[2016] KEHC 1062 (KLR)
The court held that the application was incompetent because succession matters are governed by the Law of Succession Act and the Probate and Administration Rules, not the Civil Procedure Act or Rules except as specifically provided. The applicant wrongly invoked Order XXXVI Rule 2 of the Civil Procedure Rules and...
Source-derived case information.
- Citation
- [2016] KEHC 1062 (KLR)
- Parties
- Applicant: Samwel Wycliffe Adee Ongiri; Respondent: Kennedy Ouma Njoga; Respondent: Felix Otieno Njoga
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Suit 11 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Originating Summons Seeking Appointment of Administrators
- Outcome
- application dismissed as incompetent
- Judges
- DO Ohungo
- Legal Topics
- Probate and Administration, Appointment of Administrators, Procedure for Succession Matters
- 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
Samwel Wycliffe Adee Ongiri
Applicant
Kennedy Ouma Njoga
Respondent
Felix Otieno Njoga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Originating Summons Seeking Appointment of Administrators
Legal Issues
- 1 Whether the applicant can move the court under the Civil Procedure Rules and Act in a succession matter.
- 2 Whether the respondents should be appointed administrators of the estate of Akoth Njoga (deceased) for purposes of determining the applicant's rights as a creditor.
- 3 What is the proper procedure for compelling reluctant family members to take up letters of administration.
Ratio Decidendi
The court held that the application was incompetent because succession matters are governed by the Law of Succession Act and the Probate and Administration Rules, not the Civil Procedure Act or Rules except as specifically provided. The applicant wrongly invoked Order XXXVI Rule 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, which do not apply to succession proceedings. The correct procedure would have been to file a citation under the Probate and Administration Rules to compel the respondents to take up letters of administration. As such, the application was dismissed, but the applicant was granted liberty to move the court under the appropriate legal provisions.
Court Disposition
application dismissed as incompetent
Orders
- The application is dismissed as incompetent.
- The applicant is at liberty to move the court under the appropriate provision.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
MISC. CIVIL SUIT NO. 11 OF 2016 (O.S)
IN THE MATTER OF THE ESTATE OF:
AKOTH NJOGA ....................................................................... (DECEASED)
AND
IN THE MATTER OF AN APPLICATION BY SAMUEL WYCLIFFE ADEE ONGIRI FOR THE HONOURABLE COURT TO APPOINT KENNEDY
OUMA NJOGA AND FELIX OTIENO NJOGA AS ADMINISTRATORS OF THE ESTATE OF AKOTH NJOGA (DECEASED)
BETWEEN
SAMWEL WYCLIFFE ADEE ONGIRI .................... PLAINTIFF/APPLICANT
VERSUS
KENNEDY OUMA NJOGA ........................... 1ST DEFENDANT/RESPONDENT
FELIX OTIENO NJOGA ................................ 2ND DEFENDANT/RESPONDENT
RULING
1. By an originating summons dated 6th June, 2016, the plaintiff/applicant SAMWEL WYCLIFFE ADEE ONGIRI seeks orders that KENNEDY OUMA NJOGA and FELIX OTIENO NJOGA be declared and named the administrators of the estate of AKOTH NJOGA (deceased) for purposes of determining his rights as a creditor to the estate.
2. The impetus for this application is that the applicant has all along known the respondents as the biological children of the deceased AKOTH NJOGA and they infact presented themselves as such.
3. On 8th February 2009, the applicant purchased a parcel of land measuring 0. 12 hectares known as East Karachuonyo/Kamser Saka/1087 from AKOTH NJOGA at a sum of Kshs.100,000/= by an agreement marked A. However the vendor/deceased passed on before the transfer could be effected.
4. The Respondents have been reluctant to be confirmed as administrators of the estate yet when the agreement was entered into they had participated as witnesses. What evidence is there that the respondents are children of the deceased? Surely witnessing an agreement of sale cannot be proof of a parental relationship especially when the agreement does not mention such relationship.
5. It is not very clear to me why the applicant’s counsel has decided to move this court under Order xxxvi Rule 2of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, yet Succession causes are governed by the Law of Succession Act (Cap 160).
6. Succession matters are governed by their own procedure and Civil Procedure Act and Rules only apply in such circumstances as are permitted by the Law of Succession Act and the Probate and Administration Rules under Rule 63 P&A Rules, Section 3A of the Civil Procedure Act is not applicable to Succession Cases.
Rule 63 provide:-
“Save as is in the Act or these rules .... the following provision of the Civil Procedure Rules namely Order V, X, XI, XV, XVIII, XXV, XLIV and XLIX ..... shall apply.....”
Order XXXV is not among them.
7. What is the legal position for one to realize their rights when confronted with a reluctant administrator?
8. I think the situation is addressed under Part VI Rule 21 and 22of the Probate and Administration Rules.
9. The applicant ought to file a citation which would then be served on the member of the deceased’s family requiring them to indicate their willingness as reluctance to take up letters of administration. It is from this point that the court would give directions.
10. In my view this application is incompetent and is dismissed.
11. The applicant is at liberty to move the court under the appropriate provision.
Delivered and dated this 30th day of November, 2016 at Homa Bay
H.A. OMONDI
JUDGE