[2015] KEHC 5415 (KLR)
The court found that, despite the opposition by the citee and the abatement of the related civil suit, the interests of justice would best be served by appointing the citee as administrator of the deceased's estate. This appointment would enable the progression of the pending civil case and ensure that the estate is...
Source-derived case information.
- Citation
- [2015] KEHC 5415 (KLR)
- Parties
- Applicant: Mwasya Mwendwa; Respondent: Esther Kathini Mwinzi
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 4 of 2013
- Procedural Posture
- Succession Cause / Ruling on Citation for Grant of Letters of Administration
- Outcome
- application allowed
- Judges
- GMA Dulu
- Legal Topics
- Succession, Letters of Administration, Probate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwasya Mwendwa
Applicant
Esther Kathini Mwinzi
Respondent
Procedural Posture
Succession Cause / Ruling on Citation for Grant of Letters of Administration
Legal Issues
- 1 Whether the citee should be appointed as administrator of the estate of the deceased Simon Mwinzi Mwenga.
- 2 Whether the abatement of the related civil suit precludes the grant of letters of administration.
- 3 Whether the interests of justice require the appointment of an administrator to progress the pending civil case.
Ratio Decidendi
The court found that, despite the opposition by the citee and the abatement of the related civil suit, the interests of justice would best be served by appointing the citee as administrator of the deceased's estate. This appointment would enable the progression of the pending civil case and ensure that the estate is properly represented. The court relied on its powers under the Law of Succession Act, the Civil Procedure Act, and the Constitution to prioritize substantive justice over procedural technicalities. The absence of any application for letters of administration by the citee or her children justified the grant of the citation and the appointment sought.
Court Disposition
application allowed
Orders
- Esther Kathini Mwinzi is appointed as the administrator of the estate of the late Simon Mwinzi Mwenga.
- Each party to bear their own costs of the citation proceedings.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
SUCCESSION CAUSE NO. 4 OF 2013
MWASYA MWENDWA ……………………..CITOR
VERSUS
ESTHER KATHINI MWINZI…………………………..CITEE
RULING
This is a citation brought under the Law of Succession Act (Cap 160). It was filed under the Probate and Administration Rules, though the specific rule was not cited. There is however provision under Rule 21 for bringing such proceedings in court.
The citation is opposed. It is contended by the cite herein that the suit wherein the deceased was a party has already abated. It is also not denied that the deceased was the husband of the citee. It is not denied that the case Civil Mwingi Civil Suit No. 231 of 2008 between the citor and the husband of the citee had not been finalized, and that the citor is the plaintiff therein. It is not denied that neither the citee nor her children had applied for letters of administration in the estate of the deceased Simon Mwinzi Mwenga.
In my view, though the citee has opposed the application, the interests of justice will best be served if the application is granted. Such is the only way to progress the civil case filed against the citees late husband. In the best interests of substantive justice therefore under Section 3A of the Civil Procedure Act (Cap. 21) and Article 159 (2) (b) of the Constitution of Kenya 2010, I allow the application and appoint the citee Esther Kathini as the administrator of the estate of her husband late Simon Mwinzi Mwenga. Each party will bear their respective costs of these citation proceedings.
Dated and delivered at Garissa this 27th April, 2015
GEORGE DULU
JUDGE