[2020] KEHC 8886 (KLR)
The court held that since no petition for letters of administration had been filed in respect of the deceased's estate, the application seeking orders for distribution and management of the estate was premature. The issues raised by the parties, including the distribution of the estate and appointment of...
Source-derived case information.
- Citation
- [2020] KEHC 8886 (KLR)
- Parties
- Applicant: Teresa Auma Odundo; Applicant: Aloyce Ogada Odundo; Defendant: Helida Olang’o Odundo; Defendant: Ezekiel Odundo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 11 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application dismissed as premature
- Legal Topics
- Succession Proceedings, Letters of Administration, Interlocutory Injunctions, Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresa Auma Odundo
Applicant
Aloyce Ogada Odundo
Applicant
Helida Olang’o Odundo
Defendant
Ezekiel Odundo
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court should grant interlocutory orders restraining the defendants from dealing with the deceased's property before letters of administration are obtained.
- 2 Whether the application for distribution and management of the estate is premature before filing a succession cause.
Ratio Decidendi
The court held that since no petition for letters of administration had been filed in respect of the deceased's estate, the application seeking orders for distribution and management of the estate was premature. The issues raised by the parties, including the distribution of the estate and appointment of administrators, could only be properly addressed within a succession cause. The court emphasized that its jurisdiction at this stage was limited and directed the parties to file a petition for letters of administration forthwith. If the parties could not agree on administrators, the court would appoint them or refer the matter to the Public Trustee. Accordingly, the application was...
Court Disposition
application dismissed as premature
Orders
- The application dated 19.12.2018 is dismissed.
- Parties to file a petition for letters of administration within 14 days.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
FAMILY DIVISION
HCCC CAUSE NO. 11 OF 2018
IN THE MATTER OF THE ESTATE OF MR. WILLIAM ODUNDO KIRIRI – (DECEASED)
TERESA AUMA ODUNDO...........................................................................1STAPPLICANT
ALOYCE OGADA ODUNDO......................................................................2ND APPLICANT
VERSUS
HELIDA OLANG’O ODUNDO..................................................................1ST DEFENDANT
EZEKIEL ODUNDO....................................................................................2NDDEFENDANT
RULING
1. The Application coming for consideration is dated 19. 12. 2018 filed under Certificate of Urgency seeking the following orders
(i) THAT this Application be certified urgent and the same be heard ex-parte.
(ii) THAT the Defendants be restrained from letting, collecting rent and selling the deceased’s property until the family obtain a letter of administration and the property is divided equally among the two families of the deceased.
(iii) THAT the Defendant and her children be and are hereby restrained from interfering with the property wherever it is, in any other manner, pending hearing and determination of this case.
(iv) THAT the rent collected from houses in Kibera Slum be deposited with the office of the Public Trustee, the same should include the rent collections since the death of Mzee WilliamKiriri Odundo.
(v) THAT the costs be awarded to the Applicants.
2. The Application is supported by the Affidavit Aloyce Ogada Odundo in which he has deposed that the Respondents Helida Olango Odundo and Ezekiel Odundo are using the Property unlawfully without involving all the beneficiaries.
3. The 1st Respondent filed a Replying Affidavit dated 30. 5.2019 in which she deposed that the Applicant who is her stepson has been harassing and threatening her and that the deceased left a Will which was read to all the parties.
4. Further, that the deceased had two wives and every wife has always lived in her place and allocated equal units of 30 rental houses.
5. The Applicant filed a further Affidavit in response to Replying Affidavit in which he disputed the averments in the Replying Affidavit that the Estate of the deceased has been distributed.
6. The parties filed written submissions in the Application dated 19. 12. 2018 which I have duly considered. The Applicant is a son of the deceased Mzee WILLIAM KIRIRI who died on 9. 3.2018 while the Respondent is the second wife of the deceased.
7. I find that nobody has petitioned for letters of administration in respect of the Estate of the deceased.
8. The issues raised by the parties can only be handled in the Succession Cause.
9. I accordingly find that the Parties should file a Petition forthwith for purposes of distribution of the estate.
10. The Application dated 19. 12. 2018 is premature as the said issues of distribution of the estate ought to be raised in the Succession Cause.
11. I agree with the holding of Mabeya J in the decision in theestate of ZakariaNthigaMatumo (Deceased)that the probate court's sphere of inquiry is limited to ascertaining what assets are available to the estate (emphasis mine), who the beneficiaries are and the mode of distribution of the estate.
12. I direct that the parties appear before this Court for purposes of appointment of administrators of the Estate of the deceased WILLIAM ODUNDO KIRIRI within 14 days of this date.
13. If the parties are unable to agree on who to administer the estate the court will appoint administrators with the option of sending the case to the Public Trustee for administration of the Estate.
14. The application dated 19. 12. 2018 is accordingly dismissed with no orders as to costs.
DELIVERED,DATED AND SIGNED IN OPEN COURT THIS 24TH DAY OF JANUARY, 2020
ASENATH ONGERI
JUDGE OF THE HIGH COURT OF KENYA, NAIROBI.