[2010] KEHC 1538 (KLR)
The court held that the applicant, Rose Achieng Asembo, is entitled to be appointed as an administrator in place of the deceased administratrix, Phelia Asembo, since there is no legal bar to such substitution under the Law of Succession Act. The court noted that the maximum number of administrators is four, and with...
Source-derived case information.
- Citation
- [2010] KEHC 1538 (KLR)
- Parties
- Applicant: Rose Achieng Asembo; Respondent: James Otieno Asembo; Respondent: Robert Calvin Asembo; Respondent: Maxwell Asembo
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 115 of 2005
- Procedural Posture
- Probate and Administration / Ruling on Application for Substitution of Deceased Administrator (de Bonis Non)
- Outcome
- Application granted; applicant appointed as administrator in place of deceased administratrix.
- Legal Topics
- Succession, Administration of Estates, De Bonis Non Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Achieng Asembo
Applicant
James Otieno Asembo
Respondent
Robert Calvin Asembo
Respondent
Maxwell Asembo
Respondent
Procedural Posture
Probate and Administration / Ruling on Application for Substitution of Deceased Administrator (de Bonis Non)
Legal Issues
- 1 Whether the applicant can be substituted as administrator in place of the deceased administratrix under the law of succession.
- 2 Whether the law permits appointment of a new administrator when one of the original administrators dies and others remain.
- 3 Whether the requirements of Section 58 of the Law of Succession Act regarding the number of administrators are met.
Ratio Decidendi
The court held that the applicant, Rose Achieng Asembo, is entitled to be appointed as an administrator in place of the deceased administratrix, Phelia Asembo, since there is no legal bar to such substitution under the Law of Succession Act. The court noted that the maximum number of administrators is four, and with the substitution, this limit is not exceeded. The court further observed that all beneficiaries are adults, so the statutory requirement for two administrators in cases involving minors does not apply. The application for substitution (de bonis non) was therefore granted, following the precedent set in the Estate of Cheruiyot Arap Keter case.
Court Disposition
Application granted; applicant appointed as administrator in place of deceased administratrix.
Orders
- A new grant of letters of administration intestate to issue with the four administrators as allowed by the court.
- Costs to be in the estate.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Probate & Administration 115 of 2005
IN THE MATTER OF THE ESTATE OF JASON RICHARD ASEMBO OKINDA
R U L I N G
De Bonisnon
1. Background
(1)On the 10th November 1999 thelate
Jason Richard Osembo Okinda (deceased) died in a road traffic accident aged, 75 years old; at the Pacific Hospital.
(2)His estate was taken up by four administrators:
(i)James Otieno Asembo
(ii)Robert Calvin Asembo
(iii)Phelia Asembo (Administratrix) and
(iv)Maxwell Asembo.
(3)The deceased died intestate
(4)Temporary letters of grant was issued on the 4th October2005 Gacheche J and confirmed on the 8th June 2007 Ibrahim J
(5)The Administrators return to this
Court to State that one of the administratrix Phelecia Asembo related to the deceased as the widow has also since passed away.They bring an appeal De Bonis non.
(5) (a)They act in person in this Matter
II.Application De Bonis non
(6)The Applicant RoseAchieng Asembo,
brings an application of 13th July 2010 (an earlier one having been withdrawn) seeking orders that she takes the place of the deceased administratrix instead of and to be named an administrator.
(7)She mentions the assets of the
deceased and liabilities left.
III.Opinion
(8)The maximum number of
administrators or executors to a grant is four.
(9)Where one administrator passes away
and some remain, then those who remain can continue with administrating the grant. Where there is only one administrator then an application “De Bonis non” must be made.
(10)It isfurthernoted where there are
minors there must be two
administrators under Section 58 of the
Law of Succession.
(11)In this matter all the survivors to the
deceased’s estate are adults.
(12)The Applicant wishes to be an
adminstratrix to take the place of the deceased administratrix.There is nothing in the law preventing her from doing so.
(13)I therefore follow my decision in the
matter of the case of the Estate of Cheruiyot Arap Keter HCC. Succ. Cause 200/2006 at Kericho where an application de Bonis non was granted.
(14)Thisapplication is accordingly
granted with costs being in the estate.
(15)Ordera new grant to issue intestate
With the four administrators /administrator as duly allowed by this Court.
DATED THIS 14TH DAY OF JULY 2010 AT ELDORET.
M.A. ANG’AWA
JUDGE
Advocate:-Nil
Applicant in person