[2010] KEHC 2138 (KLR)
The court held that under section 58 of the Law of Succession Act, where a minor is a survivor to a deceased estate, there must be at least two administrators to create a resulting trust. Since the widow (one of the original administrators) had died, the surviving co-administrator could not continue alone. The...
Source-derived case information.
- Citation
- [2010] KEHC 2138 (KLR)
- Parties
- MISSING: George Kiplagat Tallam (Deceased); Applicant: Widow of George Kiplagat Tallam (deceased, former administratrix); Applicant: Brother to the deceased (co-administrator/applicant); Respondent: Elder brother to the deceased (proposed new co-administrator)
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2 of 2007
- Procedural Posture
- Succession Cause / Ruling on Application for Substitution of Administrator (de Bonis Non)
- Outcome
- Application granted as prayed. New administrator enjoined. New grant to issue.
- Legal Topics
- Succession, Probate and Administration, Appointment of Administrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Kiplagat Tallam (Deceased)
MISSING
Widow of George Kiplagat Tallam (deceased, former administratrix)
Applicant
Brother to the deceased (co-administrator/applicant)
Applicant
Elder brother to the deceased (proposed new co-administrator)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Substitution of Administrator (de Bonis Non)
Legal Issues
- 1 Whether the applicant can be the sole administrator of the estate where a minor is a survivor.
- 2 Whether the substitution of the deceased widow with the elder brother as co-administrator is proper under the Law of Succession Act.
Ratio Decidendi
The court held that under section 58 of the Law of Succession Act, where a minor is a survivor to a deceased estate, there must be at least two administrators to create a resulting trust. Since the widow (one of the original administrators) had died, the surviving co-administrator could not continue alone. The application to substitute the deceased widow with the elder brother as co-administrator was therefore granted to comply with the statutory requirement. The court ordered that a new grant issue accordingly.
Court Disposition
Application granted as prayed. New administrator enjoined. New grant to issue.
Orders
- The application for substitution of administrator is granted.
- The elder brother is enjoined as co-administrator.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Succession Cause 2 of 2007
IN THE MATTER OF THE ESTATE OF GEORGE KIPLAGAT TALLAM.........DECEASED
RULING
Application De Bonis non
I.Background
(1) In this law of succession probate and administration - file the
original deceased who passed away was a police officer aged 47 years old on the 28th January 2003, of Malaria. The said deceased left surviving him a widow then aged 35 years old and a daughter aged 5 years old.
(2) Temporary letters of grant was applied for, 4 years later in
which the widow and the brother to the deceased were
appointed administratrix /administrator. In this matter the
letters was made on the 19th March 2008.
(3)Unfortunately the said widow also passed away on
1st September 2009 aged 38 old of pneumonia. The
Co-administrator now applies for a De Bonis non to appoint an
administrator for the unadministered estate.
II. Application De Bonis non
(4)The said applicant prayed that his elder brother be substituted as the co-administrator by application of 13th January 2010.
III.Findings
(5)The law requires that the said applicant, as an administrator, cannot represent the estate alone. That there must be two administrators. The reasons being that under section 58 of the law of Succession Act, there must be two administrator, where a minor is a survivor to a deceased estate. This is to create a Resulting Trust. If the survivor was an adult the
Co -administrator would have continued with the estate alone.
(6)I hereby find that the application be and is hereby granted as prayed. The new administrator is enjoined. New grant to issue.
(7)There will be costs in the estate.
DATEDTHIS 21STDAY OFAPRIL,2010 AT ELDORET.
M.A. ANG’AWA`
JUDGE