[2019] KEHC 7100 (KLR)
The court found that the administrator had failed to complete the administration of the estate within the statutory period and had not sought an extension of time. However, the court determined that immediate revocation or substitution of the administrator would further delay the matter, given the time already...
Source-derived case information.
- Citation
- [2019] KEHC 7100 (KLR)
- Parties
- Applicant: Connie Adhiambo Odula; Applicant: Caroline Apiyo Odula; Applicant: Gaudentia Atieno Odula; Respondent: Vincent Ogutu Odula
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 430 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Substitution of Administrator
- Outcome
- application dismissed with directions
- Judges
- TW Cherere
- Legal Topics
- Administration of Estates, Revocation of Grant, Duties of Administrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Connie Adhiambo Odula
Applicant
Caroline Apiyo Odula
Applicant
Gaudentia Atieno Odula
Applicant
Vincent Ogutu Odula
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Substitution of Administrator
Legal Issues
- 1 Whether the administrator has failed to complete the administration of the estate within the statutory period.
- 2 Whether the administrator should be substituted due to alleged mismanagement and failure to distribute the estate.
- 3 Whether the court should revoke or annul the grant of representation for non-compliance with statutory duties.
Ratio Decidendi
The court found that the administrator had failed to complete the administration of the estate within the statutory period and had not sought an extension of time. However, the court determined that immediate revocation or substitution of the administrator would further delay the matter, given the time already elapsed since confirmation of the grant. Instead, the court exercised its discretion to grant the administrator a final opportunity to complete the administration within 60 days, warning that failure to comply would result in revocation or annulment of the grant. The court also ordered the administrator to pay the costs of the application.
Court Disposition
application dismissed with directions
Orders
- The administrator/respondent is granted 60 days to complete the administration of the deceased's estate in terms of the Certificate of Confirmation of Grant dated 6th December, 2016.
- The administrator/respondent is put on notice that the court will revoke or annul the grant if the above order is not complied with.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM: CHERERE-J)
SUCCESSION CAUSE NO. 430 OF 2011
IN THE MATTER OF THE ESTATE OF JOHN JOSEPH OOKO ODULA (DECEASED)
BETWEEN
CONNIE ADHIAMBO ODULA............................................1ST APPLICANT
CAROLINE APIYO ODULA...............................................2ND APPLICANT
GAUDENTIA ATIENO ODULA.........................................3RD APPLICANT
AND
VINCENT OGUTU ODULA................ADMINISTRATOR/ RESPONDENT
RULING
Background
1. VINCENT OGUTU ODULA (hereinafter referred to as Administrator/ Respondent)was appointed the administrator of the deceased’s estate on 29th June 2015.
2. A Certificate of Confirmation of Grant identifying respective shares for the beneficiaries including the Applicants herein was issued on 6th December, 2016.
Application
3. The applicants have by Notice of Motion dated 23rd January, 2019 moved the court seeking orders that the Administrator/Respondent be substituted with the 1st Applicant.
4. The application is based on grounds among others that the Administrator/Respondent has mismanaged the estate, leased portions of the estate, denied the Applicants access to their rightful shares and failed to distribute the estate.
5. The application is also supported by an affidavit sworn on 23rd January, 2019 by the Applicants in which they reiterate the grounds on the face of the application.
6. The Administrator/Respondent though served did not oppose the application or attend court when it came up for hearing on 6th May, 2019.
Analysis and Determination
7. I have considered the application in the light of the supporting affidavit and the applicable law.
8. Section82of Law of Succession Act(hereinafter referred to as the Act) provides the duties of the Personal representatives which include TO:
(g) within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration.(Emphasis added).
9. I have perused the court record and there is no order extending the period for completion of the administration of the estate hereof beyond 6 months and the Administrator/Respondent is no doubt in breach of clear provisions of the law.
10. Section76of the Act provides as that:
“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-
(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—
(ii) to proceed diligently with the administration of the estate.
11. The foregoing section gives this court powers to revoke or annul a grant such as the one in this case and to substitute the administrator on account of the administrator’s failure to complete the administration.
12. The foregoing notwithstanding, the court takes the view that to revoke or annul the grant and to substitute the administrator might the effect of further delaying this cause whose grant was confirmed close to 3 years ago.
Disposition
13. From the foregoing, this court declines to allow the Notice of Motion dated 23rd January, 2019 and in its place orders that:
1. TheAdministrator/Respondent is hereby granted 60 days to complete the administration of the deceased’s estate in terms of the Certificate of Confirmation of Grant dated 6th December, 2016.
2. TheAdministrator/Respondent is hereby put on notice that the court will not hesitate torevoke or annul the grant in the event that order (1) above is not complied with
3. Summons to issue to the Administrator/respondent for mention on …29th July, 2019….to confirm compliance
4. The DR of this court is directed to ensure that this order and the summons are served on theAdministrator/Respondent through the Chief God-Nyathindo Location and that an affidavit of service to that effect is filed
5. The Administrator/Respondent shall pay the costs of this application
DELIVERED AND SIGNED IN KISUMU THIS 9THDAY OF MAY2019
T. W. CHERERE
JUDGE
In the presence of:
Court Assistant- Felix
Applicants- Present in person
Respondent - Absent