Esther Kanja Francis v Latif M’ikiara & Rael Kabiri [2015] KEHC 2100 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO. 313 OF 2003

IN THE MATTER OF THE ESTATE OF M’IKIARA M’MUTHURI (DECEASED)

ESTHER KANJA FRANCIS ……….…………PETITIONER/APPLICANT

VE R S U S

LATIF M’IKIARA..…………….1STOBJECTOR/RESPONDENT

RAEL KABIRI…………………… 2ND OBJECTOR/RESPONDENT

RULING

1.     The Petitioner/Applicant ESTHER KANJA FRANCIS through an application dated 18th September 2012 pursuant to Section 67 (1) of the Law of Succession Act (Cap. 160) Laws of Kenya and Rule 73 of the Probate and AdministrationRules seeks an order that the court be pleased to grant temporary letters of Administration to her and that costs be inthe cause.

2.     The applicants’ application is premised on the grounds on the face of the application interalia; that the petitioner/applicant filed this cause and was granted lettersof administration intestate on 25th April, 2005, as the legal wife of the deceased; that pursuant to objections by the objector, the said grant was revoked, that as of now, there is no legal representative of the deceased’s estate to administer the estate and  preserve the assets; the applicant further relied on supporting affidavit dated 1st October 2012 which reiterates the grounds on the face of the application in support of this application.

3.     The first objector is opposed to the application whereas the 2ndobjector has not filed any replying affidavit.

4.     The first objector through a replying affidavit dated 18th March 2013 deponed inter alia; that he is the only child of the deceased and his first wife one Asha and the petitioner/applicant is the 4th wife of the deceased; that the petitioner is a stranger; that the deceased had 2nd wife called Murui (deceased) and the 3rd wife called Rael Kabiri who is a co-objector; that the children of the 2ndwife are Stanley Murangiri and Janet Kithira; and those  of the 2nd wife are Eunice Kagwiria and Judith Makandi and those of the petitioner are Jeniffer , Mwenda, Mary Nkatha and Patrick Kithinji; that there is a ruling of the court dated 30th March 2007 which revoked the grant and observed that the objectors objection still subsists; that the objector’s objection should be heard first and a determination be made as to whether he is a son of the deceased and therefore a dependant or not; that there is a pending cross-petition which should be heard first to determine the children of the deceased; that on 19th October2011 the court ordered parties to frame issues for determination but instead of that the petitioner brought an application meant to exclude everybody else; that the court has found that the petitioner is not an honest person to be given sole responsibility of the deceased estate and on its own motion revoked the grant; that it does not assist the petitioner to keep on saying that they are strangers to the estate instead of taking a date for determination of issues.

5.     I have carefullyconsidered the petitioner’s/applicant’s application and the objectors replying affidavit, and the rival counsel submission.  The issue for determination is whether the applicant’s applicationis premature and whether the same should be granted.

6.     The court in its ruling dated 30th March 2007 revoked grant issued to the petitioner herein on 25th April 2005.  The objectors subsequently filed an application dated 26th August 2008 seeking leave to bring an objection out of time.  The court granted objector’s application through its ruling dated 20th January 2009 giving them 14 days to file an objection.  The objectors filed answer to the petition for grant dated 2nd February 2002 and cross-petition on 19thOctober, 2011.  Court gave direction that matter be determined by way of viva voce evidence and parties were directed to frame issues within 21 days from the date of the direction.

7.     The Petitioner/Applicant being aware of the existence of answer to petition and court’s direction on how to proceed with the matter has instead field an application to be issued with temporary grant of letters of administration. That in my view if the orders sought by the applicant are granted it would defeat the purpose of the objectors objection.  The objectors’ contention is that the petitioner/applicant will not administer the estate of the deceased fairly and faithfully; that the intended cross-petition must be rendered nugatory if the application is allowed before hearing and determining of the objectors objection.

8.     Having considered the application and objectors objection I am satisfied that the interest of justice shall not lie with granting temporary letters of administration to the petitioner/applicant but to proceed to hear and determine the objection by way of viva voce evidence as ordered on 19th October 2011. I, therefore, find and hold that the petitioner’s application is premature and without merits.

I therefore dismiss the same with costs.

DATED at Meru this 1st day of October, 2015.

J.A. MAKAU

JUDGE

1. 9.2015

Delivered in open court in the presence of:

Mr. M. Kariuki for petitioner/applicant

M/s E.G. Mwangi for the objector

Court clerk – Faith/Ibrahim

R.P.V. WENDOH

JUDGE

1. 10. 2015