[2020] KEHC 5158 (KLR)
The court found that both parties failed to comply with the mandatory procedure of filing summons for confirmation of grant as required under the Probate and Administration Rules. Without such an application, the court cannot issue any orders regarding the distribution of the estate. The affidavits filed by both...
Source-derived case information.
- Citation
- [2020] KEHC 5158 (KLR)
- Parties
- Applicant: Dinah Anyona Mutoko; Respondent: Musa Lubanga Matendechere
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 558 of 2013
- Procedural Posture
- Succession Cause / Ruling on Procedural Compliance Prior to Confirmation of Grant
- Outcome
- No orders issued; parties directed to comply with procedural requirements.
- Judges
- CM Njagi
- Legal Topics
- Probate and Administration, Confirmation of Grant, Mode of Distribution, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dinah Anyona Mutoko
Applicant
Musa Lubanga Matendechere
Respondent
Procedural Posture
Succession Cause / Ruling on Procedural Compliance Prior to Confirmation of Grant
Legal Issues
- 1 Whether the parties complied with the mandatory procedure of filing summons for confirmation of grant before seeking distribution orders.
- 2 Whether the court can issue orders for distribution of the estate in the absence of a proper application for confirmation of grant.
Ratio Decidendi
The court found that both parties failed to comply with the mandatory procedure of filing summons for confirmation of grant as required under the Probate and Administration Rules. Without such an application, the court cannot issue any orders regarding the distribution of the estate. The affidavits filed by both parties proposing their preferred modes of distribution were not accompanied by the requisite applications, and the objector did not file a formal protest. As a result, the court held that it could not proceed to make any substantive orders and directed the parties to regularize the proceedings by making the necessary applications in compliance with the law.
Court Disposition
No orders issued; parties directed to comply with procedural requirements.
Orders
- Parties are directed to make the necessary applications to align the matter with the provisions of the Probate and Administration Rules.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 558 OF 2013
IN THE MATTER OF THE ESTATE OF NASHON MALIKA LUBANGA Alias MALIKA LUBANGA (DECEASED)
AND
DINAH ANYONA MUTOKO..................PETITIONER
VERSUS
MUSA LUBANGA MATENDECHERE.....OBJECTOR
RULING
1. Upon going through the court file I have noted that no summons for confirmation of grant have been applied for in the matter. Directions were given by Chitembwe J. on the 26/2/2014 for the petitioner to file an application for confirmation of grant but she never did so. She only filed an affidavit in support of her proposed mode of distribution without an accompanying application for confirmation of grant.
2. The objector on the other hand filed an affidavit in support of his proposed mode of distribution without an accompanying protest to the mode of distribution proposed by the petitioner. Parties proceeded to adduce evidence on their preferred mode of distribution of the estate when there was no summons for confirmation of grant applied for in the case to which the Objector could object/protest to. It is then clear that parties by-passed an important and mandatory procedure in a succession cause. No orders can issue in such a scenario.
3. In view of the foregoing I hereby direct the parties in the matter to make the necessary applications to align the matter with the provisions of the Probate and Administration Rules.
Delivered, dated and signed at Kakamega this 5th day of June, 2020.
J. N. NJAGI
JUDGE
Representation:
No appearance for the Petitioner
By consent of Miss Andia through e-mail for the Objector
Petitioner - Absent
Objector - Absent
Court Assistant - Polycap
30 days right of appeal.