[2022] KEHC 26934 (KLR)
The court held that, in the absence of a will and with living relatives, the law requires that a relative within the permitted degree of consanguinity should petition for grant of representation. The relationship between the deceased and the Catholic Reverend, while significant in the context of the deceased's...
Source-derived case information.
- Citation
- [2022] KEHC 26934 (KLR)
- Parties
- Applicant: Signora Nadia Bernardi; Respondent: Rt. Rev Alessandro Joseph
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause E007(A) of 2020
- Procedural Posture
- Succession Cause / Ruling on Application for Co Administration
- Outcome
- application granted
- Judges
- A Ali-Aroni
- Legal Topics
- Succession, Letters of Administration, Appointment of Administrator, Intestate Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Signora Nadia Bernardi
Applicant
Rt. Rev Alessandro Joseph
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Co Administration
Legal Issues
- 1 Whether a non-relative (Catholic Reverend) can petition for grant of representation where the deceased has relatives and died intestate.
- 2 Whether a niece of the deceased residing abroad can be joined as co-administrator without filing a fresh petition.
Ratio Decidendi
The court held that, in the absence of a will and with living relatives, the law requires that a relative within the permitted degree of consanguinity should petition for grant of representation. The relationship between the deceased and the Catholic Reverend, while significant in the context of the deceased's intentions, is not recognized in law for purposes of succession where relatives exist. However, considering the unique circumstances, including the applicant's residence abroad and the inefficacy of requiring a fresh petition, the court exercised its discretion under Article 159(2)(d) of the Constitution to avoid undue technicalities. The application to join Signora Nadia Bernardi...
Court Disposition
application granted
Orders
- Signora Nadia Bernardi and Rt. Rev Alessandro Joseph are appointed as administrators of the estate.
- A Grant of Letters of Administration to issue forthwith.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
FAMILY DIVISION
SUCCESSION CAUSE NO. E007(A) OF 2020
IN THE MATTER OF THE ESTATE OF IRMA FORNASERO (DECEASED)
RULING
1. The Father In-charge (Catholic Reverend) of the Order where the deceased served as a nun, petitioned the court for grant of representation, ostensibly because the deceased had made her intention of what should happen to a property where she build a house for old people and destitute persons.
2. The court directed that a relative of the deceased within the degree of consanguinity permitted in law ought to have been a petitioner. In the alternative and in the peculiar nature and circumstances of the matter such a person could be enjoined to the pleadings as the law does not recognize the relationship between the bishop and the deceased and especially in a situation where the deceased has relatives and did not leave behind a Will.
3. SIGNORA NADIA BERNARDImoved the court by way of summons on the 14th of December 2021 seeking to be joint as a co-administrator alongsideRT. REV ALESSANDRO JOSEPHthe initial petitioner. She described herself as the next of kin; a niece to the deceased who did not marry or have children in her lifetime.
4. The court notes that the ideal process should have been to file a fresh petition to allow the sureties and guarantors be notified of new changes. However devoid of technicalities noting thatSIGNORA NADIA BERNARDIresides in Italy and the back and forth in the matter as the initial petitioner is acting in person, this will not be efficacious. The court will as a result invoke Section 159 (2) (d) of the Constitution 2010 in order to move this matter forward.
The application therefore be and is hereby granted so thatSIGNORA NADIA BERNARDI & RT. REV ALESSANDRO JOSEPHare appointed as administrators herein.
A Grant of Letters of Administration do issue forthwith.
DELIVERED AND SIGNED AT GARISSA THIS 15TH DAY OF FEBRUARY, 2022
..........................
ALI-ARONI
JUDGE