[2006] KEHC 584 (KLR)
The court found that the petition for limited letters of administration ad litem was fatally defective both in form and substance. The petitioner failed to cite the correct legal provisions under which the application was brought, and the supporting affidavit did not provide sufficient evidence regarding the status...
Source-derived case information.
- Citation
- [2006] KEHC 584 (KLR)
- Parties
- Applicant: Patrick Omondi Oguna; Respondent: Estate of Paul Odero Oguna (Deceased)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 180 of 2003
- Procedural Posture
- Succession Cause / Ruling on Petition for Limited Grant of Letters of Administration Ad Litem
- Outcome
- petition struck out as incompetent and fatally defective
- Legal Topics
- Probate and Administration, Letters of Administration, Procedural Defects, Estate Representative Substitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Omondi Oguna
Applicant
Estate of Paul Odero Oguna (Deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Petition for Limited Grant of Letters of Administration Ad Litem
Legal Issues
- 1 Whether the petition for limited letters of administration ad litem was properly before the court.
- 2 Whether the petition complied with the mandatory procedural and substantive requirements under the Probate and Administration Rules.
- 3 Whether the petitioner was entitled to be granted the orders sought in the absence of proper citation of legal provisions and supporting evidence.
Ratio Decidendi
The court found that the petition for limited letters of administration ad litem was fatally defective both in form and substance. The petitioner failed to cite the correct legal provisions under which the application was brought, and the supporting affidavit did not provide sufficient evidence regarding the status or use of any previously granted letters of administration. The court emphasized that compliance with procedural and substantive requirements is mandatory, and that it cannot grant relief as a matter of course where the application is incompetent. The failure of counsel to properly attend to the matter and the absence of necessary legal citations and evidence led the court to...
Court Disposition
petition struck out as incompetent and fatally defective
Orders
- The petition for limited letters of administration ad litem is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MOMBASA
SUCCESSION CAUSE180 OF 2003
IN THE MATTER OF: PAUL ODERO OGUNA (DECEASED)
PETITION FOR LETTER OF ADMINISTRATION AD LITEM
R U L I N G
In a petition said to be sworn before a Commissioner for Oaths on 5th December 2006, Patrick Omondi Oguna hereinafter referred to as the Petitioner sought to be granted limited letters of administration over the Estate o..f Paul Odero Oguna, deceased. In an affidavit he swore on the same date he stated that he intended to sue on behalf of the deceased’s estate to recover damages for injuries arisingout of a road traffic accident in which the deceased perished.
When the petition came up for hearing before this court, Mr. Mkan learned advocate for the petitioner informed this court that the petition is filed pursuant to rules 7 and 12 of the Probate and Administration rules. He argued that the petitioner wanted to substitute the deceased in pursuing damages on behalf of the estate of Paul Odero Oguna.
I have considered the oral submissions made by the Petitioner’s learned counsel. I have also perused the petition and the supporting affidavit. The petition itself is fatally defective in form and substance. The provision of the law in which it is brought under are not cited by the petitioner. The learned counsel did not help matters when he cited the wrong provisions of the law. If indeed the late Paul Odero Oguna was granted letters of administration on 11th September 2003, why is it that the Petitioner has not availed to this court the extent in which he acted on those letters. I am of the strong view that Mr. Mkan, the Petitioner’s learned Counsel did not seriously attend to this matter. He took it for granted that this court would grant his client the prayers sought in the petition as a matter of course. This is not the position. In the end I strike out the petition for being incompetent and fatally defective with no order as to costs.
Dated and delivered at Mombasa this 13th day of December 2006.
J.K. SERGON
J U D G E