[2015] KEHC 2430 (KLR)
The court held that the Citor, Joseph Ooko Bonyo, was not entitled to seek a citation to accept or refuse letters of administration because he was not a kin of the deceased and thus not a person entitled to a grant under Rule 22(1) of the Probate and Administration Rules. His reliance on a limited grant ad litem was...
Source-derived case information.
- Citation
- [2015] KEHC 2430 (KLR)
- Parties
- Applicant: Joseph Ooko Bonyo; Respondent: Cynthia Juma; Respondent: Godwin Juma; Respondent: Allan Juma; Respondent: Linda Juma
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 747 of 2014
- Procedural Posture
- Succession Cause / Ruling on Citation to Accept or Refuse Letters of Administration
- Outcome
- citation dismissed
- Judges
- EM Muchoki
- Legal Topics
- Probate and Administration, Letters of Administration, Citation Procedure, Entitlement to Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ooko Bonyo
Applicant
Cynthia Juma
Respondent
Godwin Juma
Respondent
Allan Juma
Respondent
Linda Juma
Respondent
Procedural Posture
Succession Cause / Ruling on Citation to Accept or Refuse Letters of Administration
Legal Issues
- 1 Whether the Citor is entitled to seek a citation to accept or refuse letters of administration in respect of the deceased's estate.
- 2 Whether the Citor's reliance on a limited grant ad litem is proper for the purpose of seeking a citation.
- 3 Whether proper service of the citation was effected as required by the Probate and Administration Rules.
Ratio Decidendi
The court held that the Citor, Joseph Ooko Bonyo, was not entitled to seek a citation to accept or refuse letters of administration because he was not a kin of the deceased and thus not a person entitled to a grant under Rule 22(1) of the Probate and Administration Rules. His reliance on a limited grant ad litem was also improper, as such grants are limited to filing or defending suits and do not extend to seeking citations for letters of administration. Furthermore, even if the Citor had been properly constituted, the application would have failed for want of proper service as required by Rule 21(3) of the Probate and Administration Rules. The court therefore dismissed the citation...
Court Disposition
citation dismissed
Orders
- The citation to accept or refuse letters of administration intestate is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
SUCCESSION CAUSE NO. 747 OF 2014
IN THE MATTER OF THE ESTATE OF DANIEL OKUMU JUMA
AND
IN THE MATTER OF (CITED) CYNTHIA JUMA, GODWIN JUMA, ALLAN JUMA
AND LINDA JUMA
CITATION TO ACCEPT OR REFUSE LETTERS OF ADMINISTRATION
INTESTATE
RULING
On 11th August 2014 Joseph Ooko Bonyo, the Citor, took out a citation to accept or refuse letters of administration intestate against Cynthia Juma, Godwin Juma, Allan Juma and Linda Juma who he described as the survivors of Daniel Okumu Juma, the deceased, who he alleged had sold a piece of land to his mother Roslin Adoyo Aroko, also deceased, but who have now refused to transfer the land to him and his siblings. He relied on a limited grant ad litem issued to him by this Court on 9th June 2014 and the alleged sale agreement between his deceased mother and Daniel Okumu Juma. An affidavit of service sworn by Nadebu P. Caleb, process server, on 18th September 2014 indicates that the summons was served upon Godwin Juma on 18th September 2014 and that he accepted service on behalf of the other Citees. However none of them entered appearance.
Citation to accept or refuse or to take a grant is provided for under rule 22(1) of the Probate and Administration Rules which states as follows:-
''A citation may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.''
This rule presupposes that the Citor is a person who would himself be entitled to a grant. The question then is whether the Citor here is such a person. He has founded his application on a sale agreement between the deceased and his mother meaning that he is not a kin of the deceased. In other words he has no relationship with the deceased that would otherwise entitle him to the letters of administration in respect of the estate of the deceased. The sale agreement would of course be subject to proof. More importantly however is that he relies on a limited grant to ''represent his mother's estate in this matter.'' That in my view is irregular. Such limited grants are issued by the Court under rule 14 of the Fifth Schedule. Such a grant is limited to either defending or filing suits and indeed the grant issued to him was limited for purposes of filing suit. In my view these proceedings are not a suit as envisaged in rule 14 of the Fifth Schedule. Granted that under rule 16 of the Fifth Schedule the Court has power to appoint a person not normally entitled to a grant to administer an estate or any part thereof, I regret that that is not the application before me.
Even had the Citor been properly constituted to represent the estate of his deceased mother in this matter his application would not have succeeded for want of proper service as is required under Rule 21(3) of the Probate and Administration Rules. The same is dismissed. No order for costs as there was no appearance.
Signed, dated and delivered at Kisumu this 24th day of August 2015
E. N. MAINA
JUDGE
In the presence of:-
Mr. Kouko for Ngala for the Citor
N/A for the Citees
CC: Moses Okumu