[2002] KEHC 1017 (KLR)
The court held that, notwithstanding the affidavit of service, the absence of the respondent's affidavit or signed consent is a critical omission in an application to replace a co-administrator. Proper service and an opportunity for the respondent to state his position are essential to ensure fairness and compliance...
Source-derived case information.
- Citation
- [2002] KEHC 1017 (KLR)
- Parties
- Applicant: Zambezi Ritey; Respondent: Samperu Nkongoni
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1679 of 1996
- Procedural Posture
- Succession Cause / Interlocutory Directions on Service and Response
- Outcome
- adjourned for fresh service and directions; no final orders on the merits
- Judges
- JM Khamoni
- Legal Topics
- Administration of Estates, Grant of Letters of Administration, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zambezi Ritey
Applicant
Samperu Nkongoni
Respondent
Procedural Posture
Succession Cause / Interlocutory Directions on Service and Response
Legal Issues
- 1 Whether the absence of the respondent's affidavit or signed consent is fatal to the application for replacement of co-administrator.
- 2 Whether substituted service is sufficient in the circumstances.
Ratio Decidendi
The court held that, notwithstanding the affidavit of service, the absence of the respondent's affidavit or signed consent is a critical omission in an application to replace a co-administrator. Proper service and an opportunity for the respondent to state his position are essential to ensure fairness and compliance with the rules of natural justice. The court therefore directed that fresh service be effected upon the respondent through the court's process server, and that the respondent be given a further opportunity to file and serve his replying affidavit or written consent within 14 days of service.
Court Disposition
adjourned for fresh service and directions; no final orders on the merits
Orders
- Fresh service to be effected upon the respondent through the court's process server not less than 14 clear days before the next hearing date.
- Documents to be served include the applicant's summons dated 12th June 2002, supporting affidavit with annexures, and a copy of this court order.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI SUCCESSION CAUSE NO. 1679 OF 1996
IN THE MATTER OF THE ESTATE OF BENSON BITEY OLE
SAMPERU (DECEASED)
ZAMBEZI RITEY …………………………………… APPLICANT
VERSUS
SAMPERU NKONGONI …………………………. RESPONDENT
COURT:
While I am satisfied with what Baraka Janekin Ritey, the proposed co-Administrator has said and I am ready to dispense with appearance by or affidavit or consent from Sankule Faridi Ritey said to be sitting for Form IV examination, I feel reluctant to accept the absence of the Respondent, the co-Administrator to be replaced, as an affidavit or signed consent from him, even if he does not want to come to court is very crucial. Notwithstanding what is stated in the affidavit of service dated 4th November 2002 therefore, I do hereby direct that fresh service be effected upon him through this court’s process server not less than 14 clear days to the date of further hearing to be taken at the Registry.
The documents to be served to include the Applicant’s summons dated 12th June 2002, its supporting affidavit together with annextures as well as a copy of this court order, to enable the Respondent Samperu Nkongoni file and serve his replying affidavit, stating whether or not he supports the Applicant’s summons. Alternatively he may file and serve a written and signed consent in support of the Applicant’s summons or choose to come to this court to let the court know his views. The said Respondent to file his papers, if any, within 14 days from the date of service upon him, of the Applicant’s aforesaid summons.
Dated this 5th Day of November 2002.
J.M. KHAMONI
JUDGE