Gichanga Ngumi v Felishina Wamuyu, James Muthami Gichanga & Grace Wambui Gichanga [2014] KEHC 395 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCCESSION CAUSE NO. 140 OF 2013

IN THE MATTER OF THE ESTATE OF:

GICHANGA NGUMI.............................. DECEASED

AND

FELISHINA WAMUYU............................ PETITIONER/APPLICANT

VERSUS

JAMES MUTHAMI GICHANGA

GRACE WAMBUI GICHANGA ….....................  OBJECTORS

RULING

By an application dated 8th February 2013, the petitioner FELISHINA WAMUYU applied that GRACE WAMBUI GICHANGA and JAMES MUTHAMI GICHANGA be issued with Letters of Administration Ad Litem of the Estate of late GICHANGA NGUMI deceased.

The application was premised on the ground that the applicant was a defendant in Nyeri High Court Civil Case No.172 of 1979 (O.S) wherein the deceased was the plaintiff and that the family of the deceased had failed/refused and or neglected to take out letters of administration and as such the said suit was likely to abate before substitution.

In response to the said application, JAMES MUTHAMI GICHANGA swore an affidavit in which he deponed that no party can be forced to apply for letters of administration and that the suit which the petitioner sought to have substituted in was concluded over 30 years ago and therefore the petition was an abuse of the court process.

Submissions

On behalf of the applicant, it was submitted that underSchedule V Article 14, 15 and16 ofP & A Rules, the court may issue letters to such an unwilling nextof kin for the end of justice.  It was submitted thatRule 14specifically provided for the same in the following terms:-

“14 “When it is necessary that the representative of a deceased person be made a party to a pending suit and executors or persons entitled is unable or unwilling to act, letters of administration may be granted to the nominee of a party in the suit limited for the purposes of representing the deceased therein or in any other case between the parties or any other parties touching on the matter at issue in the cause or suit and until a final decree shall be made therein and carried into complete execution.”

On behalf of the respondent it was submitted thatRule 36ofP&A Rulesprovides for application for limited grant and colligenda whose main purposes is to collect and preserve the estate pending the making of full grant which as not the case in the present application.  It was further submitted that Civil Suit No.172 of 1979 (O.S) was finalized over 30 years ago and that the applicant seek to set aside the said judgment.

It was submitted thatRule 2ofP&A Rulesdefines an applicant as a person who is applying or have applied for a grant in other relief under the Act or these Rules.  It was further submitted that it was wrong for the applicant to file the petition on behalf of the respondent because they were capable of doing so on their own.  It was submitted that the applicant had not filed any evidence to prove that the respondents were unwilling to act and that the law can not compel one against his will to be an administrator.  It was submitted thatRule 14ofSchedule 5anticipates a situation where a personal representative is already appointed as perRule 2.

From the submissions herein the issues for determination are as follows:-

Under what conditions may a person be forced to take up letters of administration?

Whether the applicant has satisfied the said conditions.

UnderArticle 14 of theFifth Schedulefor the court to make one a party the suit must be pending and the letters of administration can only be granted to a nominee of a party in the suit.  There is no evidence submitted by the applicant that the suit in which the substitution is not intended is still pending and which are the respondent's nominees of any party to the said suit.  It therefore follows that the applicant has not satisfied the conditions set upon which this court may exercise the powers underRule 14of theFifth Schedule.  Where a suit has been concluded and judgment issued and decree drawn that to my mind is not a pending suit where this section is applicable.

As submitted by the respondents, I find that the applicant has also not provided the court with evidence of the unwillingness of the respondents to take up grant of letters of administration and further since the respondents are not nominees of any party to the suit as per the provisions of Rule 14 of the Fifth Schedule, I find that the application herein lacks merit and is therefore dismissed with costs to the respondents.

Signed and dated                   day of                     2014

Gichanga Ngumi   v   Felishina Wamuyu  &

J. WAKIAGA

JUDGE

Delivered by Justice J. Ngaah on behalf of Justice J. Wakiaga

this      25th         day of   November      2014.

J. NGAAH

JUDGE.

10.  In the presence of:-

----------------------------------- for Petitioner

---------------------------------- for Respondent