[2015] KEHC 6787 (KLR)
The court determined that, given the consensus among the parties and the absence of any contention regarding the distribution of the estate, it would be unjust and impractical to require gazettement at this late stage. The court relied on its inherent jurisdiction under Rule 73 of the Probate and Administration...
Source-derived case information.
- Citation
- [2015] KEHC 6787 (KLR)
- Parties
- Applicant: Paul Gikurumi Ndotono; Respondent: Ndotono Waiganjo (Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 356 of 1988
- Procedural Posture
- Succession Cause / Ruling on Application for Waiver of Gazettement
- Outcome
- application allowed
- Judges
- DN Musyoka
- Legal Topics
- Probate and Administration, Waiver of Gazettement, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Gikurumi Ndotono
Applicant
Ndotono Waiganjo (Deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Waiver of Gazettement
Legal Issues
- 1 Whether the court can waive the requirement for Kenya Gazette notification in the appointment of an administrator for the estate of the deceased.
- 2 Whether the Land Registrar can be directed to effect the certificate of confirmation of grant without production of the Kenya Gazette notification.
Ratio Decidendi
The court determined that, given the consensus among the parties and the absence of any contention regarding the distribution of the estate, it would be unjust and impractical to require gazettement at this late stage. The court relied on its inherent jurisdiction under Rule 73 of the Probate and Administration Rules to waive the requirement for Kenya Gazette notification. The court found that the previous order appointing the administrator without gazettement was not made in error and did not require review. Accordingly, the court allowed the application and directed the Land Registrar to give effect to the certificate of confirmation of grant without demanding the Kenya Gazette...
Court Disposition
application allowed
Orders
- The application is allowed in terms of prayer 2.
- The Land Registrar responsible for Kiambu County is directed to give effect to the certificate of confirmation of grant dated 31st July 2013 without requiring production of the Kenya Gazette notification.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 356 OF 1988
IN THE MATTER OF THE ESTATE OF NDOTONO WAIGANJO-(DECEASED)
RULING
The application dated 4th August 2014 seeks orders with respect to waiver of the Kenya Gazette notification.
The grounds upon which the application is premised are set out on the face of the application and in the affidavit of the administrator, Paul Gikurumi Ndotono, sworn on 4th August 2014.
The background is that the matter was initiated by way of petition. It was directed thereafter that citations do issue upon certain individuals. The persons cited appeared. After hearing the parties the court appointed the eldest son of the deceased as administrator. This was done without the matter going for gazettement, whereupon the grant was issued to him.
The grant has since been confirmed, but the administrators are having difficulties getting the confirmation orders enforced because the relevant lands authorities are demanding a copy of the Kenya Gazette notification.
The order to appoint an administrator without going through the process of gazettement was made on 29th July 1998. The court has inherent jurisdiction to proceed in that manner after hearing all the parties and in circumstances where the parties are at consensus. I do not think the said order was made in error and therefore I need not review it.
I am cognizant of the fact that this is an old matter. Equally, the parties appear to be in consensus on distribution and there is no contention. It would be imprudent to set them back by ordering gazettement, as that would require that the process of applying for the grant start in earnest.
Rule 73 of the Probate and Administration Rules saves the inherent power of this court to make such orders as may be necessary for the ends of justice. This is one case where the court ought to exercise its inherent power to do justice.
I am inclined to and I do hereby allow the application in terms of prayer 2 thereof. The Land Registrar responsible for Kiambu County is hereby directed to give effect to the certificate of confirmation of grant dated 31st July 2013 without requiring production of the Kenya Gazette notification in relation to this matter. It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 30th DAY OF January 2015.
W. MUSYOKA
JUDGE