO. 10 OF 2017
IN THE MATTER OF THE ESTATE OF:
CHARLES ODIEMBO ATITO (DECEASED)
BETWEEN
BRIGITER ANDURU OLERO..........................OBJECTOR/APPLICANT
AND
WASHINGTON OMUGA PESA.............PETITIONER/TRESPONDENT
RULING
1. Brigiter Anduru Olero, the objector/applicant herein moved the court by way of summons for revocation or annulment of grant dated 28th February, 2017 under section 76 of the Law of Succession Act and Rules 16(3), 44, 49, 59 and 63 of Probate and Administration Rules. She is seeking the following orders:
a) That the grant of letters of administration issued to Washington Omuga Pesa on 9th October, 2013 be revoked and/or annulled.
b) That this honourable court be pleased to order that the objector do take a separate cause in the administration of the estate of Charles Odiembo Atito.
c) That costs be in the cause.
2. The application is premised on the following grounds:
a) That the deceased was not survived by a spouse or a child.
b) That the deceased was survived by issues of his stepbrothers who include the objector who is his sister in-law and the respondent.
c) That the petitioner/respondent concealed from the court some of the beneficiaries.
3. The application was opposed on the following grounds that the objector is a sister in-law of the deceased herein and therefore not entitled to inherit.
4. Both parties agree as to the relationship of petitioner and that of the objector to the deceased. They also agree that the deceased was not survived by any spouse or child. His estate will therefore be governed by the provisions of section 39 of the Law of Succession Act. It provides as follows:
(1) Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority—
(a) father; or if dead
(b) mother; or if dead
(c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
d) half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none
(e) the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.
(2) Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.
5. Whereas the petitioner is recognized by the law, the objector does not fall under any category that can inherit from the deceased. Her summons for revocation is therefore dismissed with costs.
DELIVERED AND SIGNED AT HOMA BAY THIS 13TH DAY OF JULY, 2021
KIARIE WAWERU KIARIE
JUDGE