[2023] KEHC 19034 (KLR)
The court found that the death of the sole administrator, Samson Otieno Onyango, rendered the grant useless and inoperative, necessitating its revocation under section 76 of the Law of Succession Act. Although the applicant did not initially provide evidence of death, the respondent's affidavit and the attached...
Source-derived case information.
- Citation
- [2023] KEHC 19034 (KLR)
- Parties
- Applicant: David Ouma Otieno; Respondent: Samson Otieno Onyango; Respondent: Samuel Kepher Owuor
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 249 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation and Substitution of Administrator
- Outcome
- Application for revocation of grant allowed; new administrator appointed.
- Judges
- WM Musyoka
- Legal Topics
- Succession, Revocation of Grant, Administrator Death, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Ouma Otieno
Applicant
Samson Otieno Onyango
Respondent
Samuel Kepher Owuor
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation and Substitution of Administrator
Legal Issues
- 1 Whether the death of a sole administrator renders a grant useless and inoperative, warranting revocation under section 76 of the Law of Succession Act.
- 2 Whether sufficient evidence of the administrator's death was provided to justify revocation of the grant.
- 3 Whether a new administrator should be appointed to complete administration of the estate.
Ratio Decidendi
The court found that the death of the sole administrator, Samson Otieno Onyango, rendered the grant useless and inoperative, necessitating its revocation under section 76 of the Law of Succession Act. Although the applicant did not initially provide evidence of death, the respondent's affidavit and the attached death certificate cured this deficiency. The court held that the grant could not be transferred and must be revoked. The respondent, Samuel Kepher Owuor, was agreeable to appointment as the new administrator, and the court found this appropriate to ensure completion of the estate's administration. The previous orders on distribution remain intact, and the new administrator is to...
Court Disposition
Application for revocation of grant allowed; new administrator appointed.
Orders
- The grant made to Samson Otieno Onyango on September 27, 2011 is revoked.
- Samuel Kepher Owuor is appointed as administrator of the estate.
Full Case Text
Judgment text and source record
16 paragraphs
In re Estate of Joseph Onyango Otieno (Deceased) (Succession Cause 249 of 2011) [2023] KEHC 19034 (KLR) (19 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19034 (KLR)
Republic of Kenya
In the High Court at Busia
Succession Cause 249 of 2011
WM Musyoka, J
June 19, 2023
Ruling
1. The application dated February 23, 2022 seeks revocation of grant herein, on grounds that the administrator, Samson Otieno Onyango, had died before he had completed administration. The applicant, David Ouma Otieno, would like him replaced.
2. The death of a sole administrator ought to trigger revocation of a grant, under section 76 of the Law of Succession Act, Cap 160, Laws of Kenya, on grounds that the death of such sole administrator would render his grant useless and inoperative, for it would only be the dead administrator who could act under the said grant.
3. Before a grant can be revoked on such grounds, it ought to be demonstrated that the grantee was dead, to warrant that revocation. I have carefully gone through the documents attached to the affidavit of the applicant, sworn on February 23, 2022. None of them relate to Samson Otieno Onyango. There is, therefore, no evidence that he is dead, to warrant the grant made being revoked.
4. However, that deficiency is cured by the replying affidavit of the respondent, Samuel Kepher Owuor, of April 18, 2023. He concedes that Samson Otieno Onyango died before the estate was transmitted, and he has attached evidence of the death, by way of a certificate of death, dated August 1, 2016.
5. As Samson Otieno Onyango is dead, the grant made to him has become useless and inoperative. It would serve no purpose for it to remain in force. It cannot be transferred to another person. I hereby revoke it.
6. The applicant proposes the respondent, Samuel Kepher Owuor, for appointment as administrator, in the place of Samson Otieno Onyango. The respondent is agreeable to being so appointed.
7. Consequently, I do hereby revoke the grant that was made to Samson Otieno Onyango on September 27, 2011, and appoint, in his place, Samuel Kepher Owuor as administrator of the estate. A grant of letters of administration intestate shall issue to him. The orders, on distribution of the estate, made on May 9, 2013, shall remain intact, and the new administrator shall proceed, with dispatch, to distribute and transmit the estate in accordance with those orders. The matter shall be mentioned after 6 months, to confirm completion of transmission and administration of the estate, and for closure of this file.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 19TH DAY OF JUNE 2023WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AppearancesMr. Wanyama, instructed by Wanyama & Company, Advocates for the applicant.Mr. Sane, instructed by Peris Odoyo & Company, Advocates for the respondent.