[2015] KEHC 5348 (KLR)
The court found that there was no record of proceedings on 8-3-2011 demanding the return of the grant, and that the applicant, being a beneficiary, faces no legal impediment to applying for letters of administration in the absence of the co-administrator. The death of one administrator and the unavailability of the...
Source-derived case information.
- Citation
- [2015] KEHC 5348 (KLR)
- Parties
- Applicant: Erastus Adiedo Diab; Applicant: Francis Xavier Otieno; Deceased: Willis Onyango Diah
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 608 of 1999
- Procedural Posture
- Succession Cause / Ruling on Application to Vary Order Regarding Grant of Letters of Administration
- Outcome
- application allowed
- Legal Topics
- Succession, Letters of Administration, Grant Variation, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erastus Adiedo Diab
Applicant
Francis Xavier Otieno
Applicant
Willis Onyango Diah
Deceased
Procedural Posture
Succession Cause / Ruling on Application to Vary Order Regarding Grant of Letters of Administration
Legal Issues
- 1 Whether the court should vary the order issued on 8-3-2011 requiring the return of the grant issued on 14-2-2000.
- 2 Whether the applicant, as a beneficiary, can proceed to apply for letters of administration in the absence of the co-administrator.
Ratio Decidendi
The court found that there was no record of proceedings on 8-3-2011 demanding the return of the grant, and that the applicant, being a beneficiary, faces no legal impediment to applying for letters of administration in the absence of the co-administrator. The death of one administrator and the unavailability of the other justify allowing the applicant to proceed. The court thus permits the applicant to apply for the grant, reserving the right to make further orders should the co-administrator become available in the future.
Court Disposition
application allowed
Orders
- The applicant may proceed to apply for grants of letters of administration in respect to the estate of the deceased.
- If Francis Xavier becomes available in the future, the court shall make an appropriate decision.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
SUCCESSION CAUSE NO. 608 OF 1999
IN THE MATTER OF THE ESTATE OF: WILLIS ONYANGO DIAH.........DECEASED
AND
IN THE MATTER OF AN APPLICATION BY:
ERASTUS ADIEDO DIAB & FRANCIS XAVIER OTIENO.....................APPLICANTS
R U L I N G
By her application dated 15-5-2013 the applicant prays that this court do vary the order issued on 8-3-2011 which had ordered that a grant issued on 14-2-2000 be returned. She alleges that the same cannot be traced. The application is supported by the affidavit of the applicant sworn on 15-3-2014.
The estate was being administered by one Erastus Adiedo and Francis Xavier. She alleges that Erastus has since died and Francis Xavier cannot be traced. The court has perused the court file and there are no proceedings of 8-3-2011 demanding that the grant be returned.
Form the P & A 5 form it is clear that the applicant is one of the beneficiaries to the deceased estate. In the absence of Francis Xavier therefore there is no roadblock stopping the applicant from applying for the letters of administration in the estate of the her late father.
Consequently and assuming that Francis Xavier is unavailable the applicant may proceed to apply for grants of letters of administration in respect to the estate of the deceased. If Francis Xavier shall be available in future then the court shall make appropriate decision.
Dated, signed and delivered at Kisumu this 18th day of February, 2015.
H.K. CHEMITEI JUDGE