[2014] KEHC 4688 (KLR)
The court held that while proof of death is generally required for grant of representation, Rule 7(2) of the Probate and Administration Rules allows for such proof to be provided by other written evidence if a death certificate is unavailable. Given that the deceased died in the 1960s before the registration of...
Source-derived case information.
- Citation
- [2014] KEHC 4688 (KLR)
- Parties
- Applicant: Joseph Mwaniki Kubuta
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 7 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Succession Cause Without Death Certificate
- Outcome
- application allowed
- Legal Topics
- Succession, Proof of Death, Grant of Representation
- 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
Joseph Mwaniki Kubuta
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Succession Cause Without Death Certificate
Legal Issues
- 1 Whether the applicant can be allowed to file a succession cause without producing a death certificate.
- 2 Whether alternative written evidence of death satisfies the requirements under Rule 7(2) of the Probate and Administration Rules.
Ratio Decidendi
The court held that while proof of death is generally required for grant of representation, Rule 7(2) of the Probate and Administration Rules allows for such proof to be provided by other written evidence if a death certificate is unavailable. Given that the deceased died in the 1960s before the registration of deaths was established, and the applicant provided a letter from the area chief confirming the death, the court found this to be sufficient written evidence. The court exercised its discretion to allow the application, emphasizing that strict proof by death certificate is not always mandatory in appropriate cases where such documentation cannot be obtained.
Court Disposition
application allowed
Orders
- The applicant is allowed to apply for grant of representation of the deceased’s estate using the chief’s letter as proof of death.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
MISCELLANEOUS APPLICATION NO. 7 OF 2014
IN THE MATTER OF THE ESTATE OF KARIUKI KUBUTA (DECEASED)
AND
JOSEPH MWANIKI KUBUTA…………………………………….APPLICANT
RULING
Joseph Mwaniki Kubuta, the applicant herein has moved this court by way of a Notice of Motion dated 17th March 2014 seeking leave to file a succession cause in respect of the estate of his deceased brother Kariuki Kubuta without producing a death certificate.
The application is not grounded on any provisions of the law but since the applicant is unrepresented, this court in the exercise of its inherent jurisdiction and in the spirit of administering substantive justice will disregard this anomaly and find that the application has been brought under Rules 49 and 73 of the Probate and Administration Rules.
The applicant avers in his supporting affidavit that he intends to file a succession cause in respect of his brothers estate but he does not have a death certificate; that his brother died in the 1960’s when this country did not have a system of registering deaths and hence no death certificate was issued in respect of his late brother’s death.
Since a grant of representation is always sought in respect of the estate of a dead person, it follows that the person seeking such grant must provide proof of death of the person in question.
Rule 7 of the Probate and Administration Rules which sets out the information which must be contained in an application for grant of representation requires that such an application must be supported by proof of death.
Rule 7(2) of the said Rules states that “there shall be exhibited in the affidavit a certificate or a photocopy of a certificate of the death of the deceased or such other written evidence of the death as may be available”.
In this case, though the applicant has not annexed to his affidavit a certificate of death as the same is not available , he has attached a letter from the chief of his area Ngariama Location dated 10th March 2014 confirming that the deceased Kariuki Kubuta died in the 1960’s.
My interpretation of Rule 7(2) is that proof of death need not be done strictly by way of availing a certificate of death but can be done by “such other written evidence of the death as may be available”.
In my view, this is not to say that courts will not require strict proof of death in applications seeking grant of letters of administration by insisting on the applicants exhibiting a certificate of death. It only means that in appropriate cases such as the present one, the court can exercise its discretion and allow death to be proved by any other written evidence which is available.
In this case, the only available evidence confirming the death of Kariuki Kubuta appears to be the letter dated 10th March, 2014 authored by the chief of the area the deceased hailed from.
In the circumstances of this case, I find that the chief’s letter satisfies the requirements of Rule 7(2) of the Probate and Administration Rules.
I therefore allow the application. The applicant Joseph Mwaniki Kubuta is hereby allowed to apply for grant of representation of the deceased’s Estate using letter dated 20thJanuary 2014 written by Chief Muchiri Karia of Ngariama Location as proof of death of Kariuki Kubuta. There will be no order as to costs.
C.W. GITHUA
JUDGE
DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 13TH DAY OF MAY 2014in the presence of:-
The applicant
Mbogo Court Clerk