[2020] KEHC 7683 (KLR)
The court found that the deceased was survived only by his widow, Christine Achieng, and that there were no children. Section 36(1) of the Law of Succession Act entitles the surviving spouse to the net intestate estate in such circumstances. The applicant, being a nephew, has no entitlement to the estate under the...
Source-derived case information.
- Citation
- [2020] KEHC 7683 (KLR)
- Parties
- Respondent: Christine Achieng; Applicant: Patrick Kweyu Otsieno
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 217 of 2011
- Procedural Posture
- Probate and Administration / Ruling on Summons for Revocation or Annulment of Grant
- Outcome
- application dismissed
- Judges
- KW Kiarie
- Legal Topics
- Succession, Intestate Estate, Grant Revocation, Spousal Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Christine Achieng
Respondent
Patrick Kweyu Otsieno
Applicant
Procedural Posture
Probate and Administration / Ruling on Summons for Revocation or Annulment of Grant
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently by false statement or concealment of material facts.
- 2 Whether the applicant, as nephew of the deceased, is entitled to a share of the estate where the deceased is survived only by a widow and no children.
- 3 Whether the respondent, as widow, is the sole heir under section 36(1) of the Law of Succession Act.
Ratio Decidendi
The court found that the deceased was survived only by his widow, Christine Achieng, and that there were no children. Section 36(1) of the Law of Succession Act entitles the surviving spouse to the net intestate estate in such circumstances. The applicant, being a nephew, has no entitlement to the estate under the law when a surviving spouse exists and there are no children. The court found no evidence of fraud or concealment of material facts in the grant's issuance. The application for revocation was therefore dismissed as misguided and based on greed. The respondent remains the sole heir, subject to the statutory provisions, and is required to render accounts as per section 83(g) of...
Court Disposition
application dismissed
Orders
- The application for revocation or annulment of grant is dismissed with costs.
- The petitioner is given 60 days to render accounts in compliance with section 83(g) of the Law of Succession Act.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
PROBATE & ADMINSTRATION NO. 217 OF 2011
IN THE MATTER OF THE ESTATE OF:
PAUL ONYANGO KWEYU.................................................................DECEASED
BETWEEN
CHRISTINE ACHIENG.......................................PETITIONER/ RESPONDENT
AND
PATRICK KWEYU OTSIENO....................................OBJECTOR/APPLICANT
RULING
1. The objector/applicant herein moved the court by way of summons for revocation or annulment of grant herein. He is seeking the following orders:
a) That the grant of letters of administration issued to Christine Achieng be revoked and or annulled.
b) That the grant of letters of administration in respect of the estate be issued to him and Christine Achieng.
2. The application is premised on the following grounds:
a) That the grant was made fraudulently by making a false statement or by concealment from court of material facts; and
b) That the applicant is a nephew of the deceased herein while the respondent is the widow of the deceased herein.
3. The application was opposed on grounds that:
a) The respondent is the widow of the deceased herein.
4. According to form P. &A. 5, Paul Onyango Kweyu the deceased herein was survived by the petitioner and they had no children. This was confirmed by the objector. Section 36 (1) of the Law of Succession Act provides:
(1) Where the intestate has left one surviving spouse but no child or children, the surviving spouse shall be entitled out of the net intestate estate to—
(a) the personal and household effects of the deceased absolutely; and
(b) the first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater; and
(c) a life interest in the whole of the remainder:
Provided that if the surviving spouse is a widow, such life interest shall be determined upon her re-marriage to any person.
It is clear therefore that the petitioner is the sole heir of the deceased herein subject to the proviso in paragraph (c) of section 36 (1) of the Law of Succession Act.
5. The application is not only misguided but it is based on greed. The same is dismissed with costs.
6. The petitioner is given 60 days to render accounts in compliance with section 83 (g) of the Law of Succession Act.
DELIVERED and SIGNED at BUSIA this 25th day of February, 2020
KIARIE WAWERU KIARIE
JUDGE