[2017] KEHC 717 (KLR)
The court held that the application for a citation was fundamentally misconceived because it was filed in a civil suit that had already been heard and determined, rather than in a succession cause as required by law. The Law of Succession Act and the Probate and Administration Rules provide a specific procedure and...
Source-derived case information.
- Citation
- [2017] KEHC 717 (KLR)
- Parties
- Plaintiff: Teresia Kagondu Elasto; Defendant: Mwobe Gathute; Defendant: Land Registrar Kirinyaga; Applicant: Charles Kathuti Mwobe; Respondent: Bernard Mwai Elasto
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 122 of 1995
- Procedural Posture
- Miscellaneous Application / Ruling on Citation Application
- Outcome
- citation struck out with costs to the respondent
- Judges
- NA Matheka
- Legal Topics
- Citation Procedure, Letters of Administration, Succession Forum, Probate and Administration, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Kagondu Elasto
Plaintiff
Mwobe Gathute
Defendant
Land Registrar Kirinyaga
Defendant
Charles Kathuti Mwobe
Applicant
Bernard Mwai Elasto
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Citation Application
Legal Issues
- 1 Whether a citation for grant of letters of administration can be issued within a civil suit that has already been determined.
- 2 Whether the High Court in a civil matter is the proper forum for succession proceedings and issuance of citations.
- 3 Whether the applicant is entitled to the orders sought under Rule 7(7) of the Probate and Administration Rules.
Ratio Decidendi
The court held that the application for a citation was fundamentally misconceived because it was filed in a civil suit that had already been heard and determined, rather than in a succession cause as required by law. The Law of Succession Act and the Probate and Administration Rules provide a specific procedure and forum for dealing with the estates of deceased persons, which must be initiated in the Probate and Administration registry. The applicant's attempt to invoke Rule 7(7) of the Probate and Administration Rules in a civil matter was misplaced, as there was no succession cause in place from which a citation could issue. Consequently, the orders sought were not capable of being...
Court Disposition
citation struck out with costs to the respondent
Orders
- The citation is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL CASE NO 122 OF 1995
TERESIA KAGONDU ELASTO........................................PLAINTIFF
VERSUS
MWOBE GATHUTE.................................................1ST DEFENDANT
LAND REGISTRAR KIRINYAGA.........................2ND DEFENDANT
RULING
By a citation dated 20th June 2017 CHARLES KATHUTI MWOBE in a document headed Republic of Kenya In the High Court of Kenya at NyeriCivil case number 122 of 1995 In the matter of the estate of TERESIA KAGONDU ELASTO(Deceased), cited BERNARD MWAI ELASTO. The citation is supported by the affidavit sworn on 20th June 2017 by the said CHARLES KATHUTI MWOBE.
According to the citation, TERESIA died on 20th August 2011 leaving the citee as the beneficiary to her estate. That the said Bernard had not taken out letters of administration or consented to the citers efforts to do so.
The citee opposed the citation through grounds of opposition filed by the firm of AP KARIITHI &CO advocates on 2nd October 2017 and an affidavit sworn by BERNARD MWAI ELASTO 10th of January 2017. The citation is misconceived and bad in law, and ought to be struck out.
I have perused the grounds of opposition, the affidavits and the file and it is clearly very old matter.
Charles Kathuti Mwobe is the son of the original 1st defendant and has appealed against the judgment of this court in this case NyeriCivil Appeal no. 6 of 2016 Charles Kathuti Mwobe vs. Teresia Kagondu Elasto; while Benard Mwai Elasto is the son of the original plaintiff, now the respondent in the appeal . The citation is intended to compel Benard to take up the position of his mother in the appeal now pending before the court of appeal.
The the applicant seems to have fallen into the same quagmire of poor legal advice that his father did and which was pointed out by Hon. Justice Omolo in a ruling in that appeal. Otherwise how does one file a citation in a Civil case that has been heard and determined?
This is contrary to the provisions of the Law of Succession Act which exists for the purpose of dealing with the estates of deceased persons, and provides the alw and procedure to be applied.
The applicant clearly intended to apply the provisions of Rule 7(7) of the P&A Rules which provides;
Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has—
(a;………………. or
(b) ; ………………or
(c) been issued with a citation calling upon him either to renounce such right or to apply for a grant.
This is the wrong forum. There is no succession cause in place from which a citation can issue and in any event, a petition for letters of administration would have to be lodged in the Probate and Administration registry.
Hence the orders sought are not capable of being issued.
The ‘citation’ is struck out with costs to the respondent.
Dated, delivered and signed this 4th December 2017 at Nyeri
Teresia Matheka
Judge
In the presence of;
Court Assistant; Hariet
Charles Kathuti Mwobe present
Mr. Nderi holding brief for Mr. Kariithi for the Benard Mwai Elasto