[2010] KEHC 238 (KLR)
The court found that Joseph Kamau Kiguoya lacked locus standi to file the application as he was neither an administrator nor a listed beneficiary of the estate. The application was also brought under the wrong provisions of law, as Sections 82 and 83 of the Law of Succession Act pertain to the powers and duties of...
Source-derived case information.
- Citation
- [2010] KEHC 238 (KLR)
- Parties
- Respondent: Jackson Mbogo; Applicant: Joseph Kamau Kiguoya
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 74 of 2000
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- J Karanja
- Legal Topics
- Locus Standi, Probate and Administration, Powers of Personal Representatives
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Mbogo
Respondent
Joseph Kamau Kiguoya
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Application
Legal Issues
- 1 Whether Joseph Kamau Kiguoya had locus standi to file the application under Section 82 and 83 of the Law of Succession Act.
- 2 Whether the application was properly brought under the cited provisions of law.
- 3 Whether the application should be dismissed for want of merit.
Ratio Decidendi
The court found that Joseph Kamau Kiguoya lacked locus standi to file the application as he was neither an administrator nor a listed beneficiary of the estate. The application was also brought under the wrong provisions of law, as Sections 82 and 83 of the Law of Succession Act pertain to the powers and duties of personal representatives and do not confer standing to the applicant. The court agreed with the respondent's submissions and held that the application was bad in law and without merit. The proper procedure would require the surviving administratrix to file an application for substitution of the deceased administrators, not the applicant. Consequently, the application was...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 24.06.09 is dismissed with costs to Jackson Mbogo, the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. CIVIL APPLICATION NO. 74 OF 2000
JACKSON MBOGO………....……..........................................................................…………………..…….APPLICANT
VERSUS
JOSEPH KAMAU KIGUOYA…………...........................................................................………………..RESPONDENT
R U L I N G
The Application before me is the one dated 24. 06. 09. It is brought under Section 82 and 83 of Cap 160 and Rules 49 and 73 of the Probate and Administration Rules.
I can say at this early stage that the same is premised on the wrong provisions of the law, Section 82 and 83 of the law of Succession Act relates to the powers and duties of personal representatives. They do not confer locus on one Joseph Kamau Kiguoya to file the application in question.
Indeed, I have confirmed with the certificate of confirmation annexed to the application that the applicant is neither an administrator and nor is he one of the listed beneficiaries. That fact alone deprives him of the necessary locus standi to file the said application. The Application has no basis in law as Mr. Mogusu rightly submitted and it should be dismissed. That notwithstanding, I would like to observe that the application is made on the basis that 2 of the administratix have died. It is incumbent on the surviving administratrix to file an application for substitution.
I agree with Mr. Mogusu for the respondent (who is also wrongly sued) that the Executive officer cannot substitute the administrators who are deceased.
Having considered the Application along with the rival affidavits and counsel’s oral submissions in court, I find that this application is bad in law and the same has no merit whatsoever. It is hereby dismissed with costs to Jackson Mbogo who is named as the Respondent.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 25th day of November 2010
In presence of:- All parties.