[2018] KEHC 6414 (KLR)
The court found that the citor had made all reasonable efforts to serve the citees, and upon failure of personal service, was granted leave to serve by advertisement in two daily newspapers. The citees failed to enter appearance within the statutory period after such service. In accordance with Section 66 of the Law...
Source-derived case information.
- Citation
- [2018] KEHC 6414 (KLR)
- Parties
- Applicant: Zaina Rashid Mbonika; Respondent: Jenniffer Mary Jagire; Respondent: Patrick Nyamai; Respondent: Julius Nyamai; Respondent: Jackline Nyamai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 863 of 2016
- Procedural Posture
- Succession Cause / Ruling on Citation and Substituted Service
- Outcome
- application allowed
- Legal Topics
- Probate and Administration, Citation Procedure, Letters of Administration, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zaina Rashid Mbonika
Applicant
Jenniffer Mary Jagire
Respondent
Patrick Nyamai
Respondent
Julius Nyamai
Respondent
Jackline Nyamai
Respondent
Procedural Posture
Succession Cause / Ruling on Citation and Substituted Service
Legal Issues
- 1 Whether the citor is entitled to petition for a full grant of letters of administration intestate after the citees failed to enter appearance.
- 2 Whether substituted service by advertisement was sufficient to notify the citees as required by law.
Ratio Decidendi
The court found that the citor had made all reasonable efforts to serve the citees, and upon failure of personal service, was granted leave to serve by advertisement in two daily newspapers. The citees failed to enter appearance within the statutory period after such service. In accordance with Section 66 of the Law of Succession Act and Rule 22(5)(a) of the Probate and Administration Rules, the citor, having complied with the procedural requirements and the citees having forfeited their right of priority by inaction, is entitled to petition for a full grant of letters of administration intestate. The absence of consent from the citees does not bar the citor from proceeding, as the law...
Court Disposition
application allowed
Orders
- The citor is directed to file a petition for a full grant of letters of administration intestate in respect of the deceased’s estate within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
SUCCESSION CAUSE NO. 863 OF 2016
IN THE MATTER OF THE ESTATE OF SHEMMARCAAD
NYAMAIALIAS SHEM M. OWITINYAMAIALIAS
SHEM M. O NYAMAI (DECEASED)
RULING
1. By a citation filed in court on 19th May 2016 pursuant to Section 62 of the Law of Succession and rules 21, 22 and 23 of the Probate and Administration rules, Zaina Rashid Mbonika herein referred to as the citor, cited Jenniffer Mary Jagire, Patrick Nyamai, Julius Nyamai and Jackline Nyamai being wife and children respectively to the deceased herein Shem Marcaad Nyamai alias Shem M. Owiti to show cause why they should not cause an appearance and accept or refuse to take out letters of administration in respect of the aforesaid estate and in default the citor to take out the same being a wife to the deceased.
2. Every effort to serve the citees having failed, the citor moved the court vide a notice of motion dated 15th November 2017 seeking to effect substituted service by way of advertisement. Subsequently, the court granted the orders sought on 9th March 2018 directing service of the citation through two separate daily newspapers within 15 days. Consequently, service was done through the daily standard and nation newspapers of 27th March, 2018.
3. Despite service by way of advertisement, the citees did not respond hence the prayer to allow the citor to institute a petition for a full grant. Pursuant to rule 21(5) of the Probate and Administration rules, the citees are supposed to have entered appearance within 15 days which period has since expired without any appearance. The net effect therefore is and in compliance with rule 22(5) (a) of Probate and Administration rules, the citor is entitled to petition for a full grant to herself.
4. Having been given an opportunity to exercise their right in order of priority under Section 66 of the Law of Succession to take out a grant of representationand the same having failed, this court has no choice but to direct the citor herein to file a petition for a full grant of letters of administration intestate in respect of the deceased’s estate within 30 days from the date of delivery of this ruling the absence of consent from the citees/beneficiaries notwithstanding.
Order accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 30TH DAY OF MAY, 2018.
J.N. ONYIEGO (JUDGE)
In the presence of:
M/S Nyaguthie holding brief for..........Counsel for the applicant
Edwin....................................................................Court Assistant