[2009] KEHC 3461 (KLR)
The court found that the succession proceedings were defective due to the failure to disclose all beneficiaries, particularly the daughters of the deceased, and the lack of proper completion and registration of required forms. The protest against the confirmation of grant was not ready for determination as...
Source-derived case information.
- Citation
- [2009] KEHC 3461 (KLR)
- Parties
- Petitioner: William Kimibei Koromicha; Petitioner: Jackson Kipyegon A. Koromicha; Respondent: Kimurei Arap Leldaet
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 39 of 2005
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Protest
- Outcome
- Adjourned for regularization of proceedings; confirmation of grant not granted.
- Legal Topics
- Intestate Succession, Confirmation of Grant, Protest Procedure, Inclusion of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Kimibei Koromicha
Petitioner
Jackson Kipyegon A. Koromicha
Petitioner
Kimurei Arap Leldaet
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Protest
Legal Issues
- 1 Whether all beneficiaries, including daughters, have been properly disclosed and included in the succession proceedings.
- 2 Whether the protest against confirmation of grant regarding LR. Kericho/Kyogong/183 is properly before the court.
- 3 Whether the procedural requirements under the Law of Succession Act and relevant rules have been complied with.
Ratio Decidendi
The court found that the succession proceedings were defective due to the failure to disclose all beneficiaries, particularly the daughters of the deceased, and the lack of proper completion and registration of required forms. The protest against the confirmation of grant was not ready for determination as procedural requirements, including service and amendment of pleadings to include all beneficiaries, had not been met. The court directed the administrators to regularize the proceedings by amending the application for confirmation of grant to include all survivors, completing and registering the necessary forms, and ensuring proper service of the protest. The matter was adjourned to...
Court Disposition
Adjourned for regularization of proceedings; confirmation of grant not granted.
Orders
- Administrators to amend the application for confirmation of grant to include all survivors, including daughters.
- Form P&A 57 to be signed, sealed, and registered at the lands department.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
SUCCESSION CAUSE 39 of 2005
TAPNYOBI CHERMURER LELDAYET ………...… DECEASED
VERSUS
1. WILLIAM KIMIBEI KOROMICHA ………………PETITIONER
2. JACKSON KIPYEGON A. KOROMICHA
RULING
I: confirmation of grant intestate
1. Tapnyolei Chemurer Leldayet alias Tapnyobi wife of Arap Leldaet died aged 78 years old on the 25th May, 2004. She was survived with sons and daughters and one son who predeceased her.
2. The cause of death was malaria.
3. She held the following pieces of assets in the way of land being:-
Kericho/Kyogong/673 -1. 1ha
Kericho/Kyogong/686 - 01. 4ha
Kericho/Kyogong/687 -2. 6 ha
Kericho/Kyogong/183 -4. 00ha
Kericho/Kyogong/199 -5. 2ha
Kericho/Kyogong/196 -0. 48ha
4. She left no will to dispose these assets. Letters of grant intestate were prayed for by her survivors being:-
a) William Kimirer Koromicha ages unknown.
b) Stephen Kipchumba Koromo – he(deceased) represented by Esther Cherono Koromicha w/o William Kimibei Koromicha
c) Jackson Kipyegon A. Koromicha.
5. The relationships not disclosed nor their ages.
6. It is clear that the deceased had daughters who in effect had not been mentioned in this succession cause. Form P&A 57 being the Guarantee by personal sureties was never sealed and registered with the registrar of documents at the lands department.
7. Regardless of this which I am sure the parties will regularize in due course a grant of probate intestate or Form P&A 41 was issued to two administrators namely Jackson K.A. Koromicha and Wiliam K. Koromicha on the 10th November, 2005 (Apondi J).
8. The law requires for the administrators to gathers the estate of the deceased and to establish what debts requires to be paid and what appointment of the assets are to go to the survivors.
9. On the 16th November, 2006 the administrator through their advocate filed chamber summons for confirmation of grant. This should actually have been summons for confirmation of grant noting that the applicability of the civil procedure act does not actually apply herein except in particular cases as stated in rules 63(1) of the Laws of Succession Act Cap 160 Law of Kenya.
II: The protest
10. When the said application of 7th November, 2008 came up for confirmation of grant, Kimurei Arap Leldaet filed a protest against that confirmation under rule 40(6) of the Law of Succession.
11. Namely the person named herein wishing to object to the proposed confirmation of grant is to file in duplicate an affidavit in protest in form P&A 10. The administrations are to be forwarded these protests by the registrar. Namely under rule 40(5) a consent is to be entered and a notice in Form III to the caveator (protestor) warning him of the making of the grant and if he wishes to object their Form 10 is to be filed.
12. In this case form P&A 10 has been accordingly field as there is an affidavit per se filed but no summons, the matter is to be placed before this court for direction under Form 74.
13. The parties are now before me.
III: Directions
14. The proceedings before me are defective in want and form. I direct that from P&A 5 discloses all the summons including the daughters to the deceased their ages and relationship to the deceased.
15. I further direct that form P&A 57 be signed, sealed and delivered for registration at the documentations records with the lands department.
16. That the application for confirmation of grant be amended to include the survivors who had been left out.
IV:Issue
17. The issue before me concerns one parcel of land being LR. Kericho/Kyogong/183 being 4. 0ha. One Kimurei Arap Leldaet the protestor herein claims this amount of land should completely go to him.
18. The court is required under rules 41(1) of the law of succession act to read the application for confirmation to all the persons concerned then read the protest whether such persons appear personally, by advocate or by a representative.
19. The court then would identify the shares of each persons where a question arises as may be in this case other parties of the assets may be confirmed. What is disputed is required to hearing under order 36 r 1 Civil Procedure Rules subjected to provisions of section 71(2) and be so heard in a separate cause.
20. I accordingly find that the proceedings for a protest is not yet ready. The Registrar at the Principal Registry is required to the served the protest filed in the principal court and service the respondent administrators as the administrator require to amend their pleadings and involve all persons herein. I will adjourn under rule 41(2) for parties to regularize this cause.
21. The costs will be in the cause.
DATED this15th day of June, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
A.N. Matwere instructed by the firm of M/S Matwere & Co. advocates for the Petitioner.
J.R. Kimeto instructed by the firm of M/S Bett & Co. advocates for the objector