[2022] KEHC 2982 (KLR)
The court found that the applicants had made all reasonable efforts to obtain the consent of their siblings for the appointment of administrators, but the siblings refused to cooperate or participate. The absence of a Replying Affidavit or opposition from the respondents indicated that the application was unopposed....
Source-derived case information.
- Citation
- [2022] KEHC 2982 (KLR)
- Parties
- Applicant: Betty Atemba Nacheri; Applicant: Catherine Atieno Mayenga; Respondent: Julia Namwenda Nacheri; Respondent: Paul Akolo Nacheri; Respondent: Samwel William Wamunga; Respondent: James Robert Onyango
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 002 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Appointment of Administrators
- Outcome
- application allowed
- Judges
- TM Matheka
- Legal Topics
- Succession Administration, Appointment of Administrators, Consent of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Betty Atemba Nacheri
Applicant
Catherine Atieno Mayenga
Applicant
Julia Namwenda Nacheri
Respondent
Paul Akolo Nacheri
Respondent
Samwel William Wamunga
Respondent
James Robert Onyango
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Appointment of Administrators
Legal Issues
- 1 Whether the applicants should be appointed as administrators of the estate in the absence of consent from all beneficiaries.
- 2 Whether the estate can remain without an administrator pending resolution among beneficiaries.
Ratio Decidendi
The court found that the applicants had made all reasonable efforts to obtain the consent of their siblings for the appointment of administrators, but the siblings refused to cooperate or participate. The absence of a Replying Affidavit or opposition from the respondents indicated that the application was unopposed. The court held that the estate could not remain without an administrator as this would expose it to potential waste. The court exercised its inherent powers under Rule 73 to ensure the estate was properly administered and appointed the applicants as joint administrators, noting that other beneficiaries would still have an opportunity to participate in subsequent proceedings.
Court Disposition
application allowed
Orders
- Betty Atemba Nacheri and Catherine Atieno Mayenga are appointed as joint administrators of the estate of Shem Nacheri Wamunga (deceased).
- A grant of letters of administration to issue accordingly.
Full Case Text
Judgment text and source record
19 paragraphs
In re Matter of the Estate of Shem Nacheri Wamunga (Deceased) (Miscellaneous Application 002 of 2022) [2022] KEHC 2982 (KLR) (2 June 2022) (Ruling)
Neutral citation: [2022] KEHC 2982 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Application 002 of 2022
TM Matheka, J
June 2, 2022
IN THE MATTER OF THE ESTATE OF SHEM NACHERI WAMUNGA (DECEASED)
Ruling
1. Shem Nacheri Wamunga died on 5th October 2021, and according to the letter from the Assistant Chief Afraha Sub Location, he committed suicide. His wife having pre-deceased him he was survived by seven (7) beneficiaries being his children.
2. On 1st February 2022 Betty Atemba Nacheri and Catherine Atieno Mayenga filed Summons dated even date seeking the consent to be appointed as the Administrators of the estate under rules 49 and 73 of the P & A rules from the Summons, their siblings Julia Namwenda Nacheri, Paul Akolo Nacheri, Samwel William Wamunga, James Robert Onyango had refused to attend a meeting set on 28th December 2021 to discuss the appointment of administrators hence the application. They had also demonstrated their unwillingness to cooperate with the applicants on the issue of appointment of administrators. The application was served on the counsel for the four (4), the firm of Ochieng Gai & Advocates.
3. The matter came up twice for hearing, Mr. Gai sought time to settle the issue with the family, this was on 10th March 2022. On 4th April 2022. Mr. Gai requested for time to place his Replying Affidavit on the file. I directed that the Replying Affidavit be placed on the file at the Close of Business on that day and fixed the Ruling for 2nd June 2022.
4. As at the time I am writing this Ruling, there is no Replying Affidavit from the firm of Ochieng Gai & Co. for respondents. Ideally the application is not opposed.
5. Nevertheless, I have perused the Supporting Affidavit of applicants, and the annexures therewith. It is evident that they have done everything possible in the circumstances to get the consent of their siblings. They have refused, and it is apparent that they will not give their consent.
6. Rule 73 of the P&A rules save the inherent powers of court to process of the court. Rule 49 gives provides for applications otherwise not provided for to be filed by way of Summons supported by affidavit.
7. The estate cannot remain without an administrator otherwise it may be exposed to waste. In any event the other beneficiaries will still have the opportunity to participate in the proceedings once they are filed.
8. Clearly the application is merited. The applicants can take leadership and lead this process.
9. I therefore allow the application and direct that Betty Atemba Nacheri and Catherine Atieno Mayenga be appointed as joint administrators of the estate of the deceased, and a grant to issue accordingly.
Dated, Signed and Delivered virtually this 2ndday of June, 2022. Mumbua T MathekaJudgeIn the presence of;CA EdnaOmwenyo & Co. Advocates, for applicant