[2009] KEHC 3164 (KLR)
The court held that the preliminary objection was filed after the Grant of Letters of Administration had already been issued, rendering the objection incompetent and unsustainable. The law requires objections to be filed within the period specified following publication in the Kenya Gazette. Since the Grant had...
Source-derived case information.
- Citation
- [2009] KEHC 3164 (KLR)
- Parties
- Applicant: Peter Mose Ayuge; Respondent: Julius Machenge Masese
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 39 of 2005
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection to Grant of Letters of Administration
- Outcome
- preliminary objection struck out with costs to the applicant
- Legal Topics
- Succession, Grant of Letters of Administration, Preliminary Objection, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mose Ayuge
Applicant
Julius Machenge Masese
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection to Grant of Letters of Administration
Legal Issues
- 1 Whether the preliminary objection to the making of the Grant was competent, having been filed after the Grant had already been issued.
- 2 Whether the applicant had the legal capacity to apply for the Grant of Letters of Administration.
Ratio Decidendi
The court held that the preliminary objection was filed after the Grant of Letters of Administration had already been issued, rendering the objection incompetent and unsustainable. The law requires objections to be filed within the period specified following publication in the Kenya Gazette. Since the Grant had already been issued and the objection was filed out of time, the only recourse available to the objector is to apply for revocation or annulment of the Grant under the relevant statutory provisions. The court therefore struck out the objection with costs to the applicant.
Court Disposition
preliminary objection struck out with costs to the applicant
Orders
- The preliminary objection is struck out.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
SUCCESSION CAUSE 39 OF 2005
IN THE MATTER OF THE ESTATE OF:
HENRY MASESE OBWANGI ……….....……..……………. DECEASED
AND
PETER MOSE AYUGE ………………………….…………. APPLICANT
VERSUS
JULIUS MACHENGE MASESE ……………….…………. OBJECTOR
RULING
This ruling is in respect of a preliminary objection to making of a Grant. The objection was filed on 27th January, 2006. The applicant applied for a Grant of Letters of Administration of the deceased’s estate on 15th March, 2005. A notice was published in the Kenya Gazette on 15th April 2005. The usual period of 30 days for lodging objections was given. No objection was received within the stipulated period. The court proceeded to issue the Grant to the applicant on 20th May, 2005.
On 17th November, 2005 summons for confirmations of the Grant were filed. The preliminary objection stated that the objection is incompetent and bad in law as it was filed out of time, the Grant having already been issued. Mr. Ombachi for the applicant urged the court to strike it out.
Mr. Makori for the objector submitted that the applicant/petitioner was not a beneficiary of the deceased’s estate but he applied for the Grant, knowing that the objector, who had a right to apply for the same was unwell. He urged the court to disallow the preliminary objection since the applicant is a stranger to the deceased’s estate.
I have considered the above arguments. It cannot be disputed that the objection was filed too late, the Grant having been issued, just before the same was confirmed. At this stage, I cannot consider whether the applicant had capacity to apply for the Grant or not. If that is the case, the objector can proceed to apply for revocation or annulment of the Grant. Such an application is not yet time barred but the objection filed is unsustainable and is hereby struck out with costs to the applicant.
DATED, SIGNED AND DELIVERED AT KISII THIS 16th DAY OF June, 2009.
D. MUSINGA
JUDGE.