[2011] KEHC 3144 (KLR)
The court found that since the application for stay of execution of the judgment dated 15th May 2007 had been dismissed, there was no legal basis to delay the distribution of the estate. The administrator, Rael Naito Ringera, by failing to act on the confirmed grant and effect the distribution as ordered,...
Source-derived case information.
- Citation
- [2011] KEHC 3144 (KLR)
- Parties
- Applicant: Rael Naito Ringera; Respondent: Alice Njiru Mucheke; Respondent: Martin Mwiti Francis; Respondent: Joshua Muthuri Francis
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 263 of 1995
- Procedural Posture
- Succession Cause / Ruling on Application to Empower Executive Officer to Effect Judgment and Revoke Grant
- Outcome
- Grant revoked and reissued; immediate confirmation ordered; no order as to costs.
- Judges
- MM Kasango
- Legal Topics
- Revocation of Grant, Administration of Estate, Failure to Execute Confirmed Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rael Naito Ringera
Applicant
Alice Njiru Mucheke
Respondent
Martin Mwiti Francis
Respondent
Joshua Muthuri Francis
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Empower Executive Officer to Effect Judgment and Revoke Grant
Legal Issues
- 1 Whether the administrator can be removed for failing to execute a confirmed grant.
- 2 Whether the court should empower the executive officer to effect the judgment of distribution despite a pending appeal and no stay.
Ratio Decidendi
The court found that since the application for stay of execution of the judgment dated 15th May 2007 had been dismissed, there was no legal basis to delay the distribution of the estate. The administrator, Rael Naito Ringera, by failing to act on the confirmed grant and effect the distribution as ordered, effectively granted a de facto stay contrary to the court's ruling. This failure justified the revocation of her grant. The court therefore revoked the grant issued to Rael Naito Ringera, issued a fresh grant to Alice Njiru Mucheke, and ordered immediate confirmation of the grant as per the judgment. The court emphasized that the existence of a pending appeal does not, in itself, prevent...
Court Disposition
Grant revoked and reissued; immediate confirmation ordered; no order as to costs.
Orders
- The grant issued to Rael Naito Ringera is revoked.
- A fresh grant is issued to Alice Njiru Mucheke.
Full Case Text
Judgment text and source record
19 paragraphs
SUCCESION
·An administrator will be removed from administration of estate where he fail to execute a confirmed grant.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCCESSION CAUSE NO. 263 OF 1995
IN THE MATTER OF THE ESTATE OF THE LATE FRANCIS M’MARETE RUGARU (DECEASED)
RAEL NAITO RINGERA ………………………….. PETITIONER
VERSUS
ALICE NJIRU MUCHEKE ………………………… OBJECTOR
RULING
By the judgment of this court dated 15th May 2007 the court determined the distribution of this estate. There is a notice of appeal filed against that judgment filed by Martin Mwiti Francis and Joshua Muthuri Francis. They seek to appeal against the whole of that judgment. By an application dated 30th May 2007 Martin Mwiti sought stay of the judgment dated 15th May 2007 pending appeal. By a ruling dated 25th July 2008 this court dismissed that application for stay of that judgment. Despite that dismissal, the administrator Rael Naito Ringera has not taken any action to effect distribution of this estate as per the judgment dated 15th May 2007. By her very action she has accorded Martin Mwiti the stay that the court rejected. An application dated 13th January 2009 by Chamber Summons has been filed by Alice Njiru seeking that this court do empower the executive officer to sign documents of transfer to put to effect that judgment. It is that application which is under consideration in this ruling. Alice in her affidavit in support of the application deponed that Rael was granted letters of administration on 13th May 1997. That despite the judgment dated 15th May 2007 Rael has failed to transfer the properties as per that judgment. The application was opposed by Martin Mwiti by his replying affidavit sworn on 1st April 2009. The essence of that replying affidavit is that the distribution should await the pending appeal. This court having dismissed the application for stay of execution of the judgment dated 15th May 2007 there is no basis for not to distribute the estate as per that judgment. That is my finding and I accordingly grant the following orders:-
1. The grant issued to Rael Naito Ringera herein is revoked.
2. A fresh grant is hereby issued to Alice Njiru Mucheke.
3. The said grant to Alice Njiru Mucheke shall be confirmed immediately as per this court’s judgment dated 15th May 2007.
4. There shall be no orders as to costs in respect of the Chamber Summons dated 13th January 2009.
Dated, signed and delivered at Meru this 13th day of April 2011.
MARY KASANGO
JUDGE