[2021] KEHC 5728 (KLR)
The court found that the revocation of the grant was improper because the sole administratrix had died prior to the issuance of the notice to show cause, and there was no evidence that the notice was served on any beneficiary. As a result, the orders revoking the grant and closing the file were set aside. However,...
Source-derived case information.
- Citation
- [2021] KEHC 5728 (KLR)
- Parties
- Applicant: Viren Kiritkant Motichand Shah; Respondent: Alka Kiritkant Motichand Shah (deceased)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 29 of 2012
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Revocation of Grant and for Fresh Grant
- Outcome
- Application allowed in part; previous revocation order set aside; previous grant revoked as inoperative; fresh grant to issue to applicant.
- Judges
- JO Nyarangi
- Legal Topics
- Succession, Grant of Letters of Administration, Revocation of Grant, Deceased Estate Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Viren Kiritkant Motichand Shah
Applicant
Alka Kiritkant Motichand Shah (deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Revocation of Grant and for Fresh Grant
Legal Issues
- 1 Whether the revocation of the grant of representation was proper in light of the death of the sole administratrix and lack of service of notice to show cause.
- 2 Whether a fresh grant of letters of administration should issue to the applicant as the sole surviving beneficiary.
Ratio Decidendi
The court found that the revocation of the grant was improper because the sole administratrix had died prior to the issuance of the notice to show cause, and there was no evidence that the notice was served on any beneficiary. As a result, the orders revoking the grant and closing the file were set aside. However, since the sole administratrix was deceased, the existing grant had become useless and inoperative under section 76(e) of the Law of Succession Act. The court therefore revoked the previous grant and ordered that a fresh grant of letters of administration debonis non be issued to the applicant, the only surviving beneficiary, as the sole administrator. The applicant was directed...
Court Disposition
Application allowed in part; previous revocation order set aside; previous grant revoked as inoperative; fresh grant to issue to applicant.
Orders
- The orders of 22nd September 2017 revoking the grant and closing the file are set aside.
- The grant issued to Alka Kiritkant Motichand Shah on 25th May 2012 is revoked as useless and inoperative.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
SUCCESSION CAUSE NO 29 OF 2012
IN THE MATTER OF THE ESTATE OF THE LATE
KIRITKANT MOTICHAND RAICHAND SHAH (DECEASED)
VIREN KIRITKANT MOTICHAND SHAH..........................APPLICANT
RULING
1. The deceased herein died intestate on 16th November, 2011 leaving behind Alka Kiritkant Motichand Shah ( widow ) and Viren Kiritkant Motichand shah(son) as the only survivors and therefore beneficiaries to the estate. Among the assets left behind are shares in Oceanview Maisonettes Ltd and Pristine Management Ltd. On 7th February 2012, the widow petitioned for a grant of representation. The same was granted on 25th May, 2012 and issued on 28th May 2012.
2. Since 28th May, 2012, the file remained dormant with no action being taken to facilitate confirmation of the grant. Consequently, the court issued notice to show cause why the grant could not be revoked under Section 73 for want of prosecution. The applicant having failed to turn up, the court revoked the grant on 22nd September 2017 under section 76 (d)(i) of the Law of Succession Act.
3. Upon discovering that the grant had been revoked, Viren Kiritkant Motichand Shah a son to the deceased moved the court vide a Chamber Summons dated 21st April, 2021 seeking orders that; the orders of 22nd September, 2017 revoking the grant and closing the file be set aside; upon setting aside the said orders, the grant issued to Alka Kiritkant Motichand Shah on 25th May,2012 be revoked as the same has become useless and inoperative; upon revocation, a fresh grant do issue to the applicant and the same be confirmed.
4. The application is based on grounds set out on the face of it and an affidavit sworn on 21st April, 2021 by the applicant. Basically, the applicant’s case is that, the cause for the delay in prosecuting the case was occasioned by the death of his mother the sole administratrix on 25th February, 2016. That by the time the grant was revoked the holder of the grant had already died. That he was not aware of the notice to show cause. He further stated that the grant has since become inoperative and useless hence the need for a fresh one to issue to him as the sole beneficiary and therefor administrator.
5. I have considered the application herein and the affidavit in support. It is clear from the attached death certificate of Alka Kiritkant Motichand Shah that the administratrix in this file died on 25th February, 2016. Apparently, there is no proof that the notice to show cause against which the grant was revoked and file closed was served upon any beneficiary. The administrator had since died hence the notice to show cause could not have been served upon her. For that reason, I am satisfied that there is sufficient ground to set aside the orders of this court made on 22nd September, 2017 and reinstate the petition and the grant thereof.
6. However, taking into account that the sole administratrix is deceased, under section 76 (e) of the Law of Succession, the grant has become useless and inoperative. Accordingly, the same is revoked and a grant of letters of administration debonis non to issue to the applicant the only surviving beneficiary as the sole administrator. Upon issuance of the said grant, the administrator to apply for confirmation of the grant.
Order accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 30TH DAY OF JUNE 2021
J. N. ONYIEGO
JUDGE