[2002] KEHC 1015 (KLR)
The court held that the petitioner, as the only daughter of the deceased, is the person with the highest priority to file the petition for letters of administration under the Laws of Succession Act. The objectors, being brothers of the deceased, are two degrees removed and thus have a lower priority. The court found...
Source-derived case information.
- Citation
- [2002] KEHC 1015 (KLR)
- Parties
- Petitioner: M N K; Objector: J N W; Objector: P K W; Objector: P N WA; Objector: W N W
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1725 of 1997
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Petition allowed. Grant of letters of administration issued to the petitioner.
- Legal Topics
- Succession, Letters of Administration, Order of Preference, Oral Will, Applicability of Laws of Succession Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M N K
Petitioner
J N W
Objector
P K W
Objector
P N WA
Objector
W N W
Objector
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the petitioner, as the daughter of the deceased, is entitled to file the petition for letters of administration over the estate.
- 2 Whether the objectors' reliance on an oral will and an agreement bars the petitioner from seeking administration.
- 3 Whether the Laws of Succession Act applies to the estate given the date of death of the deceased.
Ratio Decidendi
The court held that the petitioner, as the only daughter of the deceased, is the person with the highest priority to file the petition for letters of administration under the Laws of Succession Act. The objectors, being brothers of the deceased, are two degrees removed and thus have a lower priority. The court found no evidence that the deceased appointed an administrator through an oral will or otherwise. Furthermore, Section 2(2) of the Act requires that, as far as possible, the administration of estates of persons who died before the Act's commencement should proceed in accordance with the Act. The court clarified that the present determination was limited to the right to petition for...
Court Disposition
Petition allowed. Grant of letters of administration issued to the petitioner.
Orders
- The petition filed by the petitioner is allowed.
- Grant of letters of administration to the estate of Mugure Gachanja to be issued in the petitioner's name.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
H. C. SUCCESSION CAUSE NO. 1725 OF 1997
IN THE MATTER OF THE ESTATE OF MUGURE GACHANJA –
DECEASED
M N K……………………….. PETITIONER
V E R S U S
J NW…
P K W…
P N WA….…………………..OBJECTORS
W N W…
J U D G M E N T
M NK the daughter of the deceased Mugure Gachanja has filed the petition. The four brothers of the deceased have filed their objections of the grant to the daughter.
It is common ground that the petitioner is the only daughter to the deceased and that she was the registered owner of the plot of land No. Githunguri/Kimathi/127. it is also common ground that the deceased was bequethed the said plot by her deceased father along with four objectors who were given 10 acres each. It is also on record that the objectors in their petition filed before the Githunguri Court described the petitioner as a niece of the deceased instead of a daughter.
The objectors have relied on the issue of oral will and an agreement dated 23rd September, 1973 to oust the claim of the petitioner to seek administration or to inherit the property of her mother. It is also contended that the provisions of the Laws of Succession Act do not apply to the estate because the deceased died prior to the date of its commencement.
I must keep in mind that at this juncture I am not deciding the issue of inheritance but the issue of who shall be entitled to file the petition for letters of administration.
From the evidence before me even if I accept that there was an oral will (which I can not and shall not determine now) it does not come clearly that the deceased appointed any administrator during the averred meeting on Jamuhuri Day of 1980.
Section 2 (2) of the Act specifically stipulates that the administration of the estates of the persons dying before the commencement of the Act shall commence or proceed so far as possible in accordance with this Act.
The Petitioner is the daughter of the deceased and as per the Act is the first person in order of preference to file the petition for letters of administration. The objectors are two degrees below her.
I do not see any difficulty in allowing her to file the petition in her name. The objectors, if they wish, can claim their right of inheritance from the estate during confirmation of the grant.
I therefore direct that the petition filed by the Petitioner be allowed and the grant of letters of administration be issued in her name.
Dated and delivered at Nairobi this 10th day of May, 2002.
K. H. RAWAL
J U D G E.