[2005] KEHC 2080 (KLR)
The court found that Section 74 of the Law of Succession Act does not empower it to substitute or appoint a new administrator, as it only allows for rectification of errors in grants. The applicant failed to cite any other legal provision that would enable the court to exercise such jurisdiction. Furthermore, the...
Source-derived case information.
- Citation
- [2005] KEHC 2080 (KLR)
- Parties
- Applicant: Fanice Nasipwondi Wakwabubi; Respondent: Estate of Yonah Makhanu Butali; Respondent: Daniel Namwenya Makhanu (deceased)
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 57 of 1998
- Procedural Posture
- Probate and Administration Cause / Ruling on Application to Be Made Co Administrator
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Letters of Administration, Substitution of Administrator, Interest in Estate, Non Disclosure, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fanice Nasipwondi Wakwabubi
Applicant
Estate of Yonah Makhanu Butali
Respondent
Daniel Namwenya Makhanu (deceased)
Respondent
Procedural Posture
Probate and Administration Cause / Ruling on Application to Be Made Co Administrator
Legal Issues
- 1 Whether the applicant is entitled to be made a co-administrator of the estate of Yonah Makhanu Butali.
- 2 Whether Section 74 of the Law of Succession Act provides a basis for the orders sought.
- 3 Whether the applicant disclosed sufficient interest in the estate to warrant the orders sought.
Ratio Decidendi
The court found that Section 74 of the Law of Succession Act does not empower it to substitute or appoint a new administrator, as it only allows for rectification of errors in grants. The applicant failed to cite any other legal provision that would enable the court to exercise such jurisdiction. Furthermore, the applicant did not adequately disclose her relationship to the deceased, Yonah Makhanu Butali, nor did she provide evidence of her interest in the estate, such as a copy of the limited grant of administration. The respondents' opposition, while based on factual matters, was not properly presented by affidavit and thus held little evidential value. Ultimately, the application was...
Court Disposition
application dismissed with costs to the respondents
Orders
- The chamber summons is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
P & A CAUSE NO. 57 OF 1998
IN THE ESTATE OF
YONAH MAKHANU BUTALI ………. DECEASED
AND
DANIEL NAMWENYA MAKHANU ……………. PETITONER
R U L I N G
Fanice Nasipwondi Wakwabubi seeks to be made a co-administrator of the estate of Yonah Makhanu Butali (deceased). She wants to replace the late Daniel Namwenya Makhanu her brother who had been appointed as one of the administrators of the aforesaid Estate before his demise. She has even obtained limited letters of administration to administer the estate of Daniel Namwenya Makhanu (deceased). The application is said to be brought under the provisions of Section 74 of the Law of Succession Act. The summons is supported by an affidavit she swore on 9th April 2003.
The remaining two administratrixes opposed the summons by filing grounds of opposition. They complain that the applicant was not candid to this court because she did not disclose the fact that she was married elsewhere hence she is not entitled to administer the deceased’s estate. They also accused the applicant for intermeddling with the estate of Yonah Makhanu Butali. It is also averred that she did not disclose her interest save for the fact that she is armed with a limited grant of representation to the estate of Daniel Namwenya Makhanu.
The provisions of Section 74 of the Law of Succession Act states:
“Errors in names and descriptions, or in setting out the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.”
It is clear from the above provisions that the prayers made by the applicant are unavailable through section74. No other section was cited to enalbe me exercise my discretion or jurisdiction. Parties are deemed to know the provisions under which they can approach the court to give them their rights. On this score I am not convinced that the applicant has properly established her case.
The applicant has averred that she is bringing this application as the legal representative of the estate of one Daniel Namwenya Makhanu (deceased). In her affidavit she states that she has obtained limited letters of administration. She did not disclose her relationship with the late Yonah Makhanu Butali. She also failed to annex in her affidavit a copy of the grant of limited letters of administration. I am not satisfied that the applicant has disclosed her interest in the estate of Yonah Makhanu Butali (deceased).
On the other hand the Respondent’s grounds of opposition raised on factual matters which can be of evidential value if they were deponed in an affidavit. They remain useless in evidence if not stated under oath.
The upshot therefore is that the chamber summons is not well founded. It is dismissed with costs to the Respondents.
DATED AND DELIVERED THIS 21st DAY OF January 2005
J.K. SERGON
JUDGE