[2017] KEHC 9260 (KLR)
The court found that the applicant, as the son and sole beneficiary of the deceased, was entitled to petition for the grant of letters of administration or, at minimum, to be notified and to provide consent before another person could petition. The respondent failed to obtain the applicant's consent or ensure his...
Source-derived case information.
- Citation
- [2017] KEHC 9260 (KLR)
- Parties
- Applicant: John Kiboo; Respondent: Peter Kiruri Mumbwa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1341 of 2017
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- grant revoked; new grant to applicant
- Judges
- AO Muchelule, DN Musyoka
- Legal Topics
- Grant of Letters of Administration, Revocation of Grant, Consent of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kiboo
Applicant
Peter Kiruri Mumbwa
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the grant of letters of administration issued to the respondent was valid in the absence of the applicant's consent.
- 2 Whether the applicant, as the only son and beneficiary, was entitled to be notified and to consent to the petition for grant of letters of administration.
- 3 Whether the respondent's interest in the estate was limited to compensation as per the prior court judgment.
Ratio Decidendi
The court found that the applicant, as the son and sole beneficiary of the deceased, was entitled to petition for the grant of letters of administration or, at minimum, to be notified and to provide consent before another person could petition. The respondent failed to obtain the applicant's consent or ensure his renunciation of the right to petition, rendering the proceedings leading to the grant defective in substance. The grant was therefore revocable under the Law of Succession Act and the Probate and Administration Rules. The respondent's interest in the estate was limited to a claim for compensation as determined in a prior court case, and he was not a beneficiary of the estate....
Court Disposition
grant revoked; new grant to applicant
Orders
- The grant of letters of administration issued to the respondent is revoked with costs.
- A grant of letters of administration shall be issued to the applicant John Kiboo.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 1341 OF 2014
IN THE MATTER OF THE ESTATE OF KANYOIKE KIBOO (DECEASED)
JOHN KIBOO…………………….……...OBJECTOR/APPLICANT
VERSUS
PETER KIRURI MUMBWA …………….………….RESPONDENT
JUDGMENT
1. There is no dispute that the deceased Kanyoike Kiboo died intestate on 15th August 2011. While alive in 1963 he sold his land parcel T.94 Kiamwangi/Kiganjo to the father of the respondent Peter Kiruri Mumbwa. Before he could transfer the land he resold it to a third party. This led the respondent to sue the deceased in PMCC No. 20 of 1990 at Kiambu. The court found that, now that the land had been resold, the deceased refunds the purchase price with interest, also pays for the house that had been destroyed, and also pays costs and interest. By the time the deceased died, he had not paid this money. This caused the respondent to file a citation against the widow of the deceased called Veronicah Wanjiru asking her to accept or refuse to apply for letters of administration of the deceased. When she did not petition, the respondent petitioned and on 22nd September 2015 was issued with the grant of letters of administration intestate. The deceased’s widow subsequently died. The respondent applied to have the grant confirmed.
2. On 13th May 2016 the applicant John Kiboo filed the present application seeking to have the grant revoked/annulled. His basic complaint was that he was the son of the deceased, and the only beneficiary, who had no knowledge of the petition having been filed, and whose consent had not been sought before the petition was filed.
3. The respondent swore a replying affidavit to state that after the deceased died, three years passed without the applicant petitioning for a grant. This is what had led him to cite the legal representatives but that they had failed to petition, and it was at that appoint that he filed the petition. While filing the petition, he stated, he asked the applicant to be enjoined in the application and even went together with him to the chief to try and get him to come along in the petition. He declined.
4. The applicant and the respondent each testified in support of his case. The respondent was represented by M/S Chepngeno and the applicant was not represented. The respondent’s counsel filed written submissions. I have considered all the evidence and the submissions.
5. There is no dispute that the citation dated 14th May 2014 and filed on 19th January 2014 was addressed to the widow of the deceased. She was the one who was being asked to accept or refuse to petition for the grant of letters of administration. The petition was not served on the applicant. The grant was revocable for want of knowledge on the part of the applicant. Secondly, when the respondent filed the petition he indicated therein that Veronicah Wanjiru Kanyoike was the widow of the deceased and that the applicant was the son of the deceased. This was contained in Form 38 of the Probate and Administration Rules. However, neither of these provided any consent.
6. Under section 66 of the Law of Succession Act (Cap.160) and rules 7(1)(e)and 26(1) of the Rules, the applicant who was entitled to petition for the grant of letters of administration in respect of the estate of the deceased, had not renounced his right and therefore his consent was mandatory (In the Matter of the Estate of Marioko Njeru Migwi (Deceased) [2014] eKLR). Accordingly, the grant issued to the respondent was revocable as the proceedings leading to the same were defective in substance.
7. It should also be pointed out that the only estate the deceased left was land parcel Kiganjo/Kiamwangi/599. This was not the subject of the sale agreement referred to in the foregoing. In respect of the estate of the deceased, the respondent was owed the compensation above. He was otherwise not a beneficiary to the estate. His interest was limited to him claiming compensation, pursuant to the Kiambu case, from the administrator of the estate.
8. In short, I find that the grant issued to the respondent was not valid and is consequently revoked with costs.
9. There being no other beneficiary to the estate of the deceased, I direct that a grant of letters of administration be issued to the applicant John Kiboo who shall, within 60 days, file application to confirm the same. The application shall be served on the respondent who shall make his claim to the estate.
SIGNED at NAIROBI this 14TH day of SEPTEMBER 2017.
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at NAIROBI this 18TH day of SEPTEMBER 2017.
W. MUSYOKA
JUDGE