[2014] KEHC 3368 (KLR)
The court held that the only application envisaged under Section 76 of the Law of Succession Act is for revocation of grant, not for substitution of administrators. The applicants failed to comply with the mandatory procedure under Rule 44 of the Probate and Administration Rules, which requires service of the...
Source-derived case information.
- Citation
- [2014] KEHC 3368 (KLR)
- Parties
- Applicant: Applicants (names not specified); Respondent: Current Administrators (names not specified)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1434 of 2008
- Procedural Posture
- Succession Cause / Ruling on Application for Substitution of Administrators
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Revocation of Grant, Administration of Estates, Probate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicants (names not specified)
Applicant
Current Administrators (names not specified)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Substitution of Administrators
Legal Issues
- 1 Whether the court can substitute serving administrators without revoking the grant under Section 76 of the Law of Succession Act.
- 2 Whether the procedure under Rule 44 of the Probate and Administration Rules was complied with.
Ratio Decidendi
The court held that the only application envisaged under Section 76 of the Law of Succession Act is for revocation of grant, not for substitution of administrators. The applicants failed to comply with the mandatory procedure under Rule 44 of the Probate and Administration Rules, which requires service of the application on all affected persons and directions by the court. Without revocation of the grant, substitution of administrators is not legally permissible. Consequently, the application for substitution was dismissed for being procedurally and substantively incompetent.
Court Disposition
application dismissed with costs
Orders
- The Chamber Summons dated 24th January 2014 is dismissed with costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
SUCCESSION CAUSE NO. 1434 OF 2008
IN THE MATTER OF ROSE ALUSO ODONGO – DECEASED
RULING
1. The application dated 24th January 2014 is brought under Section 76 of the Law of Succession Act. It seeks substitution of the current administrators of the estate with another set of administrators.
2. I have carefully gone through the application. To my mind the applicants are asking the court to revoke the grant made to the current administrators on the ground that they have failed to proceed diligently with the administration of the estate.
3. Rule 44 of the Probate and Administration Rules governs the procedure to be followed in respect of applications founded on Section 76 of the Law of Succession Act. The matter is set down for directions by virtue of Rule 44(3) for the purpose of the court directing service of the application on all affected persons. After the service ordered under Rule 44(3), the matter is once placed before the judge for directions on the mode of hearing. There has been no compliance with Rule 44.
4. In any event the only application envisaged under Section 76 of the Law of Succession Act is for revocation of grant, and not for substitution. Serving administrators cannot be substituted otherwise than by orders made on the basis of Section 76 of the Act following revocation of the grant made to them.
5. I am unable to grant the orders sought on the basis of the Chamber Summons dated 24th January 2014. I will therefore dismiss the same with costs.
DATED, SIGNED and DELIVERED at NAIROBI this 31ST DAY OF July 2014.
W. MUSYOKA
JUDGE