[2009] KEHC 1798 (KLR)
The court found that the objectors misunderstood the nature of an objection under the Law of Succession Act. Their claims did not challenge the applicant's right to be granted temporary letters of administration but instead pertained to their entitlement to a share of the estate, which is a matter for the...
Source-derived case information.
- Citation
- [2009] KEHC 1798 (KLR)
- Parties
- Applicant: Peter Mutua Ndola; Respondent: Nthambi Muange Ngolo; Respondent: Philes Mbatha Wambua; Respondent: Nduuti Mutua Ngolo; Respondent: Syokai Kinyaati Ngolo; Respondent: Alphonce Mutuku Maitha
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 273 of 2006
- Procedural Posture
- Probate and Administration / Ruling on Objection to Grant of Letters of Administration
- Outcome
- Objection dismissed; temporary letters of administration to issue to applicant.
- Legal Topics
- Succession of Estates, Letters of Administration, Objection Proceedings, Distribution of Ancestral Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mutua Ndola
Applicant
Nthambi Muange Ngolo
Respondent
Philes Mbatha Wambua
Respondent
Nduuti Mutua Ngolo
Respondent
Syokai Kinyaati Ngolo
Respondent
Alphonce Mutuku Maitha
Respondent
Procedural Posture
Probate and Administration / Ruling on Objection to Grant of Letters of Administration
Legal Issues
- 1 Whether the objectors have established a valid objection to the applicant's right to be granted temporary letters of administration.
- 2 Whether the objectors' claims pertain to entitlement to a share of the estate or to the applicant's capacity to administer the estate.
Ratio Decidendi
The court found that the objectors misunderstood the nature of an objection under the Law of Succession Act. Their claims did not challenge the applicant's right to be granted temporary letters of administration but instead pertained to their entitlement to a share of the estate, which is a matter for the confirmation stage. The court held that the objection lacked merit and dismissed it, ordering that temporary letters of administration be issued to the applicant, who must then apply for confirmation and serve the objectors accordingly.
Court Disposition
Objection dismissed; temporary letters of administration to issue to applicant.
Orders
- Objection is dismissed.
- Temporary letters of administration to the estate of Ndola Ng’olo Mwenzwa to be issued to Peter Mutua Ndola forthwith.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
PROBATE & ADMINISTRATION 273 OF 2006
IN THE MATTER OF THE ESTATE OF NDOLA NG’OLO MWENZWA (DECEASED)
PETER MUTUA NDOLA ………………………………… PETITIONER/ APPLICANT
VERSUS
NTHAMBI MUANGE NGOLO……………………… 1ST RESPONDENT/OBJECTOR
PHILES MBATHA WAMBUA ………….………….. 2ND RESPONDENT/OBJECTOR
NDUUTI MUTUA NGOLO ……………………...…. 3RD RESPONDENT/OBJECTOR
SYOKAI KINYAATI NGOLO …………………….… 4TH RESPONDENT/OBJECTOR
ALPHONCE MUTUKU MAITHA …………………. 5TH RESPONDENT/OBJECTOR
RULING
1. The deceased herein, Ndola Ng’olo Mwenzwa died on 08/12/1994. He left behind his 2nd wife, Muthoki Ndola, son, Peter Mutua Ndola, daughters-in-law, Mary Muthee Nziu and Wangene Matheka Ndola, grandson Wilson Muthama Ndola and eight daughters, Rael, Kaluki, Kasiva, Rose, Kithanze, Katile, Nzilani, Wayua and Beth, (all married and living away from his home). The deceased also left seven pieces of land at Mitaboni/Mutituni being parcels Nos.1153, 1545, 1952, 1727, 1703, 1297 and 2389.
2. Peter Mutua Ndola applied for letters of administration to the deceased’s estate on 27/6/2006 and before the letters could be issued, Nthambi Muange Ngolo, Philes Mbatha Wambua, Nduuti Mutua Ngolo, Syowai Kinyaati Ngolo and Alphonce Mutuku Maitha filed an objection thereto and stated inter-alia that;
i. they are widows of the deceased’s brothers and have equal rights to the estate and specifically to titles nos. 1703 and 1727 which were ancestral lands.
ii.that the issue was being dealt with by an unnamed District Commissioner in Cases “nos. 147 and 39/2006”.
3. The response by Peter Ndola to the above claims was that the objectors had their own ancestral lands elsewhere and were only interested in disinheriting him as he was the deceased’s sole surviving son and that the claims had in any event been dismissed by the District Land Registrar, Machakos in 1986 while the deceased was still alive and the ownership by the deceased over the two plots was affirmed.
4. At this point I am only supposed to determine whether the objection has merit or not. As I understand an objection within the meaning of the Law of Succession Act, it should be raised to challenge the Petitioner’s right to be granted temporary letters of administration. That is the import of Rule 17 of the Probate and Administration Rules. In the present case, the objectors seem to have misunderstood the issues to be raised at this stage. Theirs is more of a Protest than an objection. They do not dispute the fact that Peter Mutua Ndola is entitled to apply for letters of administration and that their claim is limited to a share of title No. 796 aforesaid.
5. In the event, the best orders to make would be to dismiss the objection and further order as follows:-
i. Let temporary letters of administration be issued to Peter Mutua Ndola forthwith. He should apply for confirmation thereof within 60 days and serve the Application on the present objectors and directions will thereafter be given.
ii. Costs of the objection shall be in the cause.
6. Orders accordingly.
Dated and delivered at Machakos this 30thday of July2009.
ISAAC LENAOLA
JUDGE
In presence of: Applicant
ISAAC LENAOLA
JUDGE