[2023] KEHC 630 (KLR)
The court found that the applicant failed to provide sufficient evidence to prove that the respondent obstructed the administration and distribution of the estate or that he was in contempt of court. The application was based on mere allegations and denials, with no corroborative evidence. Consequently, the court...
Source-derived case information.
- Citation
- [2023] KEHC 630 (KLR)
- Parties
- Applicant: Eliud Omolo Nyoloo; Respondent: Washington Omondi Nyoloo
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 103 of 2015
- Procedural Posture
- Probate and Administration Application / Ruling on Chamber Summons Seeking Enforcement of Certificate of Confirmation of Grant and Related Orders
- Outcome
- Application for committal and related orders dismissed; facilitative orders granted for police security and survey implementation.
- Judges
- KW Kiarie
- Legal Topics
- Succession, Administration of Estates, Confirmation of Grant, Distribution of Estate, Enforcement of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliud Omolo Nyoloo
Applicant
Washington Omondi Nyoloo
Respondent
Procedural Posture
Probate and Administration Application / Ruling on Chamber Summons Seeking Enforcement of Certificate of Confirmation of Grant and Related Orders
Legal Issues
- 1 Whether the respondent obstructed the administrator from administering and distributing the estate as per the confirmed grant.
- 2 Whether the applicant provided sufficient evidence to justify committal of the respondent to civil jail for contempt.
- 3 Whether the court should grant orders for police security and survey implementation to facilitate distribution of the estate.
Ratio Decidendi
The court found that the applicant failed to provide sufficient evidence to prove that the respondent obstructed the administration and distribution of the estate or that he was in contempt of court. The application was based on mere allegations and denials, with no corroborative evidence. Consequently, the court declined to grant the orders for committal to civil jail or to issue summons against the respondent. However, to facilitate the finalization of the estate distribution, the court ordered that the OCS Homa Bay police station provide security to the administrator to enable the survey works necessary for distribution. The administrator was given 90 days to complete the process and...
Court Disposition
Application for committal and related orders dismissed; facilitative orders granted for police security and survey implementation.
Orders
- Application for committal of respondent to civil jail is dismissed.
- OCS Homa Bay police station to provide security to the administrator to facilitate survey works for distribution of the estate.
Full Case Text
Judgment text and source record
24 paragraphs
In re Estate of Paul Obingo Olwanga (Deceased) (Probate & Administration 103 of 2015) [2023] KEHC 630 (KLR) (9 February 2023) (Ruling)
Neutral citation: [2023] KEHC 630 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Probate & Administration 103 of 2015
KW Kiarie, J
February 9, 2023
IN THE MATTER OF THE ESTATE OF: PAUL OBINGO OLWANGA DECEASED
Between
Eliud Omolo Nyoloo
Petitioner
and
Washington Omondi Nyoloo
Respondent
Ruling
1. Eliud Omolo Nyoloo, the applicant herein, moved the court by way of chamber summons dated November 15, 2021 pursuant to rule 49 of the Probate and Administration Rules. He is seeking the following orders:a.The honourable court be pleased to issue summons to Washington Omondi Nyoloo, one of the beneficiaries of the deceased estate to show cause why warrant of arrest and committal to jail cannot be issued against him for preventing the administrator to fully administer the estate of the deceased and enforce the certificate of confirmation of grant issued on the 25th day of September, 2019 and distribute the deceased’s estate consist of land Parcel No Kagan/Kamenya/58 to all the beneficiaries listed therein.b.The honorable court be pleased to issue an order directing the county surveyor to implement the order of this court issued on the 25th of September, 2019 and generate land parcels numbers for each beneficiary listed therein as per the mode of distribution.c.The honorable court be pleased to issue an order directing the OCS Homa Bay police station to provide security to the County surveyor and his staff during the visit on land parcel No Kagan/Kamenya/58 for the implementation of the said order.d.The cost of this application be paid out of the estate.
2. The application is premised on ground that the respondent has been chasing the surveyor whenever he goes to the ground.
3. The allegations by the applicant were denied by the respondent.
4. Rule 49 of Probate and Administration Rules provides as follows:A person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported if necessary by affidavit.
5. Other than his contention, the applicant did not adduce evidence to support his averment. In order for the court to invoke its jurisdiction and commit a party to civil jail, there must be sufficient evidence to the satisfaction of the court. In this application I have accusations and denials; it is the applicant’s word against that of the respondent. I will not therefore grant the orders sought.
6. In order to hasten the finalization of the distribution of the estate, I make an order that the OCS Homa Bay police station to provide security to the administrator herein in order to facilitate the survey works required in the course of the distribution of the estate.
7. The administrator is given 90 days to do so and to render accounts on June 12, 2023.
8. Each party to meet own costs
DELIVERED AND SIGNED AT HOMA BAY THIS 9THDAY OF FEBRUARY, 2023KIARIE WAWERU KIARIEJUDGE