[2016] KEHC 2017 (KLR)
The court found that the application, though procedurally irregular in seeking removal of an administrator through rectification of the certificate of confirmation of grant, was unopposed as the respondent failed to respond or attend court. The court exercised its discretion to grant the orders sought, rectifying...
Source-derived case information.
- Citation
- [2016] KEHC 2017 (KLR)
- Parties
- Applicant: Applicant (Name not provided); Respondent: Respondent (Name not provided)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2184 of 1994
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Grant
- Outcome
- Application granted as unopposed; grant and certificate of confirmation rectified; cause transferred to Machakos High Court.
- Judges
- DN Musyoka
- Legal Topics
- Rectification of Grant, Removal of Administrator, Probate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicant (Name not provided)
Applicant
Respondent (Name not provided)
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Grant
Legal Issues
- 1 Whether the removal of an administrator can be effected through an application for rectification of a certificate of confirmation of grant.
- 2 Whether the non-cooperation of an administrator justifies their removal from administration of the estate.
Ratio Decidendi
The court found that the application, though procedurally irregular in seeking removal of an administrator through rectification of the certificate of confirmation of grant, was unopposed as the respondent failed to respond or attend court. The court exercised its discretion to grant the orders sought, rectifying both the grant and the certificate of confirmation to remove the non-cooperating administrator. Additionally, the court ordered the transfer of the cause to the High Court at Machakos for final disposal, as the estate assets are located in Machakos and Makueni Counties.
Court Disposition
Application granted as unopposed; grant and certificate of confirmation rectified; cause transferred to Machakos High Court.
Orders
- The grant and certificate of confirmation of grant shall be rectified to remove the non-cooperating administrator.
- The cause is transferred to the High Court of Kenya at Machakos for final disposal.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 2184 OF 1994
IN THE MATTER OF THE ESTATE OF WILSON NDUMBI KATHESYE (DECEASED)
RULING
1. The application for determination is a summons dated 17th August 2015. It seeks rectification of the grant so as to remove the name of one of the administrators on the grounds that she has refused to cooperate with the applicant to complete administration of the estate.
2. There is an affidavit of service on record evidencing service of a notice of the hearing scheduled for 2nd February when the matter was coming up. On the due date the respondents did not attend court.
3. have noted that the principal prayer is for the removal of an administrator. Such orders ought not to be sought by way of an application for rectification of a certificate of confirmation of the grant. The certificate does not appoint the administrator, it merely confirms the appointment.
4. As the application was served and the respondent did not respond to it or attend court when it was due for hearing, the application is then deemed as not opposed.
5. Consequently, I do hereby grant it in the terms proposed. The grant herein as well as the certificate of confirmation of grant shall be rectified accordingly. I shall also order transfer of the cause herein to the High Court of Kenya at Machakos for final disposal as the assets herein are situate within the Machakos and Makueni Counties.
DATED, SIGNED and DELIVERED at NAIROBI this 18TH DAY OF NOVEMBER, 2016.
W. MUSYOKA
JUDGE