[2008] KEHC 1879 (KLR)
The court found that the objector's consent to the petition for grant of letters of administration was not validly obtained, as her signature was not appended before a Commissioner for Oaths as required by law. The court further accepted the objector's case that the property in question was held in trust by the...
Source-derived case information.
- Citation
- [2008] KEHC 1879 (KLR)
- Parties
- MISSING: Paul Mbugua Kagucia (Deceased); Applicant: Objector (wife of late brother of deceased); Respondent: Administrators (wife of deceased's son and grandson)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 3135 of 2001
- Procedural Posture
- Succession Cause / Ruling on Objection to Confirmation of Grant
- Outcome
- Objection upheld in part; property to be redistributed equally between objector and administrators.
- Judges
- KH Rawal
- Legal Topics
- Succession, Distribution of Estate, Trusts in Family Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mbugua Kagucia (Deceased)
MISSING
Objector (wife of late brother of deceased)
Applicant
Administrators (wife of deceased's son and grandson)
Respondent
Procedural Posture
Succession Cause / Ruling on Objection to Confirmation of Grant
Legal Issues
- 1 Whether the consent of the objector to the petition for grant of letters of administration was validly obtained.
- 2 Whether the property in question was held in trust for the late husband of the objector and should be distributed accordingly.
- 3 Whether the grant should be revoked or the property redistributed.
Ratio Decidendi
The court found that the objector's consent to the petition for grant of letters of administration was not validly obtained, as her signature was not appended before a Commissioner for Oaths as required by law. The court further accepted the objector's case that the property in question was held in trust by the deceased for the late husband of the objector in equal shares. Consequently, the court ordered that the property be redistributed, with the objector receiving a half share. The court also directed that the property be resurveyed in accordance with this order, with the costs of the resurvey to be borne equally by the parties. No order as to costs was made, considering the familial...
Court Disposition
Objection upheld in part; property to be redistributed equally between objector and administrators.
Orders
- The property in question shall be redistributed, with the objector receiving a half share.
- The property shall be resurveyed in accordance with the redistribution order.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Succession Cause 3135 of 2001
IN THE MATTER OF THE ESTATE OF PAUL MBUGUA KAGUCIA – DECEASED
RULING
The parties herein are family members. The objector is the wife of the late brother of the deceased. The Administrators are the wife of the Deceased’s son and his grand son.
In the affidavit in support of Petition for letters of administration intestate, the administrator have mentioned all the beneficiaries including the objector who is described as 70 years of age. I do agree that once the objector has been mentioned as beneficiary and she has not really contested her consent in the petition, what she in earnest, is complaining is the division of the property as is ordered in certificate of confirmation. That is the reason learned counsel appearing for her conceded during his submissions that there is no reason for revoking the grant if the only issue is the sub-division and the court can direct the redistribution and consequently the property to be resurveyed.
From the evidence adduced by the Administrator, the first Administrator testified that the objector appended her signature before her and a chief and then the form for consent which was so signed was handed over to their lawyers to be submitted. I can thus clearly deduce that the signature of the objector was not appended before the Commissioner for Oaths as is purported to have been presented before the court.
In the past, I have shown my disgust at the practice undertaken by the Commissioners for Oaths to append their signatures on the documents which are presented to them filled in and signed. It is not only an irregularity, but is totally unethical and bordering to the commission of an offence.
I shall, in the premises, find the said consent not validly obtained and accept the objector’s case that the property in question was held in trust by the deceased for the late husband of the objector in equal shares.
I thus direct that the property be thus redistributed with the objector getting half share thereof.
There shall be thus resurvey of the property in accordance with the above order, costs whereof be bone by the parties equally.
The parties are family members, I shall thus not make any order on costs.
Dated and signed at Nairobi this 26th June, 2008.
K.H. RAWAL
JUDGE
26. 6.08