[2020] KEHC 8397 (KLR)
The court found that the application was fundamentally flawed because the person against whom the complaints were made, Silas Okanga, was neither named as a respondent nor served with the application. There was no evidence connecting the administratrix to the alleged acts. Granting the application would amount to...
Source-derived case information.
- Citation
- [2020] KEHC 8397 (KLR)
- Parties
- Applicant: Simon Indoko Machinji; Respondent: Mary Kerubo Machinji
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 770 of 2015
- Procedural Posture
- Succession Cause / Ruling on Summons Dated 14th November 2019
- Outcome
- summons dismissed
- Judges
- DN Musyoka
- Legal Topics
- Administration of Estates, Right to Be Heard, Distribution of Estate
- 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
Simon Indoko Machinji
Applicant
Mary Kerubo Machinji
Respondent
Procedural Posture
Succession Cause / Ruling on Summons Dated 14th November 2019
Legal Issues
- 1 Whether the summons dated 14th November 2019 can be granted against the administratrix in the absence of evidence connecting her to the alleged acts.
- 2 Whether it is proper to determine the application without serving Silas Okanga, the person against whom the complaints are made.
Ratio Decidendi
The court found that the application was fundamentally flawed because the person against whom the complaints were made, Silas Okanga, was neither named as a respondent nor served with the application. There was no evidence connecting the administratrix to the alleged acts. Granting the application would amount to condemning Silas Okanga unheard, contrary to the principles of natural justice. The court emphasized that parties should focus on distributing the estate rather than filing applications that delay the finalization of the matter. Consequently, the summons dated 14th November 2019 was dismissed for lack of merit and procedural fairness.
Court Disposition
summons dismissed
Orders
- The summons dated 14th November 2019 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 770 OF 2015
IN THE MATTER OF THE ESTATE OF PETER MACHINJI ISIAHO MUTONGOI (DECEASED)
RULING
1. The summons I am called upon to determine is dated 14th November 2019. It is brought at the instance of Simon Indoko Machinji, who I shall hereafter refer hereto as the applicant. Although the application does refer to a respondent, it does not name one in the title, but it would appear that the person being referred to as respondent is the administratrix herein, Mary Kerubo Machinji.
2. From the affidavit sworn in support of the application, no complaints are made against the administratrix. The acts that prompted the filing of the summons are attributed to one Silas Okanga, who is described as a son of the administratrix. It is not claimed that he acted on her instructions, and no proof has been attached to connect the administratrix to the said acts.
3. As the said Silas Okanga has not been named as a respondent, he was not served with the application. He has, therefore, not responded to the allegations made against him therein. As the complaints relate to him, he should have been served, so that he could respond to them. As it is, determination of this application in favour of the applicant would amount to condemning Silas Okanga unheard.
4. Since there is no evidence that the administrator was privy to what is alleged in the application, I do not find any basis for grant of the same. The parties herein should concentrate on getting the estate distributed instead of filing these applications that only serve to delay finalization of the matter. I hereby dismiss the summons dated 14th November 2019. As this is a family matter, I shall make no order as to costs.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 7th DAY OF FEBRUARY 2020
W. MUSYOKA
JUDGE