[2005] KEHC 2066 (KLR)
The court held that the application for a limited grant of Letters of Administration ad Colligenda was fatally defective because it was brought by Summons instead of by Petition in Form 85 as required by Rule 36(3) of the Probate and Administration Rules. Additionally, the applicant failed to provide the date of...
Source-derived case information.
- Citation
- [2005] KEHC 2066 (KLR)
- Parties
- Applicant: Philip Tembu M. Makheti; Respondent: Timothy Mukwa Mangoli (deceased)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 36 of 2005
- Procedural Posture
- Succession Cause / Ruling on Application for Limited Grant of Letters of Administration Ad Colligenda
- Outcome
- Application struck out as fatally defective.
- Legal Topics
- Succession Procedure, Limited Grant, Letters of Administration, Form of Application
- 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
Philip Tembu M. Makheti
Applicant
Timothy Mukwa Mangoli (deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Limited Grant of Letters of Administration Ad Colligenda
Legal Issues
- 1 Whether the application for a limited grant of Letters of Administration ad Colligenda was properly brought before the court.
- 2 Whether failure to comply with prescribed form and procedure under the Law of Succession Act and Probate and Administration Rules is fatal to the application.
Ratio Decidendi
The court held that the application for a limited grant of Letters of Administration ad Colligenda was fatally defective because it was brought by Summons instead of by Petition in Form 85 as required by Rule 36(3) of the Probate and Administration Rules. Additionally, the applicant failed to provide the date of death or evidence of death of the deceased, which are essential prerequisites for such an application. The court emphasized that compliance with the prescribed form and procedure is mandatory, and non-compliance cannot be excused. Consequently, the application was struck out.
Court Disposition
Application struck out as fatally defective.
Orders
- The application for a limited grant of Letters of Administration ad Colligenda is struck out.
Full Case Text
Judgment text and source record
5 paragraphs
IN THE HIGH COURT OF KENYA AT KAKAMEGA SUCCESSION CAUSE NO. 36 OF 2005 IN THE MATTER OF THE ESTATE OF TIMOTHY MUKWA MANGOLI ………………………………………………………. DECEASED A N D PHILIP TEMBU M. MAKHETI …………………………… PETITIONER R U L I N G
Philip Tembu M. Makheti, the Applicant, sought in his application by Summons dated 26. 1.2005 a limited grant of Letters of Administration ad Colligenda under Section 67 of the Law of Succession Act, Cap 160, to enable him to be substituted in place of his father, Timothy Mukwe Mangoli, the Respondent in Kakamega CMCC No. 82 of 2003, who is said to have died.
The date of death of the deceased was not given nor was any evidence of death furnished. Under Rule 36(3) of the Probate and Administration Rules, an application under S.67 of the Succession Act is required to be made by Petition in Form 85. The said application was brought by Summons. It was fatally defective and it is therefore struck out.
Dated at Kakamega this 24th day of May, 2005.
G. B. M. KARIUKI J U D G E