[2017] KEHC 18 (KLR)
The court found that the citees, having been duly served with the citation and having failed to enter appearance or take steps to apply for letters of administration, forfeited their priority to apply for the grant. Under Rule 22(5) of the Probate and Administration Rules, the citor is entitled to petition the court...
Source-derived case information.
- Citation
- [2017] KEHC 18 (KLR)
- Parties
- Applicant: Jamin Mulama Murunga; Respondent: Hilda Indoshi Amutabi; Respondent: Odrine Khaombi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Citation Cause 31 of 2016
- Procedural Posture
- Citation Application / Ruling on Unopposed Citation
- Outcome
- leave granted to citor to petition for grant of letters of administration
- Judges
- CM Njagi
- Legal Topics
- Probate and Administration, Grant of Letters of Administration, Citation Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jamin Mulama Murunga
Applicant
Hilda Indoshi Amutabi
Respondent
Odrine Khaombi
Respondent
Procedural Posture
Citation Application / Ruling on Unopposed Citation
Legal Issues
- 1 Whether the citees have failed to take out letters of administration for the estate of the deceased as required by law.
- 2 Whether the citor should be granted leave to petition for letters of administration in the absence of action by the citees.
Ratio Decidendi
The court found that the citees, having been duly served with the citation and having failed to enter appearance or take steps to apply for letters of administration, forfeited their priority to apply for the grant. Under Rule 22(5) of the Probate and Administration Rules, the citor is entitled to petition the court for the grant of letters of administration in such circumstances. The court therefore granted the citor leave to petition for the grant in respect of the estate of the deceased.
Court Disposition
leave granted to citor to petition for grant of letters of administration
Orders
- The citor is granted leave to petition the court for grant of letters of administration in respect to the estate of the late Dan Malenya Amutabi.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
IN THE MATTER OF THE ESTATE OF THE LATE DAN MALENYA AMUTABI - DECEASED
CITATION NO.31 OF 2016
JAMIN MULAMA MURUNGA...................................................................... CITOR
VERSUS
HILDA INDOSHI AMUTABI .....................................................................1ST CITEE
ODRINE KHAOMBI .................................................................................2ND CITEE
RULING
1. The citor herein has cited Hilda Indoshi Amutabi and Odrine Khaombi, being the sister and wife of the late Dan Malenya Amutabi (the deceased), requiring them to cause an appearance to be entered and accept or refuse letters of administration of the estate which by law devolves to and vests in the personal representative of the deceased or show cause why the same should not be granted to the citor herein.
The citees were served with the citation but they did not respond. An affidavit of service was filed with the court to prove service.
2. The grounds in support of the citation are that the citor is a dependant of the estate of the late Dan Malenya and is one of the persons entitled to share in his estate comprising of Land Parcel No.Kakamega/Shiswa/75. That when the deceased died there was a civil case No.97 of 2016 pending between him and the citor over the above said parcel of land. That the citees have refused/declined to take letters of administration of the estate of the late Dan Malenya so that the pending Civil Case can proceed. The citor is seeking that the citees do show cause why they have not taken out letters of administration on the estate of Dan Malenya or why the same should not be issued out to him (citor).
3. Though the rule under which the citation is made is not stated, the citation has been made under the provisions of Rule 22 of the Probate and Administration Rules. Rule 22(5) reads as follows:-
“If the time limited for appearance has expired and the person cited has not entered appearance in either the principal registry or the Mombasa registry, the citor may –
(a) in the case of a citation under sub-rule (1), petition the court (if he has not already done so) for the grant to himself.
(b) …………..
(c) …………..
4. The citees were served with the citation and have not entered appearance. In face of failure by the citees to enter appearance in the matter, the citor is hereby given leave to petition the court for grant of letters of administration in respect to the estate of the deceased herein.
Delivered, dated and signed at Kakamega this 5th day of April, 2017.
J. NJAGI
JUDGE