In Re The Estate Of Adanga Agisu (Deceased) [2014] KEHC 7268 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

SUCCESSION CAUSE NO. 1741 OF 2012

IN THE ESTATE OF ADANGA AGISU      (DECEASED)

RULING

1.  The application dated 15th November 2012 seeks three principal orders – the restraining of the respondents from intermeddling with the estate, the removal of the 2nd petitioner as administrator of the estate and the making of reasonable provision for Charlene Afodzoh Agisu.

2. I must state from the outset that the said application is not well thought out; it is misconceived and unmerited.

3.  In the first place, the applicant seeks orders to restrain intermeddling by the respondents.  The said applicant is not the holder of a grant of representation with respect to the estate of Adanga Agisu, deceased.  The estate of the deceased does not vest in him in terms of Section 79 of the Law of Succession Act.  He therefore does have legal capacity to obtain restraining orders with respect to the estate.

4.  He seeks removal of the 2nd petitioner as administrator and her substitution with himself.  I have carefully perused through the court record. I have noted that although the petition herein was gazetted on 19th October 2012, no one has yet been appointed as administrator of the estate and a grant of letters of administration intestate has not been made to anyone.  Consequently, no administrator of the estate exists and the issue therefore of the removal and substitution of such administrator should not arise.

5.  He asks for reasonable provision to be made to Charlene Afodzoh Agisu as a dependent.  Such application is made under Section 26 of the Law of Succession Act, yet the application before me is not premised on the provision.  I also note that the affidavit in support does not have the material appropriate for the purpose of the exercise of the discretion under Section 26 of the Act.  The circumstances to be taken into account in the making of the order are set out in Section 28 of the Act.  The affidavit in support has not disclosed material that would bring out the circumstances set out in Section 28 of the Act.

6.  Moreover, reasonable provision is sought where a person who is entitled to a share in the estate is disinherited or inadequately provided for.  In intestacy this is apparent where the person has not been listed in the petition as a survivor of the deceased or is not among the heirs listed in the confirmation application.  In this case Charlene Afodzoh is listed as a survivor of the deceased, and we are at the very early stages of the matter and the question of confirmation has not yet arisen.

7.  Instead of filing this ill-conceived application, the applicant ought to have objected to the making of the grant to the petitioner once the cause was gazetted on 19th October 2012.

8.  I am disposed to make the following orders:-

That the application dated 15th November 2012 is hereby dismissed with costs to the respondents.

That as there is no pending objection, I direct that a grant of letters of administration intestate be made to Lilian Khavugwi Ganira and Wilfridah Vulegani Ganira in terms of their petition dated 27th June 2012.

DATED, SIGNED and DELIVERED at NAIROBI this31st DAY OF January, 2014.

W. MUSYOKA

JUDGE