[2010] KEHC 2038 (KLR)
The court determined that, despite the respondent's affidavit asserting the objectors are not beneficiaries, the absence of the respondent in court to defend the objection necessitates a full hearing. The objection raises serious issues regarding concealment of beneficiaries and the status of the parties, which can...
Source-derived case information.
- Citation
- [2010] KEHC 2038 (KLR)
- Parties
- Respondent: Ephrahim Agede Kivihya; Applicant: Janet Nyandiko; Applicant: Judith Kavere; Applicant: Edwin Machuki; Applicant: George Kivihya; Applicant: Laura Michelle; Applicant: Faith Mboga; Applicant: Mary Kimue; Applicant: Brian Akombo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 30 of 2007
- Procedural Posture
- Succession Cause / Ruling on Objection to Grant
- Outcome
- Objection proceedings to proceed to full hearing; no final determination on revocation at this stage.
- Legal Topics
- Revocation of Grant, Concealment of Beneficiaries, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ephrahim Agede Kivihya
Respondent
Janet Nyandiko
Applicant
Judith Kavere
Applicant
Edwin Machuki
Applicant
George Kivihya
Applicant
Laura Michelle
Applicant
Faith Mboga
Applicant
Mary Kimue
Applicant
Brian Akombo
Applicant
Procedural Posture
Succession Cause / Ruling on Objection to Grant
Legal Issues
- 1 Whether the grant of letters of administration should be revoked for concealment of beneficiaries.
- 2 Whether the objectors are beneficiaries entitled to a share of the estate.
- 3 Whether the objection proceedings should proceed to full hearing with oral evidence.
Ratio Decidendi
The court determined that, despite the respondent's affidavit asserting the objectors are not beneficiaries, the absence of the respondent in court to defend the objection necessitates a full hearing. The objection raises serious issues regarding concealment of beneficiaries and the status of the parties, which can only be resolved through oral evidence and cross-examination. Therefore, the objection proceedings are declared proper for a full hearing to ensure all parties' evidence is tested and the matter is determined on its merits.
Court Disposition
Objection proceedings to proceed to full hearing; no final determination on revocation at this stage.
Orders
- Objection proceedings declared proper for full hearing.
- A fresh hearing date to be taken.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
Succession Cause 30 of 2007
IN THE MATTER OF THE ESTATE OFMARITA MUSURUVE KIVIHYA
EPHRAHIM AGEDE KIVIHYA............................................RESPONDENT/PETITIONER
A N D
1. JANET NYANDIKO )
2. JUDITH KAVERE )
3. EDWIN MACHUKI )
4. GEORGE KIVIHYA )
5. LAURA MICHELLE )..........................................OBJECTORS
6. FAITH MBOGA )
7. MARY KIMUE )
8. BRIAN AKOMBO )
R U L I N G
The application before me is a Chamber summons seeking revocation of a grant of letters, and is dated 11. 12. 2008. Apart from the prayer for revocation the Objector also seeks several other prayers which clearly are only capable of being issued only if revocation is ordered.
The ground upon which revocation is sought is that the petitioner/respondent, concealed from court the fact that the deceased was survived by several other beneficiaries not shown and that one of those shown beneficiaries - Hellen Kamula Kivihya - was already deceased and no substitution had been sought or made.
In reply the respondent/petitioner in her replying affidavit, stated that all the objectors are not beneficiaries and could not have properly
been included in the record of succession as so. He gave detailed descriptions of each objector to show that they were not born by his father and have never lived on the land forming the estate of the deceased. He averred that they were born by the one or other of the husbands of his sisters and have homes, and grew up in those homes. He stated that his only sisters who might seek a share of the estate might be Janet Nyandiko and Judith Kavere whose father called David, married his sister until recently when she left him and came to stay where she was born and where the suit land is.
Sadly, the objector had to proceed in the absence of the petitioner who apparently had been served but failed to turn up in court to defend the objection. While his case, as shown in the replying affidavit, may be strong, nevertheless no one was in court to put their case. It therefore, seems to me to be proper that I open the objection proceedings so that it be done through oral evidence where the evidence
of parties can be tested during cross examination.
In the circumstance the objection proceedings is declared proper for full hearing. A fresh hearing date shall be taken presently. Orders accordingly.
Dated and delivered at Busia this 7th day of July, 2010.
D.A. ONYANCHA
J U D G E