Daniel Moronge Mabiria v Charles Makori Siro [2012] KEHC 2196 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

SUCCESSION CAUSE 465 OF 2011

IN THE MATTER OF THE ESTATE OF ANNAH SIRO .................... DECEASED

AND

DANIEL MORONGE MABIRIA ........................................................ APPLICANT

-VERSUS-

CHARLES MAKORI SIRO .......................................................... RESPONDENT

RULING

The applicant, Daniel Moronge Mabira has taken out citation proceedings against the respondent Charles Makori Siro. He seeks to be allowed to file and obtain grant of Letters of Administration in respect of the estate of Annah Bwari Siro (deceased). The applicant hereinafter citor is the step brother of the deceased while the respondent hereinafter citee is the eldest son of the deceased. The citor has averred in his supporting affidavit that the citee being first in priority with respect to the deceased’s estate has neglected to take out Letters of Administration.

In his replying affidavit, the citee confirms that he is the son of the deceased who by law ranks first in priority in succeeding his deceased mother’s estate. He however avers that the deceased had by the time of her death disposed of land parcel No. West Kitutu/Bomatara/ 2784 to one Stephen Nyamoti Thomas who subsequently sold a portion thereof to one Charles Nyakundi.

The application came before me for hearing on 14th February, 2012. Parties consented to canvass the application by way of written submissions within a period of 30 days. The respondent filed his submissions on 16th May, 2012 while the applicant failed to file his.

I have considered the application on the basis of the affidavits on record and the submissions of the respondent. It is clear from the citee’s replying affidavit and submission that he is not interested at all in taking out Letters of Administration on his deceased mother’s estate. He has submitted that the deceased had no property in her name at the time of her death. In essence, he has not seen any value in undertaking succession proceedings. That being the case, I see no reason why the citor who is interested in pursuing succession proceedings and has satisfied the court that he is a beneficiary to the estate of the deceased should not be allowed to apply for letters of administration. It is not for this court to decide through this application whether or not the deceased had any property to pass on at the time of her death.

Accordingly I allow the application dated 23rd May, 2011 with no order as to costs.

Ruling dated, signedand delivered at Kisiithis 21st day of September, 2012.

R. LAGAT-KORIR

JUDGE

In the presence of:

.................................... for applicant

.................................... for respondent

.................................... court clerk

R. LAGAT-KORIR

JUDGE