[2021] KEHC 628 (KLR)
The court found that the citor, having established his status as a creditor through a sale agreement with the deceased, has a legitimate interest in the estate. Since the citees, who are the deceased's immediate family and have priority, failed to respond to the citation or petition for a grant of representation,...
Source-derived case information.
- Citation
- [2021] KEHC 628 (KLR)
- Parties
- Applicant: Mohamed Ali Abdalla; Respondent: Jamila Nassir Ali; Respondent: Rahma Nassir Ali; Respondent: Salma Nassir Ali Said Omayer
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration E081 of 2021
- Procedural Posture
- Probate and Administration Cause / Ruling on Citation Application
- Outcome
- Citation application allowed with directions.
- Legal Topics
- Grant of Representation, Intestate Succession, Creditor Claims, Citation Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Ali Abdalla
Applicant
Jamila Nassir Ali
Respondent
Rahma Nassir Ali
Respondent
Salma Nassir Ali Said Omayer
Respondent
Procedural Posture
Probate and Administration Cause / Ruling on Citation Application
Legal Issues
- 1 Whether the citor, as a creditor, is entitled to petition for a grant of representation in the absence of action by the deceased's survivors.
- 2 Whether the citees, having failed to respond to the citation, have relinquished their right to petition for a grant of representation.
Ratio Decidendi
The court found that the citor, having established his status as a creditor through a sale agreement with the deceased, has a legitimate interest in the estate. Since the citees, who are the deceased's immediate family and have priority, failed to respond to the citation or petition for a grant of representation, they are deemed to have relinquished their right. In accordance with Section 66 of the Law of Succession Act and Rules 21 and 22 of the Probate and Administration Rules, the citor is entitled to petition for a grant of representation if the citees do not do so within the stipulated period. The court exercised its discretion to allow the citation application and directed the...
Court Disposition
Citation application allowed with directions.
Orders
- The citees are given 30 days to petition for a grant of representation in respect of the estate of the deceased.
- In default of compliance by the citees, the citor is permitted to petition for the grant of representation.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
PROBATE AND ADMINISTRATION CAUSE NO. E081 OF 2021
IN THE MATTER OF THE ESTATE OF NASSIR ALI SAID (DECEASED)
MOHAMED ALI.......................................................................CITOR
VERSUS
JAMILA NASSIR ALI
RAHMA NASSIR ALI
SALMA NASSIR ALI SAID OMAYER.................................CITEES
RULING
1. The deceased herein Nassir Ali Said died intestate on 20th May 2018 leaving behind a widow by the name of Jamila Nassir and two daughters namely; Rahma Nassir and Salma Nassir as survivors. However, none of the said survivors has attempted to petition for a grant of representation in respect of the estate.
2. On 26TH July 2021, Mohamed Ali Abdalla (hereafter the citor) who claimed to have bought a piece of land from the deceased during his lifetime, filed a citation of even date seeking the said survivors (hereafter the citees), to show cause why they could not petition for the grant as persons entitled in priority in default he be permitted to petition for the same.
3. Despite being served with the said petition, the citees did not enter appearance nor file any objection to the citation pursuant to Rule 21(5) of the probate and administration rules(P&Rs). Consequently, the application was prosecuted exparte. During the hearing, M/s Nzamba appearing for the citor basically adopted the averments contained in the affidavit in support of the application.
4. I have considered the application herein which is not opposed. I have also considered the supporting material inter alia, a sale agreement reflecting the purchase of a parcel of land from the deceased person during his lifetime but which land had not been transferred to the citor. The citor’s interest in the estate therefore is that of a creditor.
5. Under Section 66 of the law of Succession, the court is bestowed with wide discretionary powers to determine on whom to confer a grant of representation in the best interest of all concern, but without prejudice, the court shall 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 intestate, with priority according to their respective beneficial interests as provided by part v.
c) The public trustee and
d) creditors
6. Considering that the citor has attached a sale agreement as proof of the purchase of the said land from the deceased, he is deemed to be a creditor hence the amount paid to the deceased becomes a liability to the estate. Under rule 22 of the P&A rules, a citation may issue 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.
7. In view of the dictates under Section 66 of the law of Succession Act and rules 21 and 22 of the P&A rules and considering that the citees have relinquished their right to petition for a grant of representation, the citor being an interested party in the deceased’s estate as a creditor is entitled to petition for a grant of representation.
8. Accordingly, the citation application herein is allowed with directions that, the citees are hereby given 30 days within which to petition for a grant of representation in respect of the estate of the deceased in default the citor to petition for the same.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 22ND DAY OF DECEMBER 2021
J.N.ONYIEGO
JUDGE