[2020] KEHC 6738 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CIVIL CASE NO 4 OF 2016 (O. S.)

JEREMIAH MUKANGU GIOCHE(suing as the legalrepresentative of the estate of

SAMUEL GIOCHE IKUA..............................................................................PLAINTIFF

VERSUS

SAMUEL KANYORO IKUA.............................................................1ST DEFENDANT

MURAYA JASTAN............................................................................2ND DEFENDANT

MUTUGA KIRENGE......................................................................3RD DEFENDANT

JOHN GIOCHE MUOGE................................................................4TH DEFENDANT

RULING NO. 2

1. The plaintiff lodged the originating summons dated 6th April 2016 seeking, among other reliefs, taking of accounts; and, dissolution of a partnership styled Mugwanja Trading Company.

2. Contemporaneously with the summons the plaintiff brought a notice of motion praying for preservation of the assets of the partnership; an order to compel the defendants to bank earnings from partnership properties into the partnership bank account at the Co-operative Bank Ltd; and, to form a caretaker committee to superintend the process of winding up the partnership.

3. That motion was contested by the defendants. One of the objections taken was that the plaintiff had no standing: That whereas he purported to initiate the suit as the “legal representative” of a deceased partner, Samuel Gioche Ikua, the plaintiff was relying on a limited grant of letters of administration ad litem issued on 16th February 2016 in Nyeri Chief Magistrates Court Succession Cause No. 1 of 2016. However, a full grant of letters of administration intestate to the same estate was issued earlier to another party, Timothy Ikua Gioche, on 7th March 2003 in Murang’a Senior Principal Magistrates Court Succession Cause No. 17 of 2003. The latter grant has since been confirmed.

4. The motion was heard by way of written submissions before Waweru J on 27th March 2017. When the learned judge retired to consider the matter, he formed the opinion that an important legal issue needed to be canvassed further by the parties: Can the limited grant ad litem oust the previously issued full grant for any purpose at all?

5. By a preliminary ruling delivered on 31st May 2017, the learned judge invited the disputants to “address [the court] on this issue before ruling can be rendered on the notice of motion dated 6th April 2016”.

6. I heard learned counsel for all the parties on 26th February 2020. It is not contested that the plaintiff approached the High Court upon the foundation of the limited grant of letters of administration ad litem issued by the lower court on 16th February 2016. It also common ground that by the time that grant was issued, a full grant of letters of administration had been issued to another party, Timothy Ikua Gioche, on 7th March 2003 and subsequently confirmed. The riposte by the plaintiff is that at the time he presented the originating summons, he was unaware of the other proceedings or the issue of a confirmed grant.

7. The preliminary issue for determination is narrow and straightforward. The Law of Succession Act would never countenance a situation where two different parties hold two separate grants to the same estate; or, even worse, where the holder of a special limited granttries to overrun a confirmed grant to the same estate. See Re Estate of Mwaura Mbira (Deceased), High Court, Kerugoya, Succession Cause 608 of 2015 [2018] eKLR. An aggrieved party obviously has the right to move the court to annul the grant.

8. I thus readily find that the confirmed grant issued to Timothy Ikua Gioche on 7th March 2003 in Murang’a Senior Principal Magistrates Court Succession Cause No. 17 of 2003 supersedes the limited grant of letters of administration ad litem issued to the plaintiff by the lower court in Nyeri on 16th February 2016.

9. It must follow as a corollary that the plaintiff lacked standing to present the originating summons. The interlocutory notice of motion dated 6th April 2016 has no legs to stand on and is dismissed.

10. In the interests of justice, I shall not make any order on costs.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’Athis 23rd day of April 2020.

KANYI KIMONDO

JUDGE

ORDER

The date of delivery of this ruling was given to the parties at the conclusion of the hearing; and, by a fresh notice by the Deputy Registrar. In light of the declaration of measures restricting court operations due to the COVID-19 pandemic and following the practice directions issued by his Lordship, the Chief Justice dated 17th March 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice No. 3137, this ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.

KANYI KIMONDO

JUDGE

Ruling read in chambers in the presence of:

Ms. Dorcas, Court Assistant.