In Re GICHIA KABITI [2004] KEHC 2448 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA ATNAIROBI

SUCCESSION CASE NO. 2559 OF 2002

IN THE MATTER OF THE ESTATE OF GICHIA KABITI (DECEASED)

(Ruling on Preliminary Objection dated 21st October 2003)

RULING

Daniel Njuhiga Kinuthia filed the summons seeking the revocation or annulment of the grant of letters of administration issued to Peter Ngigi Gichia and Patrick Kabiti Gichia. The grant was confirmed on 10th April 2003. The summons is supported by his affidavit sworn on 4th October 2003.

The gist of the matters deposed in the affidavit can be summarized as follows:

That the applicant’s father was a beneficiary of the estate of the deceased person by virtue of being a purchaser of 0. 93 acres of parcel No. CHANIA/KAIRI/228.

That the sale took place in 1963 and his father has been in possession of the land and has developed it with coffee trees. That the administrators have subdivided the deceased ‘s land thereby leaving out the applicant’s father. The applicant therefore contends that he is entitled to be appointed as an administrator alongside the deceased sons.

The objectors filed a notice of preliminary objection dated 21st October and raised the following issues:

The applicant has no local standing in this matter his father is still alive and therefore he is a total stranger. Secondly and most importantly the applicant’s claim is that of a creditor who purchased land and if there is a bleach of a contract entered to with the deceased the applicants remedy lies in filling an application under order 36 of the Civil Procedure Rules, which rules are clearly adopted under the Law of Succession but not in filling an objection.

I have carefully considered the application and the submissions by both counsel for both parties, and also the provisions of the law. The persons who have priority in law to apply for grant of Representation are provided for under Section 66 of Cap 160 and so is the order of preference.

It is the spouse or spouses, with or without association with other beneficiaries. Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests. The Public Trustee, Creditors.

In view of the above provision the applicant has no priority in being granted the Letters of Administration. The applicants did not attach any documents to show the sale agreement or even the document appointing him as the Attorney of his father, in this respect I find his application incompetent.

I also agree with counsel for the administrators that his remedy should be found elsewhere but not in the current application for the revocation of the grant.

Accordingly the application is struck out as it lacks merit, with costs to the respondents.

Ruling read and signed on 23rd April, 2004.

MARTHA KOOME

JUDGE