[2023] KEHC 20616 (KLR)
The court found that both the summons for confirmation of grant and the protest were fundamentally defective for failing to disclose the identities and relationships of the beneficiaries and the composition of the deceased's houses. The law requires that all children and other survivors of the deceased be named and...
Source-derived case information.
- Citation
- [2023] KEHC 20616 (KLR)
- Parties
- Applicant: Administrators of the Estate of Jacob Wambia Walekhwa; Respondent: Protestor (undisclosed)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 850 of 2007
- Procedural Posture
- Succession Cause / Ruling on Summons for Confirmation of Grant and Protest
- Outcome
- Application and protest struck out for non-compliance with statutory requirements.
- Judges
- WM Musyoka
- Legal Topics
- Intestate Succession, Confirmation of Grant, Disclosure of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Administrators of the Estate of Jacob Wambia Walekhwa
Applicant
Protestor (undisclosed)
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Confirmation of Grant and Protest
Legal Issues
- 1 Whether the summons for confirmation of grant and the protest comply with statutory requirements for disclosure of beneficiaries in intestate succession.
- 2 Whether the court can proceed to distribute the estate in the absence of full disclosure of the deceased's survivors.
Ratio Decidendi
The court found that both the summons for confirmation of grant and the protest were fundamentally defective for failing to disclose the identities and relationships of the beneficiaries and the composition of the deceased's houses. The law requires that all children and other survivors of the deceased be named and their relationships disclosed to enable proper distribution. The failure to comply with these mandatory statutory requirements rendered the applications inadequate and incapable of being cured by further affidavits. Consequently, the court struck out both the application and the protest, directing the administrators to file a proper summons with full disclosure as required by law.
Court Disposition
Application and protest struck out for non-compliance with statutory requirements.
Orders
- The summons for confirmation of grant dated June 15, 2021, and the protest dated October 21, 2021, are struck out.
- Administrators to file a proper summons for confirmation of grant disclosing all children and survivors of the deceased, including details of any deceased children and their survivors.
Full Case Text
Judgment text and source record
14 paragraphs
In re Estate of Jacob Wambia Walekhwa (Deceased) (Succession Cause 850 of 2007) [2023] KEHC 20616 (KLR) (21 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20616 (KLR)
Republic of Kenya
In the High Court at Kakamega
Succession Cause 850 of 2007
WM Musyoka, J
July 21, 2023
Ruling
1. I am tasked with determining a summons for confirmation of grant, dated June 15, 2021. In the affidavit in support of the application, the 2 administrators are disclosed, and thereafter distribution is proposed between 3 individuals. It is not indicated how these 3 are related to the deceased.
2. There is a protest filed to that application. It proposes that the estate be distributed between the 3 houses of the deceased, without disclosing how the 3 houses were composed.
3. The applicants and the protestor, or their legal advisers, are, no doubt, not serious. Distribution in intestacy is to individuals who are related to the deceased in one way or the other. Those individuals must be named in the application, and how they relate to the deceased disclosed. Where the deceased was a polygamist, the individuals who make up the houses should be grouped according to the houses, and how they were related to the deceased disclosed.
4. The application, dated June 15, 2021, and the protest to it, dated October 21, 2021, are inadequate, to assist the court make a decision on distribution, for they make no disclosure of the children and other survivors of the deceased, as required by the proviso to section 71(2) of the Law of Succession Act and rule 40(4)(6)(8) of theProbate and Administration Rules. The application cannot even be cured by the filing of further affidavits.
5. I have no option, but to strike it out. Let the administrators file a proper summons for confirmation of grant, where they disclose each and every child of the deceased in each house, and disclose any dead children, giving details of any child or children who survive them. I shall allocate a date for compliance.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 21ST DAY OF JULY 2023WM MUSYOKAJUDGE