[2014] KEHC 5949 (KLR)
The court found that the applicants' objection to the grant of letters of administration was filed after the grant had already been issued, rendering the objection incompetent under section 68 of the Law of Succession Act. Furthermore, the application for revocation or annulment of the grant did not comply with the...
Source-derived case information.
- Citation
- [2014] KEHC 5949 (KLR)
- Parties
- Respondent: John Oscar Katua; Respondent: John Kyende Katua; Respondent: Gilbert Makau Katua; Applicant: Beatrice Njeri Irungu; Applicant: Zakayo Kimani Maina
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 438 of 2011
- Procedural Posture
- Succession Cause / Ruling on Objection and Application for Revocation/annulment of Grant
- Outcome
- application struck out as incompetent
- Judges
- BT Jaden
- Legal Topics
- Probate and Administration, Grant of Letters of Administration, Revocation of Grant, Objection to Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Oscar Katua
Respondent
John Kyende Katua
Respondent
Gilbert Makau Katua
Respondent
Beatrice Njeri Irungu
Applicant
Zakayo Kimani Maina
Applicant
Procedural Posture
Succession Cause / Ruling on Objection and Application for Revocation/annulment of Grant
Legal Issues
- 1 Whether the applicants' objection to the grant of letters of administration was properly before the court.
- 2 Whether the application for revocation or annulment of grant complied with the mandatory legal provisions.
- 3 Whether the applicants had legal standing to be included in the administration of the estate.
Ratio Decidendi
The court found that the applicants' objection to the grant of letters of administration was filed after the grant had already been issued, rendering the objection incompetent under section 68 of the Law of Succession Act. Furthermore, the application for revocation or annulment of the grant did not comply with the mandatory procedural requirements set out in section 76 of the Act and Rule 44 of the Probate and Administration Rules. The application improperly combined an objection to the making of a grant with an application for revocation or annulment, making it an omnibus application that was procedurally defective. As a result, the court struck out the application as incompetent.
Court Disposition
application struck out as incompetent
Orders
- The application is struck out as incompetent.
- Costs in the cause.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
SUCCESSION CAUSE NO. 438 OF 2011
IN THE MATTER OF THE ESTATE OF THE LATE MARGARET MARY KATUA (DECEASED)
1. JOHN OSCAR KATUA
2. JOHN KYENDE KATUA
3. GILBERT MAKAU KATUA.............PETITIONERS/RESPONDENTS
VERSUS
1. BEATRICE NJERI IRUNGU
2. ZAKAYO KIMANI MAINA...................OBJECTORS/APPLICANTS
R U L I N G
1. The Notice of Objection was filed herein on 8/8/2012 under sections 68 (1) and 72 (a) of the Law of Succession Act Cap 160 Laws of Kenya, Rule 44 of Probate and Administration Rules by Beatrice Njeri Irungu & Zakayo Kimani Maina.
2. The Applicants’ claim according to their affidavit in support is that they had purchased land parcels No. LR 13418/133 and LR No. 13418/134 from the deceased prior to her death in the year 2003. The Applicants’ complaint is that they were not included in the Probate & Administration form 5.
3. No papers were filed in opposition to the application and there was no attendance in court by the administrators of the estate of the deceased although service was duly effected.
4. Under section 67 of the Law of Succession Act Cap 160 Laws of Kenya (Act) when an application for a grant of representation is made, notice of the same must be published for a period of not less than 30 days. The only exception made by this provision is for applications for limited grants for collection and preservation of assets.
5. Section 68 of the Act provides for the making of any objections to an application for a grant of representation.
6. The grant of letters of administration was made herein on 7/11/2011. The Objector’s are therefore trying to close the door after the horse has already bolted.
7. No application for the confirmation of the grant has been made by the administrators as provided for under section 71 of the Act. Section 72 of the Actprovides for making protests to the confirmation of grant. The reliance by the Applicants on section 72 of the Act is therefore a premature bid.
8. Section 76 of the Act provides for the revocation or annulment of a grant when the proceedings to obtain the grant were defective in substance; the grant was obtained fraudulently by the making of false statements or by concealment of material facts to the court; the grant was obtained by the untrue allegations of fact or the administrators have failed to apply for the confirmation of the grant within the period provided or failed to proceed diligently with the administration of the estate.
9. If the Applicants’ intention herein was to apply for the revocation or annulment of the grant under section 76 of the Act, it was mandatory to comply with the provisions of rule 44 of the Probate and Administration Rules.
10. The application at hand is an omnibus that seems to have combined the objection to the making of a grant with an application for revocation or annulment of grant. Consequently, I find the application incompetent and I strike out the same. Costs in cause.
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B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 6thday of March 2014.
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B. THURANIRA JADEN
JUDGE