[2014] KEHC 5865 (KLR)
The court held that the application for grant of letters of administration ad litem in respect of the estate of the deceased administrator (Charles Mwangi Gathuri) ought to have been filed independently and not within the succession cause relating to Andrew Githuri Mwangi. The applicant approached the court in the...
Source-derived case information.
- Citation
- [2014] KEHC 5865 (KLR)
- Parties
- Applicant: Joseph Kinyua Gathuri; Petitioner: Charles Mwangi Gathuri; Deceased: Andrew Githuri Mwangi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 84 of 1996
- Procedural Posture
- Succession Cause / Ruling on Application for Grant of Letters of Administration Ad Litem
- Outcome
- application dismissed
- Legal Topics
- Succession, Letters of Administration, 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
Joseph Kinyua Gathuri
Applicant
Charles Mwangi Gathuri
Petitioner
Andrew Githuri Mwangi
Deceased
Procedural Posture
Succession Cause / Ruling on Application for Grant of Letters of Administration Ad Litem
Legal Issues
- 1 Whether the applicant can file for grant of letters of administration ad litem in respect of the estate of the deceased administrator within the same succession cause.
- 2 Whether the application for substitution was properly filed in the current proceedings.
Ratio Decidendi
The court held that the application for grant of letters of administration ad litem in respect of the estate of the deceased administrator (Charles Mwangi Gathuri) ought to have been filed independently and not within the succession cause relating to Andrew Githuri Mwangi. The applicant approached the court in the wrong forum, as the proper procedure requires that a grant of letters of administration for the estate of the deceased administrator be obtained first in separate proceedings. Only after such a grant is issued can the applicant move for substitution in the original succession cause. The court found the application to be improperly filed and dismissed it accordingly.
Court Disposition
application dismissed
Orders
- The application for grant of letters of administration ad litem is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CASE NO. 84 OF 1996
IN THE MATTER OF THE ESTATE OF
ANDREW GITHURI MWANGI............................................... DECEASED
AND
CHARLES MWANGI GATHURI.............................................. PETITIONER
RULING
The Petitioner JOSEPH KINYUA GATHURI has moved this court for grant of letters of administration Ad litem for the estate of Charles Mwangi Gathuri in this cause which is in respect of the estate of ANDREW GATHURI MWANGI to enable him on his behalf and on behalf of the other beneficiaries proceed with the petition now pending before the court and that grant will enable him be substituted in place of the Petitioner herein.
It is supported by the annexed affidavit of the applicant wherein he deponed that he is one of the children/beneficiary of the estate of Andrew Gathuri Mwangi deceased where his brother Charles Mwangi Gathuri was the Petitioner and who died on 5th September 2012.
He deponed that the grant is only limited for purposes of proceedings with and concluding pending petition.
From the application before the court the only issue for determination is whether the applicant can file for grant of letters of administration Ad litem in respect of the estate of the Administrator in the succession cause wherein he is the administrator.
Section 67 of the Law of Succession Act provided that
“No grant of representation other than a limited grant for collection and preservation of assets shall be made until there has been published notice of the application for the grant inviting objection thereto to be made known to court within a specified period of not less than thirty days from the date of publication and that the period so specified has expired”.
It is therefore clear that the application for grant of letters of administration in respect of the estate of Charles Mwangi Gathuri ought to have been filed independently of the estate of Andrew Gathuri Mwangi and therefore the petitioner has approached the court in the wrong forum.
It is only after the grant of letters of administration have been issued to the applicant herein in respect of the estate of the petitioner that the same can move this court for substitution.
I have further noted that there are two applications pending before this court by the applicant these being the following:
a) Application dated 12/4/2010 in which the same sought the revocation of the grant.
b. Application dated 2/3/2012 for rectification of grant.
I therefore find that the application is improperly filed in this cause and would therefore dismiss the same with no order as to cost.
Dated, signed and delivered at Nyeri this 4th day of April 2014.
J. WAKIAGA
JUDGE
Miss Ndegwa for the appllicant.
Court: Ruling read in open court in the presence of Miss Ndegwa.
J. WAKIAGA
JUDGE