[2016] KEHC 5133 (KLR)
The court found that the applicant had demonstrated a legitimate interest in the estate of the deceased by producing sale agreements and evidence of possession and development of the land in question. The respondent, despite being the only heir and being duly served, failed or neglected to take out letters of...
Source-derived case information.
- Citation
- [2016] KEHC 5133 (KLR)
- Parties
- Applicant: Johnstone Njeru Nyaga; Respondent: Peter Ita
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 95 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- citation allowed; applicant granted leave to file succession cause
- Legal Topics
- Succession of Estates, Letters of Administration, Intestate Succession, Land Sale Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnstone Njeru Nyaga
Applicant
Peter Ita
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the applicant is entitled to orders to file a succession cause in respect of the estate of the deceased.
- 2 Whether the respondent, as the only heir, failed or neglected to take out letters of administration intestate.
- 3 Whether the applicant has demonstrated sufficient interest in the estate to warrant the orders sought.
Ratio Decidendi
The court found that the applicant had demonstrated a legitimate interest in the estate of the deceased by producing sale agreements and evidence of possession and development of the land in question. The respondent, despite being the only heir and being duly served, failed or neglected to take out letters of administration or oppose the citation. In the absence of any opposition and with sufficient evidence of the applicant's interest, the court determined that the applicant should be granted leave to file a succession cause in respect of the estate to facilitate the transmission of the land. The citation was therefore allowed in favour of the applicant.
Court Disposition
citation allowed; applicant granted leave to file succession cause
Orders
- The applicant is granted leave to file a succession cause in respect of the estate of Nyaga Njue alias Nyaga Zakaria.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. SUCCESSION CAUSE NO. 95 OF 2008
In the matter of the Estate of NYAGA NJUE Alias NYAGA ZACHARIA (Deceased)
JOHNSTONE NJERU NYAGA …….................................APPLICANT/CITOR
V E R S U S
PETER ITA......................................................................RESPONDENT/CITEE
R U L I N G
This is a citation by the Applicant/Citor Johnstone Njeru Nyaga against the respondent/Citee Peter Ita filed on 27/08/2008.
The citor in his citation states that the deceased Nyaga Njue alias Nyaga Zacharia died on the 17th day of July, 2003 leaving the citee Peter Ita as the only heir of the estate and that its only the citee who can take out letters of administration intestate.
The citee states that the deceased during his lifetime, sold to him land reference number LR. Mbeere/Kirima/1599 but had not signed the relevant documents. He has since approached the citee to take out letters of administration in order to execute the necessary documents on behalf of the deceased.
However, the citee has been reluctant to take up that responsibility. The citee was duly served with the citation but did not file a reply he was also served with the hearing notice on 24/6/2014 at Kiandegwa village, Kirima sub-location of Mbeere South District. The citee did not attend court for hearing of this citation. The citation therefore proceeded unopposed.
During the hearing the citor testified that he bought the land from the deceased in 1987 and immediately took possession. He had developed the land and uses it to date. The deceased died in the year 2003 several years after the citor had taken possession.
It was further stated that the deceased had no wife nor children and that his only survivors are the brothers including the citee herein. He produced copies of the sale agreement between him and the deceased.
The agreements shows that the deceased agreed to sell him Plot No. 1599 at Kirima for Kshs.15,000/=. The consideration was paid in 14 installments. A new bicycle was exchange for value of Shs.3,400/= as part of the consideration and forming one installment.
The citor prays that since the citee failed or neglected to reply to or to attend hearing of this citation, the court should grant him orders to file the succession cause to facilitate the transmission of the land to him.
In the absence of any opposition to the citation and the citor having produced documents to demonstrate his interest in the estate, I find that these proceedings should be determined in favour of the citor.
I therefore allow the citation by granting orders to the citor to file a succession cause in respect of the estate of Nyaga Njue alias Nyaga Zakaria.
It is hereby so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 10TH DAY OF MAY, 2016.
F. MUCHEMI
J U D G E
In the presence of:-
Ms. Muriuki for Kathungu for Applicant
Applicant present in person