[2011] KEHC 3266 (KLR)
The court held that the death of an administrator is not a ground for revocation or annulment of a grant under section 76(e) of the Law of Succession Act. The provision must be interpreted ejusdem generis with the other grounds in section 76, none of which contemplate the death of the grant holder as a basis for...
Source-derived case information.
- Citation
- [2011] KEHC 3266 (KLR)
- Parties
- Applicant: John Kamuta Kabanga; Respondent: Jane Wambui Ngari; Respondent: Gabriel Munge Kabanga; Respondent: Susan Wawira Kabanga; Respondent: Cicily Njoki Kabanga; Respondent: Ernest Nduku Muchira
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 253 of 2010
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation or Annulment of Grant
- Outcome
- application dismissed
- Judges
- J Karanja, MA Warsame
- Legal Topics
- Succession, Revocation of Grant, Administrator Death, Limitation Periods, Grant Confirmation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Kamuta Kabanga
Applicant
Jane Wambui Ngari
Respondent
Gabriel Munge Kabanga
Respondent
Susan Wawira Kabanga
Respondent
Cicily Njoki Kabanga
Respondent
Ernest Nduku Muchira
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation or Annulment of Grant
Legal Issues
- 1 Whether the death of an administrator is a ground for revocation or annulment of a grant under section 76(e) of the Law of Succession Act.
- 2 Whether a delay of 16 years in seeking revocation of a confirmed grant is justifiable.
Ratio Decidendi
The court held that the death of an administrator is not a ground for revocation or annulment of a grant under section 76(e) of the Law of Succession Act. The provision must be interpreted ejusdem generis with the other grounds in section 76, none of which contemplate the death of the grant holder as a basis for revocation. Instead, the appropriate remedy is to apply for substitution of the deceased administrator. Furthermore, the court found that the application was brought after an inordinate delay of 16 years since the grant was confirmed, which militates against the interests of justice. Consequently, the summons for revocation or annulment of the grant was dismissed.
Court Disposition
application dismissed
Orders
- The summons for revocation or annulment of grant is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
HC SUCCESSION CAUSE NO. 253 OF 2010
JOHN KAMUTA KABANGA.........................................................................................................APPLICANT
VERSUS
JANE WAMBUI NGARI ....................................................................................................1ST RESPONDENT
GABRIEL MUNGE KABANGA...........................................................................................2ND RESPONDENT
SUSAN WAWIRA KABANGA.......................................................................................... 3RD RESPONDENT
CICILY NJOKI KABANGA .................................................................................................4TH RESPONDENT
ERNEST NDUKU MUCHIRA .............................................................................................5TH RESPONDENT
RULING
The Applicants’ Summons for the Revocation or Annulment of Grant is filed under section 76 (e) of the Law of Succession Act. This section reads as follows;
76“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides either on application by any interested party or on its own motion:_
(e)That the Grant has become useless and inoperative through subsequent circumstances.
In my considered view the “subsequent circumstances” anticipated above do not include the death of the Administrator/administratix of the estate of a deceased person. The subsection (e) must be read and interpreted ‘ejusdem generis’ with the other provisions of section 76 of the Law of Succession Act. In the first place, the Respondent in a Summons for Revocation is supposed to be the holder of the Grant. If the holder of the Grant is deceased, then there cannot be a respondent and this on its own should render a technical knockout to the summons. Where an administrator dies before the Estate is fully distributed, the right cause of action is to apply for substitution of the administrator and not for revocation of the said grant. Death of the Administrator/Administratrix is not one of the grounds for the revocation of a grant. This summons must therefore fail. I would like to mention also that the Grant herein was confirmed way back in 1994 i.e. Approximately 16 years ago. Although the Law of Succession Act does not give a limitation as to when an application for revocation of a Grant can be filed, even assuming that the summons were properly before the court, 16 years is in my view inordinate delay and seeking to put back the clock 16 years cannot be in the interests of justice. This application therefore fails. The same is hereby dismissed with no order as to costs.
W. KARANJA
JUDGE
Signed by the above but delivered and dated at Embu this 31st day of March, 2011 by the undersigned.
M. WARSAME
JUDGE
In the presence of:- Applicant present in person and Respondents present in person in open court.