[2014] KEHC 3285 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

SUCCESSION CAUSE NO. 410 OF 2005

IN THE MATTER OF THE ESTATE OF HEINZ OSTERTAG (DECEASED)

PIA MIRIAM STEIN OSTERTAG....................................APPLICANT

VERSUS

1. TERRY NZILANI IBRAHIM

2. GERDA OSTERTAG................................................OBJECTORS

RULING

Before this court is the chamber summons dated 24th May, 2013 seeking the following orders

“1. THAT the Honourable Court be pleased to declare that any interests and/or rights that Terry Nzilani Ibrahim may have had to the estate of the deceased HEINZ OSTERTAG have since been extinguished by reason of re-marriage.

2. THAT the said Terry Nzilani Ibrahim’s name be removed from further proceedings in this petition.

3. THAT the order issued on 10th December, 2010 be varied to exempt the participation of the advocate of Terry Nzilani Ibrahim.

4. THAT this court do determine the entitlement/or otherwise of the 2 remaining parties based on the affidavits already on record and/or any further affidavits the parties may be required to file.

5. THAT the costs of this application be provided for.”

The estate in issue in this cause is that of MR. HEINZ OSTERTAG (hereinafter referred to as ‘the deceased’) who passed away in Mombasa, Kenya on 12th February, 2005. The deceased was a German citizen. The undisputed facts were that the deceased first married GERDA OSTERTAG (the 2nd objector) in Germany with whom he bore two daughters PIA MIRIAM OSTERTAG and PATRICIA OSTERTAG both of whom were adults at the time of his death. The deceased divorced his first wife ‘Gerda’ in 1976 and in 1985 married his second wife YVONNE OSTERTAG. The couple who bore no children together moved to Kenya in 1995. In 1999 the deceased separated from his second wife ‘Yvonne’ and began to cohabit with TERRY NZILANI IBRAHIM (the 1st Objector herein). The two cohabited at the home of the deceased on plot No. 3958 Section I Mainland in Nyali in Mombasa. In 2004 a year before his death the deceased filed in the High Court in Mombasa Divorce Cause No. 37 of 2004 seeking the dissolution of his marriage to his second wife Yvonne. He unfortunately died before this divorce cause had been finalized therefore no final orders or decree absolute was ever issued.

After the death of the deceased his second wife ‘Yvonne Ostertag’ petitioned for letters of administration listing herself as the widow of the deceased and his two adult daughters ‘Pia Miriam’ and ‘Patricia’ as beneficiaries to the estate. The 1st objector Terry Nzilani filed a notice of objection on 2nd May, 2005 in which she claimed to also be a wife to the deceased as they had been married under Kamba customary law. The first wife ‘Gerda’ also objected on the basis that she had continued to be a dependant of the deceased even after their divorce in Germany. One of the daughters of the deceased ‘Pia Miriam Ostertag’ filed a parallel petition for grant being Mombasa High Court Succession Cause No. 5 of 2005 which was consolidated with the present cause.

On 23rd August, 2010 ‘Pia Miriam’ filed a chamber summons seeking to have the rental income derived from the estate premises collected and deposited into a joint interest earning account in the names of all the advocates on record. The house of the deceased in plot No. 3958 had been vacated by the said Terry Nzilani who then proceeded to rent it out. The 1st objector ‘Terry Nzilani’ defended this particular application. On 10th December, 2010 the court made orders with respect to the deposit of rents and maintenance of the premises. Thereafter the applicant Pia Miriam filed this present application. There was no reply to this application by the 1st objector ‘Terry Nzilani’. On 26th July, 2014 MR. OMOLLO counsel for the applicant informed the court that Mr. Kenzi who is on record for the 1st objector had been served but did not appear. As such court received written submissions from the advocates for the applicant and the 2nd objector only. I have carefully perused this file. I note that there is no evidence of service of this particular chamber summons dated 24th May, 2013 on Mr. Kenzi Advocate for the 1st objector. The affidavits of service in the file dated 18th May, 2012 only refers in paragraph 2 to service of a ‘mention notice’ on the firm of Munyao & Kenzi Advocates. There is no affidavit of service confirming the service of the present application on the 1st objector’s advocate. This is prejudicial to the 1st objector. Clearly her advocate cannot be expected to have responded to an application if he had not been served with the same. In the circumstances I will not prepare any ruling with respect to the chamber summons dated 24th May, 2013. The same is hereby struck out for want of service with costs to the 1st and 2nd objectors.

Regarding the objection raised by the 1st and 2nd objectors to the grant of letters of administration to the applicant, this remains pending and is yet to be heard and determined. Given the age of this matter and in order to expedite the case, I direct that the same be set down for hearing expeditiously within 90 days henceforth. I further direct that the objection be disposed of by way of vive voce evidence.

Dated and delivered in Mombasa this 15th day of August, 2014.

M. ODERO

JUDGE

In the presence of:

Mr. Mutugi for Petitioner/Applicant

Mr. Omollo for Respondent

Mr. Njenga h/b Mr. Kenzi for 1st Objector

Court Clerk Mutisya