[2017] KEHC 8008 (KLR)
The court found that the respondent was duly served with the citation but failed to respond by either taking out or refusing to take out letters of administration. In such circumstances, the Probate and Administration Rules empower the court to direct the citors to proceed with filing for representation. The court...
Source-derived case information.
- Citation
- [2017] KEHC 8008 (KLR)
- Parties
- Applicant: Kelvin Gitau Kariuki; Applicant: Mary Njoki Kariuki; Respondent: Anne Wambui Mwaura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1884 of 2015
- Procedural Posture
- Succession Cause / Ruling on Citation and Leave to Petition for Representation
- Outcome
- Citation allowed; applicants directed to file for representation.
- Judges
- DN Musyoka
- Legal Topics
- Probate and Administration, Citation Procedure, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kelvin Gitau Kariuki
Applicant
Mary Njoki Kariuki
Applicant
Anne Wambui Mwaura
Respondent
Procedural Posture
Succession Cause / Ruling on Citation and Leave to Petition for Representation
Legal Issues
- 1 Whether the applicants are entitled to file for representation to the estate of the deceased after serving a citation on the respondent.
- 2 Whether the respondent's failure to respond to the citation entitles the applicants to proceed with the petition for letters of administration.
Ratio Decidendi
The court found that the respondent was duly served with the citation but failed to respond by either taking out or refusing to take out letters of administration. In such circumstances, the Probate and Administration Rules empower the court to direct the citors to proceed with filing for representation. The court held that the filing of a chamber summons for leave was unnecessary, as the rules provide a clear procedure for dealing with unresponsive citees. The applicants are therefore entitled to file for representation to the estate of the deceased, but must do so at the judicial station within whose jurisdiction the deceased owned property.
Court Disposition
Citation allowed; applicants directed to file for representation.
Orders
- The citors are directed to file for representation to the estate of the deceased.
- The cause shall be filed only at the judicial station within whose jurisdiction the deceased owned property.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1884 OF 2015
IN THE MATTER OF THE ESTATE OF JAMES KARIUKI GITAU (DECEASED)
RULING
1. The deceased herein died on 16th May 2013. On 11th August 2015, a citation issued to Anne Wambui Mwaura at the instance of Kelvin Gitau Kariuki and Mary Njoki Kariuki, requiring her to take or refuse to take out representation to the estate of the deceased. In the affidavit drawn in support of the proposed citation, the citors state that they were son and widow of the deceased, while the citee was a woman who lived with the deceased prior to his death. They state that the citee had not taken out letters and the citors were accordingly desirous of taking them out. Filed simultaneously with the affidavit is a letter from the Chief of Kikuyu Location, which identifies the citee as a widow and the male citor as a son of the deceased.
2. There is an affidavit of service on record indicating that the said citation was served on the citee. There is nothing on record to indicate whether or not she did appear. It would appear that her non-appearance prompted the citors to file the chamber summons seeking leave to file a petition.
3. The filing of the summons was needless. Citations are provided for under Part VI (Rules 21 to 24) of the Probate and Administration Rules. Upon citations issuing and being served, all what is required of the parties is to have the matter placed before a Judge for directions on who ought to petition for representation.
4. In this case, the citee was served with the citation. She has not responded to it, by either taking out the letters or refusing to. In view of that there is no option but for this court to direct the citors herein to accordingly file for representation to the estate of the deceased. The cause shall be filed only at the judicial station within whose jurisdiction the deceased owned property.
DATED, SIGNED and DELIVERED at NAIROBI this 3RD DAY OF FEBRUARY, 2017.
W. MUSYOKA
JUDGE