[2009] KEHC 108 (KLR)
The court found that the applicant, Lily Chepkemoi Bune, did not follow the proper legal procedure in seeking confirmation of grant intestate. The law requires that the surviving spouses of the deceased have the primary right to apply for letters of administration, and if they do not do so, any other person must...
Source-derived case information.
- Citation
- [2009] KEHC 108 (KLR)
- Parties
- Applicant: Lily Chepkemoi Bune; Respondent: Annah Chepkorir Chepkwony; Respondent: Leah Chelangat Too; Respondent: Mathew Kipkemoi Soi
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 337 of 2007
- Procedural Posture
- Succession Cause / Ruling on Application for Confirmation of Grant
- Outcome
- Application for confirmation of grant refused; temporary grant to be revoked.
- Legal Topics
- Succession, Grant Confirmation, Letters of Administration, Consanguinity, Citation Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lily Chepkemoi Bune
Applicant
Annah Chepkorir Chepkwony
Respondent
Leah Chelangat Too
Respondent
Mathew Kipkemoi Soi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Confirmation of Grant
Legal Issues
- 1 Whether the applicant was entitled to apply for confirmation of grant intestate for the estate of the deceased.
- 2 Whether the proper procedure was followed in applying for letters of grant intestate.
- 3 Whether all beneficiaries and survivors of the deceased were properly disclosed and included in the application.
Ratio Decidendi
The court found that the applicant, Lily Chepkemoi Bune, did not follow the proper legal procedure in seeking confirmation of grant intestate. The law requires that the surviving spouses of the deceased have the primary right to apply for letters of administration, and if they do not do so, any other person must first issue a citation to them. The applicant failed to issue such a citation. Furthermore, the application did not disclose all the necessary survivors of the deceased, as required by law. The court also noted irregularities in the issuance of the temporary grant, as there was no order or signature from the judge authorizing its issuance. Consequently, the court declined to...
Court Disposition
Application for confirmation of grant refused; temporary grant to be revoked.
Orders
- The application for confirmation of grant dated 12th May 2009 is declined.
- Notice to issue to parties concerned for revocation proceedings of the temporary grant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Succession Cause 337 of 2007
ESTATE OF THE LATE SAMSON CHEPKWONY BUNE…DECEASED
AND
LILY CHEPKIRUI BUNE……………...………………………PETITIONER
RULING
Confirmation of grantApplication dated 12th May 2009That is refused by court
1. Background
1. Samson Chepkwony Bune [Bune] (deceased) passed away on the 28th December 1998 at the age of eighty seven (87) years old. A male adult, he died at Chemosot of Malaria.
2. One Lily Chepkemoi Bune a female adult aged thirty eight (38) years old obtained a letter from the chief stating that she Lily Chepkemoi Bune and three others Annah Chepkorir Chepkwony, Leah Chelangat Too and Mathew Kipkemoi Soi was the beneficiary to the estate. With this letter, Lily Chepkemoi petitioned for letters of grant intestate for the said estate in this Succession Cause. From the documents filed she was able to show that the deceased was proprietor of land parcel Kericho/Kabartegan/366 amounting to 13. 5 acres. She disclosed that she was a granddaughter to the deceased aged thirty eight (38) years old in 2001 and the other two ladies were the widows to the deceased aged forty two (42) years and fifty three (53) years old respectively. The 4th beneficiary is said to be a male adult purchaser.
3. Though the Kenya Gazette was issued on the 30th November 2007 by the Deputy Registrar form P & A 30 was not obtained until 12th February 2008 to initiate that the Principal Registry does not have the same grant being appealed from elsewhere.
4. The petitioner on 14th July 2008 filed an affidavit under Section 26 to state she is a dependant of the deceased. On 29th September 2008 she was issued with temporary grant of letters intestate (G.B.M. Kariuki J).
5. By 12th May 2009 she applied for confirmation of letters of grant intestate to the estate which is the subject of this ruling. Should this application be granted?
II. Opinion
6. According to the line of consanguinity, the widows of the deceased being the spouses have a right to apply for letters of grant intestate. If they fail to do so, any person may apply for these letters. The procedure though having that such person must first file for a citation seeking request to those rightfully to apply to do so within fifteen (15) days. Failure to accept to apply then the citor would be permitted to proceed with the letters intestate.
7. In applying for the letters all survivors of the deceased must be named. This is the deceased parents, widow and children failure to children grandchildren. In this cause none of the survivors including the petitioner parents is named on the form P & A 5 as children of the deceased. Whilst the estate is still being gathered no sale of the property is permitted to be undertaken. If the transaction occurred before the deceased died then the purchaser is a liability to the estate which the administratrix require to deal with and settle.
8. In this Succession cause the proceedings by the petitioner is wrong in coming to court. This should have been by way of citation proceedings.
9. (The Hon. Judge never gave orders nor signed the court file for temporary grant intestate to issue. How one was issued is unclear).
10. This court hereby declines to allow the application of grant dated 12th May 2009 for confirmation of grant. By notice under P & A 69 Suo Moto,the grant temporary issued, will be revoked. The notice to issue to parties concerned for the revocation proceedings to take place on a date convenient to parties. The said persons will have leave to state why the grant ought not to be revoked.
Dated this 30th day of November 2009
M. A. ANG’AWA
JUDGE