[2016] KEHC 2795 (KLR)
The court held that the application for removal of the administrator was fatally defective as it was never served on the respondents, thereby denying them the right to be heard. Furthermore, the applicant failed to obtain the consents of all concerned beneficiaries, particularly those with equal or higher...
Source-derived case information.
- Citation
- [2016] KEHC 2795 (KLR)
- Parties
- Applicant: James Mwangi; Respondent: Martha Mugure Chege
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1511 of 2003
- Procedural Posture
- Succession Cause / Ruling on Application for Removal of Administrator
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Succession, Removal of Administrator, Grant of Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwangi
Applicant
Martha Mugure Chege
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Removal of Administrator
Legal Issues
- 1 Whether the application for removal of the administrator was properly served on the respondents.
- 2 Whether the applicant established sufficient grounds for the removal of the administrator.
- 3 Whether the consents of all concerned beneficiaries were obtained for the removal and replacement of the administrator.
Ratio Decidendi
The court held that the application for removal of the administrator was fatally defective as it was never served on the respondents, thereby denying them the right to be heard. Furthermore, the applicant failed to obtain the consents of all concerned beneficiaries, particularly those with equal or higher entitlement to appointment as administrator. The absence of supporting affidavits or consents from the other survivors of the deceased rendered the application misconceived. The court emphasized that due process and procedural fairness are essential in succession matters, especially regarding the removal and appointment of administrators. Consequently, the application was dismissed for...
Court Disposition
application dismissed
Orders
- The application dated 1st April 2015 is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1511 OF 2003
IN THE MATTER OF THE ESTATE OF STEPHEN CHEGE KIMARI (DECEASED)
RULING
1. The application dated 1st April 2015, is by a beneficiary of the estate of the deceased, James Mwangi. The principal prayer is for the removal of one of the two administrators of the estate, Martha Mugure Chege, and for her replacement with the applicant.
2. The reason given for her proposed removal is that she has become an impediment to the distribution of the estate. She is demanding large sums of money so that she can complete administration, and she is only processing assets that were allocated to her at the confirmation of the grant. .
3. There is no evidence that the said application was ever served on the persons who are named on its face as the respondents, that is to say the two administrators of the estate. The only affidavit of service on record with respect to the application was sworn on 23rd October 2015 and relates to a notice for a hearing scheduled for 28th October 2015. It was on the basis of the service of that notice that I allowed the applicant to argue his application on the due date.
4. As the application was never served on the respondents, there cannot be any basis for me to grant the orders sought. The respondents were not confronted with the allegations against them, and they did not get a chance to respond to the allegations.
5. The application seeks removal of an administrator. The process of removal is akin to that of appointment. The consents of all concerned must be obtained, particularly if they rank equal or higher to the applicant in terms of entitlement to appointment. From the certificate of confirmation of grant, I have counted ten (10) survivors. None of them has filed any papers in support of the application.
6. I need not say more. The application before me, dated 1st April 2015 is misconceived. I should dismiss it. I hereby do so. There shall be no order as to costs.
DATED, SIGNED and DELIVERED at NAIROBI this 23RD DAY OF SEPTEMBER, 2016.
W. MUSYOKA
JUDGE