[2004] KEHC 2458 (KLR)
The court found that the applicant failed to demonstrate urgency justifying the grant of letters of administration ad colligenda bona, as the property in question (shares in a cooperative society) was not at risk of loss. Additionally, the application did not comply with statutory requirements regarding the number...
Source-derived case information.
- Citation
- [2004] KEHC 2458 (KLR)
- Parties
- Applicant: Winifred Gesare Mogaka
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 148 of 2004
- Procedural Posture
- Probate and Administration Cause / Ruling on Chamber Summons for Letters of Administration Ad Colligenda Bona
- Outcome
- application dismissed
- Judges
- GMA Dulu
- Legal Topics
- Succession, Letters of Administration, Customary Marriage, Minor Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Winifred Gesare Mogaka
Applicant
Procedural Posture
Probate and Administration Cause / Ruling on Chamber Summons for Letters of Administration Ad Colligenda Bona
Legal Issues
- 1 Whether the applicant is entitled to letters of administration ad colligenda bona for the estate of the deceased.
- 2 Whether urgency is established to justify the grant of such letters for cooperative society shares.
- 3 Whether the application complies with legal requirements regarding the number of administrators and proof of marriage.
Ratio Decidendi
The court found that the applicant failed to demonstrate urgency justifying the grant of letters of administration ad colligenda bona, as the property in question (shares in a cooperative society) was not at risk of loss. Additionally, the application did not comply with statutory requirements regarding the number of administrators, especially given the existence of minor beneficiaries. The court also questioned the sufficiency of evidence regarding the applicant's marriage to the deceased, noting inconsistencies in the asserted customary law. Consequently, the application was dismissed and the court directed that the normal process for grant of letters of administration be followed.
Court Disposition
application dismissed
Orders
- The application for letters of administration ad colligenda bona is dismissed.
- Grant of letters of administration to follow the normal process as required by law.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET PROBATE AND ADMINISTRATION CAUSE NO.148 OF 2004
IN THE MATTER OF THE ESTATE OF SAMUEL CHERUIYOT TOO (DECEASED) AND WINIFRED GESARE MOGAKA ………………………………....……PETITIONER
RULING
This is a Chamber Summons brought under section 67(1) of the Law of Succession Act and Rules 36 and 49 of the Probate and Administration Rules. It is dated 12th May 2004 and was brought under certificate of urgency. It seeks for orders that letters of administration ad colligenda bono to the estate of the late Samuel Cheruiyot Too be granted to Winifred Gesare Mogaka.
I have considered the documents filed in the application and the submissions of counsel for the applicant. The property of the deceased in issue are shares in a cooperative society and on that score I do not understand how it becomes urgent to withdraw that money, as there is no allegation that the money will be lost.
Secondly, the deceased is said to have left young children one born on 24th August 1994 and the other born on 1st October 1998 and the applicant to the letters of administration is only one person, contrary to the law. Thirdly, there are photocopies of affidavits, not originals, indicating that the applicant was married to the deceased, under Nandi customary law, while the applicant who was the woman, is a Kisii. I would imagine that the customary marriage would therefore be under Kisii customary law.
I am not persuaded that there are merits in the applicant. I therefore dismiss the application. Grant of letters of administration to follow the normal process as required by law.
Dated and Delivered at Eldoret this 21ST Day of June 2004
George Dulu
Judge
Ruling read in open court in the presence of Ms. Konuche for the applicant.
George Dulu
Judge
(I certify this a true copy of the original)
DEPUTY RGISTRAR