[2017] KEHC 960 (KLR)
The court found that LR No. 12146/5 Karen, Nairobi, was not covered by the will of the deceased and therefore could not be administered in the present succession cause. The executrix had no authority under the will, grant of probate, or certificate of confirmation of grant to subdivide and transfer the property to...
Source-derived case information.
- Citation
- [2017] KEHC 960 (KLR)
- Parties
- Applicant: Peter Siro Nyariki Angwenyi; Respondent: Executrix (widow of the deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 580 of 1991
- Procedural Posture
- Succession Cause / Ruling on Application to Challenge Executrix's Actions Regarding Property Not Covered by Will
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Testate Succession, Intestate Succession, Administration of Estates, Powers of Executors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Siro Nyariki Angwenyi
Applicant
Executrix (widow of the deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Challenge Executrix's Actions Regarding Property Not Covered by Will
Legal Issues
- 1 Whether the executrix had authority to subdivide and transfer LR No. 12146/5 Karen, Nairobi, to herself.
- 2 Whether the property in question could be administered under the will or only through intestacy.
- 3 Whether the court has jurisdiction to make orders regarding property not covered by the will in this cause.
Ratio Decidendi
The court found that LR No. 12146/5 Karen, Nairobi, was not covered by the will of the deceased and therefore could not be administered in the present succession cause. The executrix had no authority under the will, grant of probate, or certificate of confirmation of grant to subdivide and transfer the property to herself. As the property was not before the court in this cause, the court lacked jurisdiction to make any orders regarding it. Consequently, the application challenging the executrix's actions was misconceived and without merit, leading to its dismissal with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 29th January 2016 is dismissed with costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 580 OF 1991
IN THE MATTER OF THE ESTATE OF CHARLES PETER ANGWENYI (DECEASED)
RULING
1. On 8th November 2013, I delivered a ruling wherein I declined to allow the executrix of the estate of the deceased to add a property described as LR No. 12146/5 Karen, Nairobi, to the will of the deceased, ostensibly to facilitate its administration in this cause. I held that the will as framed was incapable of dealing with property acquired after it was made, and directed the widow to seek its administration in intestacy.
2. Peter Siro Nyariki Angwenyi, a child of the deceased, has come to court by an application dated 29th January 2016, complaining that the executrix has caused LR No. 12146/5 Karen, Nairobi to be subdivided and the subdivisions transferred to her name. He argues that the said actions of the executrix are contrary to my ruling of 8th November 2013. He has attached to his affidavit a copy of the certificate of title in respect of the said property and the ruling of 8th November 2013.
3. There is nothing in the documents attached which show the authority under which the executrix caused the property to be subdivided and transferred to her. It is not alleged that she used the will or the grant of probate on record or the certificate of confirmation of grant herein to cause the said subdivision and transfer. It has not been alleged that she acted with the authority granted to her under the process issued to her in this cause.
4. I did on 8th November 2013 hold that the said property was not covered under the will of the deceased, and therefore it could not be administered through this cause, and it could only be administered in an intestate cause. The said asset is therefore not before this court. The court has no locus to make any orders relating to it in the cause.
5. The short of it is that the application dated 29th January 2016 is wholly misconceived and devoid of merit. I shall accordingly dismiss it with costs.
DATED, SIGNED and DELIVERED at NAIROBI this 8TH DAY OF DECEMBER, 2017.
W. MUSYOKA
JUDGE