[2016] KEHC 579 (KLR)
The court held that the application was incompetent because the applicant invoked the Civil Procedure Rules and Act, which do not apply to succession matters except as expressly provided under Rule 63 of the Probate and Administration Rules. The proper procedure for dealing with reluctant family members in...
Source-derived case information.
- Citation
- [2016] KEHC 579 (KLR)
- Parties
- Applicant: Samwel Wycliffe Adee Ongiri; Respondent: Moses Otieno Ochola; Respondent: Jacob Okeyo Ochola
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Suit 10 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 Citations, Applicability of Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Wycliffe Adee Ongiri
Applicant
Moses Otieno Ochola
Respondent
Jacob Okeyo Ochola
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 for appointment of administrators in a succession matter.
- 2 Whether the respondents are the proper persons to be appointed as administrators of the estate of Ochola Osuri.
- 3 What is the correct legal procedure for compelling reluctant family members to take out letters of administration.
Ratio Decidendi
The court held that the application was incompetent because the applicant invoked the Civil Procedure Rules and Act, which do not apply to succession matters except as expressly provided under Rule 63 of the Probate and Administration Rules. The proper procedure for dealing with reluctant family members in succession matters is to file a citation under the Probate and Administration Rules, not to seek orders under the Civil Procedure Act or Rules. The court found no evidence establishing the respondents' relationship to the deceased sufficient for the orders sought and dismissed the application, advising the applicant to proceed under the correct legal framework.
Court Disposition
application dismissed as incompetent
Orders
- The application is dismissed.
- The applicant is at liberty to move the court under the appropriate provision.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
MISC. CIVIL SUIT NO. 10 OF 2016 (O.S)
IN THE MATTER OF THE ESTATE OF:
OCHOLA OSURI ................................................................................ (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
MOSES OTIENO OCHOLA........................... 1ST DEFENDANT/RESPONDENT
JACOB OKEYO OCHOLA ............................ 2ND DEFENDANT/RESPONDENT
RULING
1. By an originating summons dated 6th June, 2016, the plaintiff/applicant SAMWEL WYCLIFFE ADEE ONGIRI seeks orders that MOSES OTIENO OCHOLA and JACOB OKEYO OCHOLA be declared and named the administrators of the estate of OCHOLA OSURI (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 OCHOLA OSURI 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 OCHOLA OSURI 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