[2011] KEHC 1816 (KLR)
The court found that the surviving administrator failed to provide evidence that the estate of Cheboi Maina had been fully distributed prior to the death of Teriki Maina. In the absence of such evidence and given the applicants' averments, the court concluded that the applicants are entitled to be substituted as...
Source-derived case information.
- Citation
- [2011] KEHC 1816 (KLR)
- Parties
- Applicant: David Maina; Applicant: Esther Maina; Respondent: Surviving Administrator (name not specified)
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 145 of 1996
- Procedural Posture
- Probate and Administration / Ruling on Application for Substitution of Administrator
- Outcome
- application allowed
- Legal Topics
- Succession, Administration of Estates, Substitution of Administrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Maina
Applicant
Esther Maina
Applicant
Surviving Administrator (name not specified)
Respondent
Procedural Posture
Probate and Administration / Ruling on Application for Substitution of Administrator
Legal Issues
- 1 Whether the applicants are entitled to be substituted as administrators in place of the deceased administrator, Teriki Maina.
- 2 Whether the estate of Cheboi Maina had already been fully distributed, thereby rendering the application for substitution unnecessary.
Ratio Decidendi
The court found that the surviving administrator failed to provide evidence that the estate of Cheboi Maina had been fully distributed prior to the death of Teriki Maina. In the absence of such evidence and given the applicants' averments, the court concluded that the applicants are entitled to be substituted as administrators to continue with the administration of the estate. The application for substitution was therefore allowed to enable the proper and complete administration of the estate.
Court Disposition
application allowed
Orders
- The application dated 10th November, 2010 is allowed as prayed in paragraphs 2 and 3 thereof.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
PROBATE AND ADMINISTRATION NO. 145 OF 1996
IN THE MATTER OF THE ESTATE OF CHEBOI MANA
RULING
David Maina and Esther Maina seek leave of the court to substitute Teriki Maina one of the administrators of the Estate of Cheboi Maina (deceased). They make the application under Sections 56, 58, 66, 75A and 81 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. The grounds of the application are that the said Teriki Maina died on 1st January, 2010 before concluding the administration of the estate of Cheboi Maina and as Children of the said Teriki Maina they are entitled to take over the said administration.
The application is supported by an affidavit sworn by the applicants which affidavit is a mere elaboration of the grounds of the application.
The application is opposed by the surviving administrator by way of a replying affidavit sworn by him. He has deponed, inter alia, that at the time of the death of Cheboi Maina, he had already distributed his estate and the applicants had their shares of the estate registered in their names. In the premises, according to the surviving administrator, the applicants have no interest in the estate of the deceased Cheboi Maina.
When the application came up before me for hearing on 23rd May, 2011, the surviving administrator and his counsel did not attend. The application therefore proceeded ex-parte.
I have considered the application and the affidavits filed. I have also given due consideration to the record. Having done so, I take the following view of the matter. The surviving administrator did not exhibit the particulars of the property which he alleges had been distributed to the deceased administrator before the demise of the deceased Cheboi Maina. In any event neither his counsel nor himself attended at the hearing of the application to urge his side of the case.
Given the averments of the applicants and there being no evidence of distribution of the deceased’s estate, I have no difficulty in concluding that the order sought is deserved to enable the applicants with the surviving administrator continue with the further administration of the estate.
Accordingly, the application dated 10th November, 2010 is allowed as prayed in paragraphs 2 and 3 thereof.
The costs to be in the cause.
It is so ordered.
DATED AND DELIVERED AT ELDORETTHIS 5TH DAY OF AUGUST, 2011
F. AZANGALALA
JUDGE
Read in the presence of:-
Mr. Barasa H/B for Mr. Omboto for the Applicant and
Mr. Wabuyube H/B for Mr. Buluma for the Respondent
F. AZANGALALA
JUDGE
5TH AUGUST, 2011