[2013] KEHC 4923 (KLR)
The court found that the objector was indeed a daughter of the deceased, as corroborated by affidavits from the objector and the petitioner's own sons. The petitioner's failure to seek the objector's consent and her omission from the list of beneficiaries demonstrated a lack of protection for the objector's...
Source-derived case information.
- Citation
- [2013] KEHC 4923 (KLR)
- Parties
- Applicant: Roseline Kathanji Mbogo; Respondent: Catherine Mecky Warue Mbogo
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 318 of 2010
- Procedural Posture
- Succession Cause / Ruling on Objection to Grant of Letters of Administration
- Outcome
- Objection allowed. Grant of letters of administration to be issued jointly to petitioner and objector.
- Legal Topics
- Succession, Grant of Letters of Administration, Beneficiary Rights, Consent of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Roseline Kathanji Mbogo
Applicant
Catherine Mecky Warue Mbogo
Respondent
Procedural Posture
Succession Cause / Ruling on Objection to Grant of Letters of Administration
Legal Issues
- 1 Whether the objector, as a daughter of the deceased, was unlawfully excluded from the list of beneficiaries.
- 2 Whether the petitioner's failure to seek the objector's consent invalidates the grant application.
- 3 Whether the grant of letters of administration should be issued jointly to protect all beneficiaries' interests.
Ratio Decidendi
The court found that the objector was indeed a daughter of the deceased, as corroborated by affidavits from the objector and the petitioner's own sons. The petitioner's failure to seek the objector's consent and her omission from the list of beneficiaries demonstrated a lack of protection for the objector's interests. Given these circumstances, the court exercised its discretion under Section 66 of the Law of Succession Act to ensure that the interests of all beneficiaries were protected. The court held that the grant of letters of administration should be issued jointly to both the petitioner and the objector, thereby safeguarding the rights of all parties involved.
Court Disposition
Objection allowed. Grant of letters of administration to be issued jointly to petitioner and objector.
Orders
- Objection to the grant of letters of administration is allowed.
- Grant of letters of administration to the estate of Mbogo Kauma shall be issued jointly in the names of the petitioner and the objector.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
High Court at Embu
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IN THE MATTER OF ESTATE OF MBOGO KAUMA............................. DECEASED
ROSELINE KATHANJE MBOGO .......................................................... PETITIONER
VERSUS
CATHERINE MECKY WARUE MBOGO.................................................. OBJECTOR
R U L I N G
This is the objector's objection to making of Grant dated 14/2/2011. It's based on 2 grounds;
a)That the Petitioner did not seek her consent before filing the petition.
b)The Petitioner did not include her name in the list of beneficiaries
The objection is accompanied by a petition by way of cross Application for Grant dated 16/2/2011. The application is supported by the affidavits of the Objector, Duncan Kauma and George Kauma both being the sons of the Petitioner and the deceased. The averments in all the affidavits point to the fact that the Objector was the daughter of the deceased. And that he brought her up alongside the other children. And that Duncan & George refused to sign the consent form because they noticed that their mother (Petitioner) was being discriminatory against their sister (the objector). I have not seen any response in form of a Replying affidavit by the Petitioner to these affidavits.
Both Counsels have filed submissions concerning the objection by consent.
The Objector has stated her relationship with the deceased. The Petitioner is her aunt but again her step mother. The reason being that her biological mother is a sister to the Petitioner. Since the averments in the affidavits of the Objector and 2 of the Petitioner's own sons have indicated that indeed the Objector is the deceased's daughter, I find no reason to disbelieve them. Her interest must be protected.
The two sons have also not signed the consent forms as can be witnessed from the forms filed. Section 66 of the Law of Succession Act provides for a general guide on the order of preference for those to be given grant.
However the Court has the discretion after considering ALL circumstances and in the best interest of all concerned to give grant to the right person/persons.
The Objector as a child of the deceased must have her interest protected especially after the Petitioner elected to keep her out of the whole process. Her consent was never sought and she was omitted from the list of beneficiaries. The Petitioner can't be trusted to protect that interest.
I therefore find that in the interest of all, the application of objection to the grant of letters of Administration of the estate of the deceased Mbogo Kauma is allowed. The result is that grant of letters of Administration shall be issued in the joint of names of the Petitioner and the Objector. This is the to ensure that the interest of both parties are protected.
DATED AND DELIVERED AT EMBU THIS 19TH DAY OF FEBRUARY 2013.
H.I. ONG'UDI
J U D G E
In the presence of;
Mr. Kamunyori for Objector
Mr. Waweru for Ithiga for Petitioner
Njue – C/c