[2004] KEHC 2600 (KLR)
The court found that the service of the hearing notice on John Kibiego Rop was not satisfactorily established, as the affidavit of service did not specify how the person served was identified. Additionally, the court noted procedural defects including lack of independent consent from a beneficiary, undated affidavit...
Source-derived case information.
- Citation
- [2004] KEHC 2600 (KLR)
- Parties
- Applicant: Nicholas Kiptanui Ayabei
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 237 of 1999
- Procedural Posture
- Probate and Administration Cause / Ruling on Application for Grant of Letters of Administration
- Outcome
- Application for grant of letters of administration deferred pending rectification of procedural defects and proper service.
- Judges
- GMA Dulu
- Legal Topics
- Succession, Letters of Administration, Service of Process, Consent of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nicholas Kiptanui Ayabei
Applicant
Procedural Posture
Probate and Administration Cause / Ruling on Application for Grant of Letters of Administration
Legal Issues
- 1 Whether proper service of hearing notice was effected on John Kibiego Rop.
- 2 Whether all necessary consents and procedural requirements for grant of letters of administration were satisfied.
Ratio Decidendi
The court found that the service of the hearing notice on John Kibiego Rop was not satisfactorily established, as the affidavit of service did not specify how the person served was identified. Additionally, the court noted procedural defects including lack of independent consent from a beneficiary, undated affidavit of justification, undated guarantee by personal sureties, and absence of revenue stamps. These deficiencies rendered the application for grant of letters of administration incomplete and not ready for determination. The court therefore declined to proceed with the application until the defects were remedied and proper service was effected.
Court Disposition
Application for grant of letters of administration deferred pending rectification of procedural defects and proper service.
Orders
- Application to be heard after remedying the identified defects and properly serving John Kibiego Rop.
- Hearing date to be taken in the registry.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET PROBATE AND ADMINISTRATION CAUSE NO.237 OF 1999
IN THE MATTER OF THE ESTATE OF MAHINDI BOIT(DECEASED)
AND
NICHOLAS KIPTANUI AYABEI …………………………………….……PETITIONER
RULING
The application for grant of letters of administration to Nicholas Kiptanui Ayabei dated 29th May 2000 came for hearing on 10th May 2004. On 14th January 2004 I had ordered that a son of one of the sons of the deceased should be summoned to appear in court as Justice Juma had ordered in September 2003 that he should attend court.
Mr. Chepkwony for the applicant informed the court that service of hearing notice was effected but the said John Kibiego Rop chose not come to court. An affidavit of service dated 25th March 2004 sworn by Alfred Kipkirui Chepkwony was filed in court on 10th May 2004. The affidavit states that the said John Kibiego Rop was served with hearing notice on 10th May 2004 and though he accepted service he declined to sign the return copy. The affidavit says that service was effected by Alfred Kipkurui Chepkwony who is an advocate of the High Court of Kenya and that the said John Kibiego Rop became known to the said advocate at the time of service. The affidavit does not say how the person served was identified to the person who effected the service.
I am not satisfied about the service of the hearing notice. Additionally, I do not see any independent consent by one Simion Kipkemboi Ngisirei, son of the deceased agreeing that the estate be administered by the applicant. Also the affidavit of justification of proposed administrator is not dated. The guarantee by personal sureties is also not dated and revenue stamps have not been affixed.
In view of the above, I rule that I will hear the application after remedying the above defects and properly serving the son of one of the deceased whose name is John Kibiego Rop. Hearing date will be taken in the registry.
Dated and Delivered at Eldoret this 21ST Day of June 2004
George Dulu
Judge
Ruling read at 10. 00 am in open court in the presence of Mr. Chepkwony for the applicant.
George Dulu
Judge
(I certify this a true copy of the original)
DEPUTY REGISTRAR