[2021] KEHC 4644 (KLR)
The court found that the citors, as creditors, had properly served the spouse and children of the deceased with a citation requiring them to apply for the grant of letters of administration. The citees failed to enter appearance or respond within the statutory period. Under section 66 of the Law of Succession Act,...
Source-derived case information.
- Citation
- [2021] KEHC 4644 (KLR)
- Parties
- Applicant: Misheck Maingi Muthuri; Applicant: Cyprian Iburi Ngarura; Applicant: Lawrence Kariinya Ibuuri; Respondent: Tabitha Itwaruchiu; Respondent: Nkirote Mugambi; Respondent: Tony Mugambi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause E006 of 2020
- Procedural Posture
- Succession Cause / Ruling on Application for Leave to Apply for Grant of Letters of Administration
- Outcome
- Application granted. Citors permitted to apply for grant of letters of administration intestate.
- Judges
- CA Otieno
- Legal Topics
- Succession, Letters of Administration, Creditor Priority, Citation Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Misheck Maingi Muthuri
Applicant
Cyprian Iburi Ngarura
Applicant
Lawrence Kariinya Ibuuri
Applicant
Tabitha Itwaruchiu
Respondent
Nkirote Mugambi
Respondent
Tony Mugambi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Leave to Apply for Grant of Letters of Administration
Legal Issues
- 1 Whether the citors, as creditors, are entitled to apply for grant of letters of administration intestate when those with prior entitlement have failed to do so.
- 2 Whether proper service of citation was effected on the citees and whether their failure to respond entitles the citors to seek the grant.
Ratio Decidendi
The court found that the citors, as creditors, had properly served the spouse and children of the deceased with a citation requiring them to apply for the grant of letters of administration. The citees failed to enter appearance or respond within the statutory period. Under section 66 of the Law of Succession Act, creditors rank after the spouse and beneficiaries in priority to apply for a grant, but if those with prior entitlement fail to act after being cited, creditors may be permitted to apply. The court was satisfied that all procedural requirements had been met and granted the citors leave to apply for the grant of letters of administration intestate to the estate of the deceased.
Court Disposition
Application granted. Citors permitted to apply for grant of letters of administration intestate.
Orders
- The citors are granted leave to lodge a petition for grant of letters of administration intestate to the estate of Mwongera Mugambi Rinturi at the Registry in Meru within 60 days.
- Upon lodging of the cause, this file shall be closed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCCESSION CAUSE NO. E006 OF 2020
IN THE MATTER OF THE LATE MWONGERA MUGAMBI RINGURI...............DECEASED
AND
IN THE MATTER OF CITATION
BETWEEN
MISHECK MAINGI MUTHURI
CYPRIAN IBURI NGARURA
LAWRENCE KARIINYA IBUURI.....................................................................................CITORS
AND
TABITHA ITWARUCHIU
NKIROTE MUGAMBI
TONY MUGAMBI..................................................................................................................CITEES
RULING
1. What is before the court for determination is the summons dated 2/3/2021 and seeking in the main that the citees having been served with the citation on the 4/2/2021 but had since then declined to enter appearance as commanded therein hence the citors have exercised their rights under the rules by bringing this application seeking, as persons entitled to apply for the grant, to be permitted to so apply.
2. The application is supported by the affidavit of the 1st applicant which reiterates the grounds on the face of the application then exhibited documents to show that the deceased sold to the applicant some three acres of land, that the sale was acknowledged in a succession cause NO. 213/1997 and therefore they desire that the estate be administered so that they pursue their claim against the estate but the persons entitled in priority to apply for grant are foot-dragging or just unwilling.
3. Despite service of the application, no responses were filed nor was an appearance made on the hearing date and, as a consequence, the matter proceeded ex-parte and stands to be decided on the basis of the material availed by the applicants only.
4. The claim by the applicants is apparent to be grounding the citation is on the premise that they are creditors. By virtue of section 66, in cases of intestacy, a creditor is entitled, in a lower priority, to apply and be granted letters of administration.
5. However, the creditor stands in a lower priority to the spouse, beneficiaries and the public trustee. It is in appreciation of that ranking of priorities that the three applicants here have directed their citation at the three citees as the spouse and two children, of the deceased, calling upon them to apply for the grant.
6. In the citation filed in court on the 23/12/2020, and shown by the affidavit of service sworn by Maitethia M’Rukunga on the 9/01/2021, to have been served on the citees, the citees were commanded to enter appearance thereto within 15 days. They have not. Having not so answered to the command, the law deems that the citors apply to court for orders that they be permitted to apply for the grant themselves.
7. Here I am satisfied that the citors, being creditors, served the citees who failed to enter appearance and therefore a pedestal has been created for the grant of orders that the citors may themselves apply for Grant of Letters of Administration Intestate to the estate of the deceased, MWONGERA MUGAMBI RINTURI.
8. I grant the permission sought and direct that the citors shall lodge the petition at the Registry in Meru, within 60 days from today. Once the cause is lodged, let this file be closed.
DATED SIGNED AND DELIVERED IN OPEN COURT THIS 09TH JULY 2021.
Patrick J.O Otieno
Judge
In presence of
MR. Otieno Obwanda for the Citor
No appearance for the citees.
Patrick J.O Otieno
Judge