[2002] KEHC 274 (KLR)
The application for review was dismissed because the applicant failed to rely on any of the grounds specified under Rule 44(1) of the Civil Procedure Rules, making the application objectionable. Additionally, the application was premature as no amended certificate of confirmation of grant had been issued in...
Source-derived case information.
- Citation
- [2002] KEHC 274 (KLR)
- Parties
- Applicant: Margaret Njeri Njogu; Respondent: George Muniu Mungai; Respondent: National Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Tribunal Appeal 3 of 1997
- Procedural Posture
- Succession Cause / Ruling on Summons for Review
- Outcome
- application dismissed
- Judges
- JM Khamoni
- Legal Topics
- Probate and Administration, Confirmation of Grant, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Njeri Njogu
Applicant
George Muniu Mungai
Respondent
National Bank of Kenya
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Review
Legal Issues
- 1 Whether the applicant is entitled to review of the court's previous order under Rule 44(1) of the Civil Procedure Rules.
- 2 Whether the application is premature in the absence of an amended certificate of confirmation of grant.
- 3 Whether the Registrar or Deputy Registrar has authority to exercise powers of an executor or administrator under the Law of Succession Act.
Ratio Decidendi
The application for review was dismissed because the applicant failed to rely on any of the grounds specified under Rule 44(1) of the Civil Procedure Rules, making the application objectionable. Additionally, the application was premature as no amended certificate of confirmation of grant had been issued in compliance with the court's earlier order. The court further held that the Registrar or Deputy Registrar lacks authority to exercise the powers and duties of an executor or administrator under the Law of Succession Act, and any failure by the executor or administrator can be addressed under the relevant statutory provisions.
Court Disposition
application dismissed
Orders
- The summons dated 14th October 2002 is dismissed.
- The applicant to personally pay costs of the application to the respondent George Muniu Mungai, without touching any asset in the deceased’s estate.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 3 OF 1997
IN THE MATTER OF THE ESTATE OF STEPHEN NJOGU
MUNGAI (DECEASED)
MARGARET NJERI NJOGU …………………………. APPLICANT
VERSUS
GERGE MUNIU MUNGAI ……………………. 1ST RESPONDENT
NATIONAL BANK OF KENYA ………………. 2ND RESPONDENT
R U L I N G
From what has been brought to my attention during the hearing of this summons dated 14th October 2002, the same be and is hereby dismissed for the following reasons:
Firstly, I get the impression that the Applicant, Margaret Njeri Njogu is behaving unreasonably by not listening to the good advice to her from the Respondent George Muniu Mungai who is her Co-Administrator.
Secondly, before making this application, the Applicant should have first ensured that an amended certificate of confirmation of grant she is trying to effect, has been issued in compliance with this court’s order dated 23rd September 2002. To-date no such an amended certificate has been issued and it is not enough to rely on an extracted court order in this matter.
Thirdly, although this summons is properly brought under Rule 44(1) of the Civil Procedure Rules for a review, none of the grounds specified in that rule is being relied upon thereby making the application objectionable.
Fourthly, in Probate and Administration Proceedings where the Executor or Administrator has to exercise his powers and perform his duties the Registrar or a deputy registrar of this court has no authority under the Law of Succession Act and its rules to exercise those Powers and perform those duties as
any failure on the part of the Executor or administrator can be adequately addressed under the Provisions of the Law of Succession Act and Probate and Administration Rules.
In conclusion, unless the Respondent does not want it, the Applicant to personally pay costs of this application to the Respondent George Muniu Mungai, without touching any asset in the deceased’s estate for that purpose.
Delivered, dated and signed at Nairobi this 7th Day of November 2002.
J.M. KHAMONI
JUDGE