[2021] KEHC 3758 (KLR)
The court held that since the 1st applicant, who was the only one to swear an affidavit in support of the application for revocation of grant, is now deceased and has not been substituted, and no directions have been given under Rule 44 of the Probate and Administration Rules, it would be premature and improper to...
Source-derived case information.
- Citation
- [2021] KEHC 3758 (KLR)
- Parties
- Applicant: M’Ndaka Kangangi; Applicant: Mwiti M’Ndaka; Applicant: Benedictor Njiru Riungu; Applicant: Martin Miriti M’Ndaka; Applicant: Celina Kaimenyi Kirugara; Applicant: Jediel Muriuki; Applicant: Robert Mugendi Nabia; Applicant: Saulu Nthiga Mbiuki; Respondent: Peter Gitonga Mutuamwari; Respondent: Majani Gardens Limited
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2 of 2020
- Procedural Posture
- Succession Cause / Directions on Substitution and Confirmation of Applicant's Death
- Outcome
- No orders issued; applicant to be substituted within 30 days.
- Judges
- LW Gitari
- Legal Topics
- Probate and Administration, Substitution of Parties, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
M’Ndaka Kangangi
Applicant
Mwiti M’Ndaka
Applicant
Benedictor Njiru Riungu
Applicant
Martin Miriti M’Ndaka
Applicant
Celina Kaimenyi Kirugara
Applicant
Jediel Muriuki
Applicant
Robert Mugendi Nabia
Applicant
Saulu Nthiga Mbiuki
Applicant
Peter Gitonga Mutuamwari
Respondent
Majani Gardens Limited
Respondent
Procedural Posture
Succession Cause / Directions on Substitution and Confirmation of Applicant's Death
Legal Issues
- 1 Whether the application for revocation of grant can proceed when the applicant is deceased and has not been substituted.
- 2 Whether the court can issue orders in the absence of directions under Rule 44 of the Probate and Administration Rules.
Ratio Decidendi
The court held that since the 1st applicant, who was the only one to swear an affidavit in support of the application for revocation of grant, is now deceased and has not been substituted, and no directions have been given under Rule 44 of the Probate and Administration Rules, it would be premature and improper to issue any orders on the application. The affidavit by the deceased applicant contained unsubstantiated allegations and was not supported by evidence or oral testimony. Therefore, the application cannot proceed until proper substitution is effected and directions are given by the court.
Court Disposition
No orders issued; applicant to be substituted within 30 days.
Orders
- The applicant be substituted within 30 days.
- Mention on 2/11/2021 for further directions.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT CHUKA
SUCCESSION CAUSE NO. 2 OF 2020
(FORMERLY MERU HIGH COURT SUCCESSION CAUSE NO. 246 OF 1995)
CONSOLIDATED WITH SUCCESSION CAUSE NO. 251 OF 2012
IN THE MATTER OF THE ESTATE OF THE LATE KANGANGI KAIRARIA
M’NDAKA KANGANGI1ST.............................APPLICANT/ADMINISTRATOR
MWITI M’NDAKA.......................................................................2ND APPLICANT
BENEDICTOR NJIRU RIUNGU................................................3RD APPLICANT
MARTIN MIRITI M’NDAKA.....................................................4TH APPLICANT
CELINA KAIMENYI KIRUGARA............................................5TH APPLICANT
JEDIEL MURIUKI........................................................................6TH APPLICANT
ROBERT MUGENDI NABIA......................................................7TH APPLICANT
SAULU NTHIGA MBIUKI..........................................................8TH APPLICANT
VERSUS
PETER GITONGA MUTUAMWARI...ADMINISTRATOR/1ST RESPONDENT
MAJANI GARDENS LIMITED...............................................2ND RESPONDENT
R U L I NG
This matter came up for directions on 6/7/2021 and to confirm substitution of the 1st applicant. The counsel for the applicant informed the court that he had filed an application for the grant of letters of administration ad litem to substitute the applicant. The counsel for the applicant did not file any evidence to prove that the deceased applicant was substituted. The supporting affidavit was sworn by the 1st applicant M’Ndaka Kangani. This is the supporting affidavit in support of the summons for revocation of grant. This affidavit was sworn on 4/3/2021. Later on 6/7/2021 this court was informed that the 1st applicant had passed away. The deceased 1st applicant was the only applicant who swore an affidavit in support of the application. He never got an opportunity go give his evidence. He has not been substituted. As such it would be premature go give a ruling in the application when the mover of the application is deceased and was not heard on the application. The affidavit by the deceased applicant has made various allegations which were not substantiated as there was not evidence attached to the application as proof. He was also not heard on the allegation on the affidavit.
1. The court did not give directions on how the application would proceed. Rule 44(3) of the Probate and Administration Rules provides that upon filing of summons for revocation of grant and affidavit, the court shall proceed to give directions on the person to be served with the application. The applicant is then required to file evidence of service on the persons so directed. The court will then proceed to hear the matter or give appropriate directions on how to proceed.
For the reasons that the applicant is now deceased and no directions were given under Rule 44 of the Probate and Administration Rules, I find that no orders can be issued in the application.
In the circumstances I direct that the applicant be substituted within 30 days. I will then proceed to issue direction on the application.
Dated, signed and delivered at Chuka this 27th day of July 2021.
L.W. GITARI
JUDGE
Order:
Mention on 2/11/2021.
L.W. GITARI
JUDGE
27/7/2021