[2016] KEHC 6908 (KLR)
The court held that section 66 of the Law of Succession Act provides a clear order of preference for the issuance of letters of administration, placing the surviving spouse at the top of the list. The applicant, being the widow of the deceased, is entitled to priority in the grant of letters of administration. There...
Source-derived case information.
- Citation
- [2016] KEHC 6908 (KLR)
- Parties
- Applicant: Teresa Wangui Ngara; Respondent: Kiama Gathuri Ngara; Respondent: Karoki Gathuri
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 549 of 2012
- Procedural Posture
- Succession Cause / Ruling on Application for Grant of Letters of Administration
- Outcome
- Application allowed. Grant of letters of administration issued to the applicant.
- Legal Topics
- Succession, Letters of Administration, Order of Preference, Intestate Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresa Wangui Ngara
Applicant
Kiama Gathuri Ngara
Respondent
Karoki Gathuri
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Grant of Letters of Administration
Legal Issues
- 1 Whether the applicant, as widow of the deceased, should be granted letters of administration to the estate.
- 2 Whether the court should follow the statutory order of preference under section 66 of the Law of Succession Act.
Ratio Decidendi
The court held that section 66 of the Law of Succession Act provides a clear order of preference for the issuance of letters of administration, placing the surviving spouse at the top of the list. The applicant, being the widow of the deceased, is entitled to priority in the grant of letters of administration. There was no compelling reason to deviate from this statutory order of priority. The court exercised its discretion in favour of the applicant and granted her the letters of administration, while allowing the respondents the liberty to file a protest at the confirmation stage if they wished to contest the proposed distribution of the estate.
Court Disposition
Application allowed. Grant of letters of administration issued to the applicant.
Orders
- A grant of letters of administration to the estate of the late Ngara Gathuri alias Ngaara Gathuri-deceased is hereby issued to Teresa Wangui Ngara.
- The respondents may file a protest to the confirmation of the grant if they wish to contest the distribution of the estate.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 549 OF 2012
IN THE MATTER OF THE ESTATE OF THE LATE NGARA GATHURI alias NGAARA GATHURI-DECEASED
Teresa Wangui Ngara.........................................…..……...................………………..Applicant
Versus
Kiama Gathuri Ngara........................................................................................1st Respondent
Karoki Gathuri.................................................................................................2nd Respondent
RULING
On 13th February 2015, pursuant to an application dated 20th February 2014, filed by the applicant herein, this honourable court revoked the grant of letters of administration to the deceased's estate issued to the Respondents herein. Following the said order, the applicant herein, a widow to the deceased filed the application now under consideration dated 27th April 2015 seeking orders that the grant of letters of administration herein be issued her. I have considered the grounds on the face of the said application, the supporting affidavit and the replying affidavit.
Guidance in this application can be found in the provisions of Section 66 of the Law of Succession Act[1] which provides as follows:-
"When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-
(a) surviving spouse or spouses, with or without association of other beneficiaries;
(b) other beneficiaries entitled on intestacy, with priority to their respective beneficial interests as provided by Part V;
(c) the public trustee; and
(d) creditors
Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.
The order of preference is provided for under section 66cited above. Under section 66, the court has a final discretion as to the person or persons to whom a grant in the best interests of all concerned shall be made, but the guiding principle is the order of preference provided in the said section and top on the list is the surviving spouse or spouses with or without association of the other beneficiaries. The Respondents are brothers to the deceased.
I find no reason for this court to deviate from the order of priority provided under the said section and the applicant being the widow of the deceased tops the said order of priority. Guided by the said section and in exercise of this courts discretion as provided for under the said section, I allow the application dated 27th April 2015 and order as follows:-
That a grant of letters of administration to the estate of the late Ngara Gathuri alias Ngaara Gathuri-deceased be and is hereby issued to Teresa Wangui Ngara.
That the Respondents shall be at liberty to file a protest to the confirmation of the said grant (if they so wish) in the event they find it fit to contest the distribution of the estate as shall be proposed in the application for confirmation.
No orders as to costs.
Right of appeal 30 days
Dated at Nyeri this 19thday of February2016
John M. Mativo
Judge
[1] Cap 160, Laws of Kenya