[2018] KEHC 2561 (KLR)
The court found that, in the absence of any objection from the respondent and given her failure to respond to the citation or attend court, the applicant, as a creditor, is entitled under Section 66 of the Law of Succession Act to be appointed administrator of the deceased's estate. The court emphasized that the law...
Source-derived case information.
- Citation
- [2018] KEHC 2561 (KLR)
- Parties
- Applicant: Njeru Njau Alias Kamanga; Respondent: Albina Muthoni Kang’ethe
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 184 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Citation to Accept or Refuse Letters of Administration Intestate
- Outcome
- application allowed
- Legal Topics
- Succession, Letters of Administration, Creditor Rights, Intestate Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njeru Njau Alias Kamanga
Applicant
Albina Muthoni Kang’ethe
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Citation to Accept or Refuse Letters of Administration Intestate
Legal Issues
- 1 Whether the applicant, as a creditor, is entitled to take out letters of administration intestate where the person with prior right has failed to act.
- 2 Whether the court should grant the applicant the authority to administer the estate in the absence of objection from the respondent.
Ratio Decidendi
The court found that, in the absence of any objection from the respondent and given her failure to respond to the citation or attend court, the applicant, as a creditor, is entitled under Section 66 of the Law of Succession Act to be appointed administrator of the deceased's estate. The court emphasized that the law allows creditors to be appointed where those with prior right are unwilling or unavailable. The applicant's interest in the estate, particularly in relation to ongoing litigation, further justified the grant of letters of administration to him. The application was therefore found meritorious and allowed as prayed.
Court Disposition
application allowed
Orders
- The applicant is allowed to take out letters of administration intestate for the estate of Mburia Kugereka.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. SUCCESSION CAUSE NO. 184 OF 2016
In the matter of the Estate of MBURIA KUGEREKA (Deceased)
NJERU NJAU Alias KAMANGA...................APPLICANT/CITOR
V E R S U S
ALBINA MUTHONI KANG’ETHE.............RESPONDENT/CITEE
R U L I N G
1. This is a ruling on a citation to accept or refuse letters of administration intestate in respect of the estate of Mburia Kugereka.
2. The citor in his citation dated 24/10/2016 cites the widow of the deceased on Albina Muthoni Mburia who is said to be one of the persons entitled to share the estate.
3. The citee was served with the citation but did not file a reply. She has severally been served personally with hearing dates of the citation but has never attended court.
4. The applicant describes himself as a creditor under Section 66(1) of the Law of Succession Act and is keen to follow up his interest in the estate.
5. The applicant states that he was the plaintiff in a suit where the deceased was the defendant. An appeal was filed in the Court of Appeal and cannot be heard unless an administrator of the estate of the deceased is joined.
6. For this reason, he has filed this application to have the widow of the deceased be appointed administrator and subsequently be joined in the appeal.
7. The law applicable herein is Sections 79 and 66 of the Law of Succession Act. Rule 22(1) of Probate and Administration Rules under which this application is brought.
8. Section 79 of the Act provides: -
The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.
9. Section 66 of the Act provides: -
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference
a) surviving spouse or spouses, with or without association of other beneficiaries;
b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
c) the Public Trustee; and
d) creditors:
Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.
10. Rule 22(1)
(1) A citation may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.
11. The reading of Section 66 allows creditors to be appointed as administrator of deceased’s estate where the first in priority are not willing to take up the responsibility or where they are not available.
12. It is my considered opinion that there being no objection to this citation, the citor ought to be allowed to take out the letters of administration to defend his interest.
13. I find the application merited and allow it as prayed.
DELIVERED, DATED AND SIGNED AT EMBU THIS 8TH DAY OF NOVEMBER, 2018.
F. MUCHEMI
J U D G E
In the presence of: -
Mr. Ngige for Muthoni for Applicant