[2004] KEHC 2314 (KLR)
The court found that the respondent's claim related to property registered in the name of a company, not the deceased personally, and thus was not part of the deceased's estate for succession purposes. The respondent, being neither a beneficiary nor an heir, could only be recognized as a creditor, and her remedy lay...
Source-derived case information.
- Citation
- [2004] KEHC 2314 (KLR)
- Parties
- Applicant: Margaret Nyokabi Gatimu; Applicant: Irene Waithira Gatimu; Respondent: Winfred Wanjiru Muruthi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1665 of 2003
- Procedural Posture
- Succession Cause / Ruling on Summons to Strike Out Objection and Grant Letters of Administration
- Outcome
- Objection struck out; Letters of Administration to be granted to applicants; each party to bear own costs.
- Judges
- FI Koome
- Legal Topics
- Succession, Letters of Administration, Priority of Grant, Creditor Claims, Objection to Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Nyokabi Gatimu
Applicant
Irene Waithira Gatimu
Applicant
Winfred Wanjiru Muruthi
Respondent
Procedural Posture
Succession Cause / Ruling on Summons to Strike Out Objection and Grant Letters of Administration
Legal Issues
- 1 Whether the objection by the respondent should be struck out for want of prosecution.
- 2 Whether the applicants are entitled to be granted Letters of Administration intestate in priority to the respondent.
- 3 Whether the respondent's claim as a purchaser of property from the deceased entitles her to participate in the succession proceedings.
Ratio Decidendi
The court found that the respondent's claim related to property registered in the name of a company, not the deceased personally, and thus was not part of the deceased's estate for succession purposes. The respondent, being neither a beneficiary nor an heir, could only be recognized as a creditor, and her remedy lay in pursuing a civil suit against the company or the administrators after the grant. The applicants, as widow and daughter, had priority under section 66 of the Law of Succession Act to be granted Letters of Administration. The objection was therefore struck out as incompetent, and the applicants were entitled to the grant.
Court Disposition
Objection struck out; Letters of Administration to be granted to applicants; each party to bear own costs.
Orders
- The objection by Winfred Wanjiru Muruthi is struck out as incompetent.
- The applicants are granted Letters of Administration intestate.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1665 OF 2003
MARGARET NYOKABI GATIMU
IRENE WAITHIRA GATIMU……………………………………APPLICANTS
Versus
WINFRED WANJIRU MURUTHI………………………………RESPONDENT
(Ruling in respect of application by way of Summons dated 4th October 2004)
RULING
This Summons bought under Rule 44 of the P & A rules by the petitioner seeks for orders that
1) That the objection lodged by WINFRED WANJIRU MURIITHI be struck out for want of prosecution
2) The grant of Letters of Administration intestate be made to the petitioners
The application is supported by the affidavit of the 1st petitioner. The gist of the matter deponed to in the said affidavit can be summarized as follows:
The petitioner’s are the widow and daughter of the deceased respectively. They are entitled in the order of priority to be issued with the Letters of Administration. The objector herein filed an objection on 4th September 2003. The objection is based on the grounds that;
i) The widow of the deceased has refused to recognize her as a rightful buyer of plot No.15 which she was purchasing from the deceased.
ii) She is apprehensive that the widow might sell the plot if granted the letters of Administration.
In opposition to this application the objector also filed a replying affidavit sworn on 4th December 2003. She has deponed that she purchased plot No. 15 of LR No. 473 registered with Jitahidi Development Company Ltd. where the deceased was a Director. The objector was not issued with a Title and therefore if the petitioners are issued with the Letters of Administration she will suffer irreparable loss.
I have given due consideration to this objection and the matters raised in the objector’s supporting affidavit. The property which the objector is claiming is not in the schedule of Assets of the deceased. It is registered in a name of a company JITAHIDI DEVELOPMENT CO. a Limited Liability Company that has other Directors and is capable of being sued. The deceased was one of the Directors. The objector being a creditor has two options either to
1) File a Civil Suit against the Jitahidi Development Co.
2) Pursue the petitioners in a Civil Suit once they have been issued with Letters of Administration.
Since she is neither a beneficiary or heir to the deceased estate her claim is outside the Law of Succession and all the petitioners could do is recognize her as a creditor if they are satisfied that she is one.
Accordingly the objection is struck out as being incompetent as the person having priority in this respect and according to section 66 of the Law of Succession is the deceased spouse and her children.
The petitioner should be granted the Letters of Administration. Each party shall bear their own costs.
It is so ordered.
Ruling read and signed on 26th March 2004.
MARTHA KOOME
JUDGE