[2009] KEHC 2571 (KLR)
The court found that the respondent, despite being cited, failed to enter appearance or show cause and did not instruct his advocates to participate in the proceedings. As a result, the applicant was entitled to proceed with the application for grant of letters of administration intestate for the estate of the...
Source-derived case information.
- Citation
- [2009] KEHC 2571 (KLR)
- Parties
- Applicant: Boaz Oluoch Otieno; Respondent: Elly Omollo Asewe
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 281 of 2003
- Procedural Posture
- Succession Cause / Ruling on Application for Grant of Letters of Administration
- Outcome
- Application allowed. Applicant permitted to apply for grant of letters of administration intestate. Costs awarded to applicant.
- Legal Topics
- Grant of Letters of Administration, Citation Procedure, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boaz Oluoch Otieno
Applicant
Elly Omollo Asewe
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Grant of Letters of Administration
Legal Issues
- 1 Whether the applicant should be allowed to apply for grant of letters of administration intestate for the estate of John Otieno Mbero.
- 2 Whether the applicant is entitled to costs of the application.
Ratio Decidendi
The court found that the respondent, despite being cited, failed to enter appearance or show cause and did not instruct his advocates to participate in the proceedings. As a result, the applicant was entitled to proceed with the application for grant of letters of administration intestate for the estate of the deceased. The court exercised its discretion to allow the applicant to apply for the grant and awarded him the costs of the application.
Court Disposition
Application allowed. Applicant permitted to apply for grant of letters of administration intestate. Costs awarded to applicant.
Orders
- The applicant is allowed to apply for grant of letters of administration intestate of the estate of John Otieno Mbero, deceased.
- The applicant shall have the costs of this application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Succession Cause 281 of 2003
IN THE MATTER OF THE ESTATE OF JOHN OTIENO MBERO (DECEASED)
AND
BOAZ OLUOCH OTIENO…………………………………. CITOR
AND
ELLY OMOLLO ASEWE …………………………………… OBJECTOR
RULING
On 13th April 2004, the applicant filed an application by way of a Notice of Motion brought under Section 3A of the Civil Procedure Act. He sought the following orders.
“1. That the applicant be granted orders to acquire title
deed on land parcel No. West
Kasipul/Kasimba/210.
2. That the applicant be allowed to file a full grant/letters of administration.
3. That the application be provided for.” (sic)
In his affidavit in support of the application the applicant stated that he filed a citation against the respondent who had since refused to enter appearance of show cause why the applicant could not proceed to obtain from the court necessary orders. He added that the deceased had fraudulently acquired a title deed from the applicant’s brothers and the applicant now want to pursue the matter. The property in dispute is the parcel of land known as WEST KASIPUL/KASIMBA/210.
Although the respondent appointed M/s Kimanga & Company Advocates on 12th July 2004, he did not give any instructions to the said advocate. As a result when the application herein came up for hearing on 13th of March 2009 the said advocates informed the court that he had filed a notice of withdrawal due to lack of instructions from their client.
From the foregoing I believe the respondent is not keen on applying for letters of administration in respect of the estate of John Otieno Mbero, deceased.In the circumstances the applicant is allowed to apply for grant of letters of administration intestate of the estate of the deceased. The applicant shall have the costs of this application.
DATED, SIGNED AND DELIVERED AT KISII THIS 28TH DAY OF JULY, 2009.
D. MUSINGA
JUDGE.