[2015] KEHC 5365 (KLR)
The court held that it could not grant the orders sought by the applicants at this stage because the issues raised—specifically entitlement to the land parcels and the respondent's share in the estate—can only be determined after a succession cause is properly filed and heard. Furthermore, the court found it lacked...
Source-derived case information.
- Citation
- [2015] KEHC 5365 (KLR)
- Parties
- Applicant: Morris Oluoch Omogi; Applicant: Jared Ochieng Omogi; Respondent: Beatrice Sirago
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 83 of 2014
- Procedural Posture
- Succession Cause / Ruling on Citation to Accept or Refuse Letters of Administration
- Outcome
- application dismissed
- Judges
- EM Muchoki
- Legal Topics
- Probate and Administration, Letters of Administration, Citation Procedure, Land Restrictions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Morris Oluoch Omogi
Applicant
Jared Ochieng Omogi
Applicant
Beatrice Sirago
Respondent
Procedural Posture
Succession Cause / Ruling on Citation to Accept or Refuse Letters of Administration
Legal Issues
- 1 Whether the respondent's refusal to take out letters of administration justifies granting administration to the applicants at this stage.
- 2 Whether the court has jurisdiction to remove land restrictions placed by the deceased on the estate parcels.
- 3 Whether the application was properly brought before the court without notice to the Land Registrar as required by law.
Ratio Decidendi
The court held that it could not grant the orders sought by the applicants at this stage because the issues raised—specifically entitlement to the land parcels and the respondent's share in the estate—can only be determined after a succession cause is properly filed and heard. Furthermore, the court found it lacked jurisdiction to remove land restrictions placed by the Land Registrar, especially since the application was brought without notice to the Registrar as required by law. The application, though framed as a citation, was in substance an attempt to challenge land restrictions, which is not within the court's jurisdiction in this context. As such, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
HC SUCC CAUSE NO. 83 OF 2014
IN THE MATTER OF THE ESTATE OF CHARLES SIRAGO OLUOCH(DECEASED)
AND
IN THE MATTER OF CITATION TO ACCEPT OR REFUSE LETTERS OF ADMINISTRATION
BETWEEN
MORRIS OLUOCH OMOGI)
JARED OCHIENG OMOGI)............................APPLICANTS
VERSUS
BEATRICE SIRAGO..............................RESPONDENT
RULING
The applicants approached this court by way of a citation issued to Beatrice Sirago who they say is the widow of Charles Sirago Oluoch(deceased) for refusing to take out letter of administration into his estate whereas he had “placed restrictions” on parcels of land for which they are the beneficiaries. It is their contention that while the restrictions remain in place they cannot bring succession proceedings in respect of the parcels of land. They were represented by Mr. Nyanga from the inception of the cause.
The Citor though duly notified of this cause and the hearing date did not attend and so the matter proceed exparte. Mr. Nyanga also filed written submissions. He has framed issues for determination which in my view are not capable of being answered at this stage of the proceedings. Only once they have filed a succession cause and the court has heard them and any other party that may become interested can this court determine whether they are entitled to the land parcels. The question whether the respondent is entitled to share in the estate is also incapable of being determined at this stage. Under ordinary circumstances where a person cited refuses to attend or to take out letters of administration the court issues the letters of administration to the Citor. However, in this case what this court is being asked to do is to remove the restrictions placed on the parcels of land by thew Citee`s husband. That is not within the jurisdiction of this court to do. Moreover, what we have are not cautious but restrictions which are placed on the land by the Land Registrar under section 76 of the Land Registrar Act yet it appears that this application was brought without notice to him/her as required under section 78(3) of the Land Registration Act. The consequence is that this application which is disguised as a citation under rule 22 of the Probate and Administration Rules is discriminated. There shall be no order for costs the citee having not entered appearance. It is so ordered.
E.N. MAINA
JUDGE
Signed, dated and delivered in Kisumu this 5th day of March, 2015
In the presence of:
Mr. Nyanga for applicants
Morris Oluoch Omoga-Applicant
Jared Ochieng Omogi-
Court clerk; Moses Okumu