John Oscar Katua, John Kyende Katua & Gilbert Makau Katua v Beatrice Njeri Irungu & Zakayo Kimani Maina [2014] KEHC 5949 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

SUCCESSION CAUSE NO. 438 OF 2011

IN THE MATTER OF THE ESTATE OF THE LATE MARGARET MARY KATUA  (DECEASED)

1. JOHN OSCAR KATUA

2. JOHN KYENDE KATUA

3. GILBERT MAKAU KATUA.............PETITIONERS/RESPONDENTS

VERSUS

1. BEATRICE NJERI IRUNGU

2. ZAKAYO KIMANI MAINA...................OBJECTORS/APPLICANTS

R U L I N G

1. The Notice of Objection was filed herein on 8/8/2012 under sections 68 (1) and 72 (a) of the Law of Succession Act Cap 160 Laws of Kenya, Rule 44 of Probate and Administration Rules by Beatrice Njeri Irungu & Zakayo Kimani Maina.

2. The Applicants’ claim according to their affidavit in support is that they had purchased land parcels No. LR 13418/133 and LR No. 13418/134 from the deceased prior to her death in the year 2003.  The Applicants’ complaint is that they were not included in the Probate & Administration form 5.

3. No papers were filed in opposition to the application and there was no attendance in court by the administrators of the estate of the deceased although service was duly effected.

4. Under section 67 of the Law of Succession Act Cap 160 Laws of Kenya (Act) when an application for a grant of representation is made, notice of the same must be published for a period of not less than 30 days.  The only exception made by this provision is for applications for limited grants for collection and preservation of assets.

5. Section 68 of the Act provides for the making of any objections to an application for a grant of representation.

6. The grant of letters of administration was made herein on 7/11/2011.  The Objector’s are therefore trying to close the door after the horse has already bolted.

7. No application for the confirmation of the grant has been made by the administrators as provided for under section 71 of the Act.  Section 72 of the Actprovides for making protests to the confirmation of grant.  The reliance by the Applicants on section 72 of the Act is therefore a premature bid.

8. Section 76 of the Act provides for the revocation or annulment of a grant when the proceedings to obtain the grant were defective in substance; the grant was obtained fraudulently by the making of false statements or by concealment of material facts to the court; the grant was obtained by the untrue allegations of fact or the administrators have failed to apply for the confirmation of the grant within the period provided or failed to proceed diligently with the administration of the estate.

9. If the Applicants’ intention herein was to apply for the revocation or annulment of the grant under section 76 of the Act, it was mandatory to comply with the provisions of rule 44 of the Probate and Administration Rules.

10. The application at hand is an omnibus that seems to have combined the objection to the making of a grant with an application for revocation or annulment of grant.  Consequently, I find the application incompetent and I strike out the same.  Costs in cause.

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B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 6thday of March 2014.

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B. THURANIRA JADEN

JUDGE