[2016] KEHC 726 (KLR)
The court found that the applicant, Rose Syombua Muthini, is the only surviving spouse of the deceased and is named as a beneficiary in the succession proceedings. The previous petitioner, Alice Syovata Muthini, is deceased and had been divorced from the deceased. Although not all beneficiaries were shown to have...
Source-derived case information.
- Citation
- [2016] KEHC 726 (KLR)
- Parties
- Applicant: Rose Syombua Muthini; Petitioner: Alice Syovata Muthini
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 124 of 2010
- Procedural Posture
- Succession Cause / Ruling on Summons for Substitution of Petitioner
- Outcome
- application allowed
- Judges
- DO Ogembo
- Legal Topics
- Succession, Administration of Estates, Substitution of Administrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Syombua Muthini
Applicant
Alice Syovata Muthini
Petitioner
Procedural Posture
Succession Cause / Ruling on Summons for Substitution of Petitioner
Legal Issues
- 1 Whether the applicant should be substituted as administratix of the estate in place of the deceased petitioner.
- 2 Whether all beneficiaries were properly served with the application for substitution.
Ratio Decidendi
The court found that the applicant, Rose Syombua Muthini, is the only surviving spouse of the deceased and is named as a beneficiary in the succession proceedings. The previous petitioner, Alice Syovata Muthini, is deceased and had been divorced from the deceased. Although not all beneficiaries were shown to have been served with the application for substitution, the application was unopposed. The court allowed the substitution to ensure the succession process continues, but directed that all beneficiaries must be personally served and attend the confirmation of grant proceedings to safeguard their interests.
Court Disposition
application allowed
Orders
- Rose Syombua Muthini is appointed as administratix of the estate in substitution of Alice Syovata Muthini.
- All beneficiaries must be personally served and attend the confirmation of grant proceedings.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 124 OF 2010
IN THE MATTER OF THE ESTATE OF JOSEPH MUTHINI KIBWAA – DECEASED
ALICE SYOVATA MUTHINI ………PETITIONER (NOW DECEASED)
AND
ROSE SYOMBUA MUTHINI …....………BENEFICIARY/APPLICANT
RULING OF THE COURT
1. The Summons for Substitution of Petitioner herein is dated 1st July, 2014. The Summons prays that the Applicant Rose Syombua Muthini be appointed as the Administratix of the estate hereof to substitute the Petitioner Alice Syovata Muthini, who has since passed on. The applicant’s case is that she is an adult female of sound mind hence competent to swear this affidavit, and that she was lawfully married to the deceased. The said marriage was under the Kamba Customary Law. The marriage was blessed with three (3) children namely; Josephine Nzilani Muthini, Robert Kibwaa Muthini and Nzilani Muthini. That the Petitioner in this cause, Alice Syovata Muthini, has since passed on and it is imperative that she be substituted. The applicant is the only surviving spouse of the deceased and therefore next in line to succeed his estate. In Form P&A, the applicant has been named as a beneficiary and wife, and it would be in the interest of justice to substitute the deceased with the applicant for purposes of carrying the Succession herein to completion. The Petitioner had already been divorced by the deceased and a Certificate of making Decree Nisi Absolute issued on 12th November, 1993.
2. The application and Notice of hearing of the same was served pursuant to the affidavit of service dated 9th June, 2016 and filed herein on 13th June, 2016. However, during the hearing of the application only the applicant and two other beneficiaries attended. I have noticed that there are many beneficiaries to the estate and the affidavit of service does not state that all of them were served. However, since the application is not opposed I allow the same as prayed. The applicant will however ensure that during the Confirmation of the Grant all the beneficiaries are personally served and do attend the confirmation proceedings.
Orders accordingly.
DATED AND DELIVERED AT MACHAKOS THIS15THDAY OF NOVEMBER, 2016.
E. OGOLA
JUDGE
In the presence of;
Mr. Mwongela holding brief for Ngolya for Applicant
Court Assistant – Mr. Munyao