[2019] KEHC 6909 (KLR)
The court found that the petitioner, Christopher Kenyansa, misrepresented material facts by stating that the deceased died without a wife or child, contrary to the evidence that the deceased was survived by both. Under Section 39 of the Law of Succession Act, a brother is only entitled to petition for a grant if...
Source-derived case information.
- Citation
- [2019] KEHC 6909 (KLR)
- Parties
- Petitioner: Christopher Kenyansa; Objector: Dorcas Bisibori Kenyansa
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 33 of 2011
- Procedural Posture
- Probate and Administration / Ruling on Objection to Grant
- Outcome
- Objection sustained. Objector appointed administrator. Costs to petitioner.
- Judges
- KW Kiarie
- Legal Topics
- Succession, Intestate Estate, Priority of Administration, Concealment of Material Facts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Kenyansa
Petitioner
Dorcas Bisibori Kenyansa
Objector
Procedural Posture
Probate and Administration / Ruling on Objection to Grant
Legal Issues
- 1 Whether the petitioner concealed material facts in the petition for grant of letters of administration.
- 2 Whether the objector, as widow, has priority over the petitioner in administration of the estate.
- 3 Whether the petitioner was entitled to petition for the grant under the Law of Succession Act.
Ratio Decidendi
The court found that the petitioner, Christopher Kenyansa, misrepresented material facts by stating that the deceased died without a wife or child, contrary to the evidence that the deceased was survived by both. Under Section 39 of the Law of Succession Act, a brother is only entitled to petition for a grant if there is no surviving spouse or child. Since the objector, Dorcas Bisibori Kenyansa, is the widow of the deceased, she has priority in administration of the estate. The petitioner's concealment of material facts and lack of entitlement under the law rendered his petition invalid. The objection was therefore sustained, and the objector appointed as administrator of the estate.
Court Disposition
Objection sustained. Objector appointed administrator. Costs to petitioner.
Orders
- The objection is sustained.
- The objector, Dorcas Bisibori Kenyansa, is appointed administrator of the estate of the deceased.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
PROBATE & ADMINSTRATION NO. 33 OF 2011
IN THE ESTATE OF: MUSA NYANDUSI KENYANSA..............DECEASED
BETWEEN
CHRISTOPHER KENYANSA....................................................PETITIONER
AND
DORCAS BISIBORI KENYANSA................................................OBJECTOR
RULING
1. Dorcas Bisibori Kenyansa, the objector herein filed an objection to the making of a grant dated 3rd March 2011 under section 68 of the Law of Succession Act, Cap. 160 and Rule and 17(1) of the Probate and Administration Rules. It is premised on the following grounds:
a) That the petitioner concealed material facts in the petition.
b) That the objector ranks first in priority as a widow.
c) That the petitioner did not include all the deceased’s property in the petition.
2. The objection was not opposed.
3. I have perused the affidavit of the objector and the record. The following facts have emerged:
a. That the petitioner while applying for the grant stated that the deceased died without a wife and a child. This was however not true.
b. That at the time of the death of the deceased herein, he was survived by a wife and a child.
4. The law of Succession Act has provided for a brother of a deceased only in instances where the deceased is not survived by a spouse or a child. Section 39 of the Law of succession Provides as follows:
(1) Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority —
a. father; or if dead
b. mother; or if dead
c. brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
d. half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none
e. the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.
(2) Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.
The petitioner not only lied to the court but had no right to petition for the grant.
5, I therefore find that the application is merited. The objection is sustained. The objector herein is appointed the administrator of the estate of the deceased.
6. The costs of the objection be borne by the petitioner.
DELIVEREDandSIGNEDatBUSIA this 12thdayof June, 2019
KIARIE WAWERU KIARIE
JUDGE