[2014] KEHC 8164 (KLR)
The court determined that the continued filing of interlocutory applications has delayed the substantive resolution of the succession dispute. The essential issues requiring determination are the appointment of administrators, the extent of the estate, and the mode of distribution to beneficiaries. The court found...
Source-derived case information.
- Citation
- [2014] KEHC 8164 (KLR)
- Parties
- Applicant: Patrick Njuguna Kireru; Applicant: Hannah Mwihaki; Respondent: Evans Kimani Njuguna
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1064 of 1994
- Procedural Posture
- Succession Cause / Interlocutory Application Ruling
- Outcome
- Application dismissed; directions issued for hearing of substantive issues.
- Judges
- LK Kimaru
- Legal Topics
- Grant Revocation, Appointment of Administrators, Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Njuguna Kireru
Applicant
Hannah Mwihaki
Applicant
Evans Kimani Njuguna
Respondent
Procedural Posture
Succession Cause / Interlocutory Application Ruling
Legal Issues
- 1 Who should be appointed as the administrator(s) of the estate of the deceased.
- 2 What is the extent of the estate of the deceased, including any claims of joint ownership by the respondent.
- 3 How should the properties comprising the estate be distributed among the beneficiaries.
Ratio Decidendi
The court determined that the continued filing of interlocutory applications has delayed the substantive resolution of the succession dispute. The essential issues requiring determination are the appointment of administrators, the extent of the estate, and the mode of distribution to beneficiaries. The court found that the application to commit the respondent to civil jail would not resolve the real issues and emphasized the need to focus on the substantive matters. The court directed the parties to file and exchange witness statements within thirty days to facilitate a hearing on the core issues, thereby moving the matter towards final resolution.
Court Disposition
Application dismissed; directions issued for hearing of substantive issues.
Orders
- Parties to file and serve witness statements within thirty (30) days of the ruling.
- Parties at liberty to fix the case for hearing at the Registry thereafter.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO.1064 OF 1994
IN THE MATTER OF THE ESTATE OF THE LATE ISAAC KIRERU NJUGUNA – (DECEASED)
PATRICK NJUGUNA KIRERU………………………………………………………….1ST APPLICANT
HANNAH MWIHAKI……………………………………………………………………..2ND APPLICANT
VERSUS
EVANS KIMANI NJUGUNA …………………………………………………………….RESPONDENT
RULING
On 12th September 2002, Aluoch J (as she then was) made the following observations in respect of an application that had been lodged by the Applicants seeking to have the grant that had earlier been issued to the Respondent and one Patrick Njuguna revoked:
“For the reasons I have considered above, I find that I must proceed under Section 76 of the Succession Act, and revoke the grant of letters of administration issued to Njuguna Kimani and Patrick Njuguna on 13th December 1994 and subsequently confirmed, vide certificate of confirmation of grant dated 24th May 1996. It is now upon the deceased’s family to either retain the previous administrators, or agree on who shall be the administrator to the deceased’s estate. Whoever the administrators are, they must ensure that all survivors of the deceased agree to a mode of distribution of the deceased’s estate.”
This court has perused the record of the court in respect of subsequent proceedings that have taken place in this succession cause. It is evident that after the grant was revoked, new administrators have not been appointed. The estate of the deceased remains todate unadministered. What the parties to the succession dispute have been engaged in is the filing of interlocutory applications which have in the long run resulted in non-determination of the real issues in controversy. This court is of the view that unless the parties are directed to address their attention to the real issue in controversy, namely, who should appointed the administrators of the estate of the deceased, the determination of the extent of the estate of the deceased and finally the determination of the mode of distribution to be adopted in respect of the properties that comprise the estate of the deceased to the beneficiaries, the parties will engage in a never ending game of one-upmanship that will not lead to the resolution of the dispute.
The application dated 31st October 2011 is one such application which the Applicants sought the decision of the court which will ultimately not lead to the resolution of the dispute. In the application, the Applicants have sought for an order of this court to commit the Respondent to civil jail for allegedly failing to obey an order of this court that had earlier been issued by this court on 19th May 2011. That order was issued exparte. There is no evidence that the Respondent was served. The Respondent complained that he was not aware of the proceedings. Indeed, the Respondent made an application to have the said exparte order set aside. That application is still pending hearing and determination.
This court is of the view that the time for the parties to engage in side shows must come to an end. This court hereby directs that the real issues in controversy must be given priority to enable the final determination of the dispute. This court has identified the following issues to be the issues for determination:
The determination of who shall be appointed as the administrator/administrators of the estate of the deceased.
The determination of the extent of the estate of the deceased. The Respondent claims that he jointly owned one of the properties that comprise the estate of the deceased with the deceased. The Respondent will have to adduce evidence to establish this fact.
The distribution of the properties that comprise the estate of the deceased to the identified beneficiaries.
These issues will only be determined by the court after parties adduce viva voce evidence. The parties are ordered to file their witness statements within thirty (30) days of the date of the delivery of this Ruling. They are ordered to serve the opposing party with the said witness statements within the same period. Thereafter, the parties shall be at liberty to fix the case for hearing at the Registry. There shall be no orders as to costs. It is so ordered.
DATED AT NAIROBI THIS 25TH DAY OF JULY, 2014.
L. KIMARU
JUDGE