[2008] KEHC 529 (KLR)
The court found that the applicants failed to provide proof that they were dependants of the deceased. Since their mother, who would have been a direct beneficiary, predeceased the deceased, the applicants could not claim that their mother survived Esther. The court held that Stephen, as the only surviving child,...
Source-derived case information.
- Citation
- [2008] KEHC 529 (KLR)
- Parties
- Applicant: Sammy Muthee; Applicant: Ann Wanjiru; Respondent: Stephen Ng’ang’a Muthee
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 1615 of 2004
- Procedural Posture
- Succession Cause / Ruling on Objection to Grant of Letters of Administration
- Outcome
- application dismissed with costs
- Judges
- JW Gacheche
- Legal Topics
- Succession, Letters of Administration, Priority of Grant, Dependants, Intestate Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Muthee
Applicant
Ann Wanjiru
Applicant
Stephen Ng’ang’a Muthee
Respondent
Procedural Posture
Succession Cause / Ruling on Objection to Grant of Letters of Administration
Legal Issues
- 1 Whether the applicants were dependants or beneficiaries entitled to a share of the deceased's estate.
- 2 Whether the respondent committed fraud in the petition for letters of administration.
- 3 Who had priority to obtain letters of administration for the deceased's estate.
Ratio Decidendi
The court found that the applicants failed to provide proof that they were dependants of the deceased. Since their mother, who would have been a direct beneficiary, predeceased the deceased, the applicants could not claim that their mother survived Esther. The court held that Stephen, as the only surviving child, had priority to obtain letters of administration under section 29(a) of the Succession Act. The allegations of fraud were dismissed as unfounded in the circumstances. The objection was therefore without merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The objection to the making of the grant to Stephen Ng’ang’a Muthee is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Succession Cause 1615 of 2004
IN THE MATTER OF THE ESTATE OF ESTHER NJOKI NG’ANG’A (DECEASED)
AND
IN THE MATTER OF
SAMMY MUTHEE )
ANN WANJIRU )……..........……….….. OBJECTORS/APPLICANTS
versus
STEPHEN NG’ANG’A MUTHEE ….…. PETITIONER/RESPONDENT
RULING
Esther Njoki Ng’ang’a (‘Esther’)died on 14th May, 2003 at the age of 60 years. I shall now refer to her as ‘the deceased’. Her daughterNancy Wanjiru Muthee(‘Nancy’) had predeceased her and she was survived by only one son namely Stephen Ng’ang’a Muthee(‘Stephen’).
On 2/6/2004, one Sammy Muthee (‘Sammy’) who claimed to be a grandson of the deceased and thus Stephen’s nephew issued a citation to Stephen. He did so in his capacity as a beneficiary of Esther’s estate. Stephen was by virtue of the citation required to “accept or refuse letters of administration of all the estate which by law devolves to and rests in the personal representatives of the deceased and to show why the same should not be granted to Sammy Muthee”. He was thereby notified that “in default, the Court may grant Letters of Administration of the said estate to the said Sammy Muthee”. The notice would expire on the 15th day of service. He was served on 7/6/2004.
Stephen entered appearance through the firm of B.A. Ouma and Advocates, on 21/6/2004.
On 6/10/2005 Sammy and his sister Anne Wanjiku(‘Anne’)proceeded to petition for Letters of Administration of the Estate of their grandmother who died Intestate in which they named their siblings Catherine Njoki and Rose Waithiga as the other beneficiaries.
Stephen then lodged his petition on 10/1/2006 and a gazette notice was issued in his favour on 24/2/2006 vide Notice No. 1265.
Being aggrieved by the turn of event, Sammy Muthee and his sister Anne Wanjiku have now raised an objection to the making of the grant to Stephen on the grounds that though they were beneficiaries of the deceased, they were not catered for. They also allege fraud on Stephen’s part. Sammy has deposed to the effect that they had agreed on the mode of distribution of the estate of the deceased, which agreement Stephen had reneged.
The two who I shall now refer to as the applicants, have failed to provide proof that they were dependants of the deceased, needless to say having predeceased Esther the applicants can not claim that their mother survived Esther.
Furthermore being the only surviving child of Esther Stephen had priority to obtain letters to administer his mother’s estate, as provided for in section 29 (a) of the Succession Act, and in the circumstances, the issue of fraud cannot lie.
This application lacks in merit. I dismiss it with costs.
Dated and delivered at Nairobi this 15th day of October 2008.
JEANNE GACHECHE
Judge
Delivered in the presence of: