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Case Action: Ruling


Republic V Samuel Omulanda [2016] eKLR

Case Number: Criminal Case 2 of 2010 Date Delivered: 08 Feb 2016

Judge: Margaret Njoki Mwangi

Court: High Court at Kakamega

Parties: Republic v Samuel Omulanda

Citation: Republic V Samuel Omulanda [2016] eKLR

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Jane Wanja Mueti & Another V Dafroza Silvester Duttu [2016] eKLR

Case Number: Succession Cause 545 of 2014 Date Delivered: 08 Feb 2016

Judge: Margaret Waringa Muigai

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Jane Wanja Mueti & Muturi Joseph v Dafroza Silvester Duttu

Citation: Jane Wanja Mueti & Another V Dafroza Silvester Duttu [2016] eKLR

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James Munene Ndumbi V Sospeter Murimi Karitu [2016] eKLR

Case Number: Environment 74 of 2013 Date Delivered: 08 Feb 2016

Judge: Lucy Waithaka

Court: Environment and Land Court at Nyeri

Parties: James Munene Ndumbi v Sospeter Murimi Karitu

Citation: James Munene Ndumbi V Sospeter Murimi Karitu [2016] eKLR

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Peterson Gitari Njagi V Republic [2016] eKLR

Case Number: Criminal Appeal 4 of 2016 Date Delivered: 08 Feb 2016

Judge: Bwonwong'a Justus Momanyi

Court: High Court at Embu

Parties: Peterson Gitari Njagi v Republic

Citation: Peterson Gitari Njagi V Republic [2016] eKLR

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George Gitau Kamau V Samuel Ruiru Kamau [2016] eKLR

Case Number: Succession Cause 663 of 2011 Date Delivered: 08 Feb 2016

Judge: Margaret Waringa Muigai

Court: High Court at Nairobi (Milimani Law Courts)

Parties: George Gitau Kamau v Samuel Ruiru Kamau

Citation: George Gitau Kamau V Samuel Ruiru Kamau [2016] eKLR

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Munteleu Mardadi Sarinke V Lamo Ole Mardadi & Others [2016] eKLR

Case Number: Succession Cause 75 of 2015 Date Delivered: 08 Feb 2016

Judge: Reuben Nyambati Nyakundi

Court: High Court at Kajiado

Parties: Munteleu Mardadi Sarinke v Lamo Ole Mardadi & others

Citation: Munteleu Mardadi Sarinke V Lamo Ole Mardadi & Others [2016] eKLR

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James Kimutai Alias Barthwon V Republic [2016] eKLR

Case Number: Criminal Case 42 of 2015 Date Delivered: 08 Feb 2016

Judge: Cecilia Wathaiya Githua

Court: High Court at Eldoret

Parties: James Kimutai Alias Barthwon v Republic

Citation: James Kimutai Alias Barthwon V Republic [2016] eKLR

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K.M.M V J. I. L [2016] eKLR

Case Number: Civil Appeal Cause 99 of 2015 Date Delivered: 08 Feb 2016

Judge: Margaret Waringa Muigai

Court: High Court at Nairobi (Milimani Law Courts)

Parties: K.M.M v J. I. L

Citation: K.M.M V J. I. L [2016] eKLR

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Wilfred Koinange Gathiomi V Joyce Wambui Mutura & Another [2016] eKLR

Case Number: Succession Cause 2967 of 2012 Date Delivered: 08 Feb 2016

Judge: Margaret Waringa Muigai

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Wilfred Koinange Gathiomi v Joyce Wambui Mutura & Florence Njeri Njoroge Kamau

Citation: Wilfred Koinange Gathiomi V Joyce Wambui Mutura & Another [2016] eKLR

DNA Testing crucial in determining Beneficiaries and/or Dependents in Succession Matters

Wilfred Koinange Gathiomi v Joyce Wambui Mutura & another

Succession Cause 2967 of 2012

High Court of Kenya at Nairobi

Family Division

MW Muigai J

February 8, 2016

Reported by Phoebe Ida Ayaya

 

Brief facts

The Applicant took issue with the specific order of the court that he and the Respondent were to submit to DNA testing in order to determine paternity and that the tests were to be conducted at Government Laboratories within 60 days as at the date of orders. The Applicant objected to DNA testing and sought stay of execution of the said order. The Applicant was the one who raised the issue of paternity against 1st Respondent. He did not prove. The 1st Respondent claimed in spite of the date contained in her ID card she was born in 1950. She did not prove the same. The Respondents position was that the Court gave orders that the Applicant failed to comply with and had come back to the same Court seeking further orders.

 

Issues:

 

i.                     Whether the Applicant and the Respondent could submit to DNA testing to resolve the paternity and /or sibling issue

ii.                   Whether DNA testing was intrusive and interfered with the right to privacy of an individual but was an exception in unique circumstances such as resolving paternity issues among siblings

iii.                  Whether in conducting the DNA testing the Applicant would be inconvenienced in the process

 

Family law – DNA testing –principal consideration in determining paternity tests- application against the Respondent to submit to DNA testing to determine paternity – whether the Applicant and the Respondent could submit to DNA testing to resolve the paternity and/ or sibling issue

Constitutional Law- fundamental rights and freedoms - right to privacy  -whether the court can set aside an order directing the parties to undergo a DNA test in order to determine and resolve the paternity and/or sibling issue- whether DNA testing was intrusive and interfered with the right to privacy of an individual but was an exception in unique circumstances such as resolving paternity issues among siblings - whether in conducting the DNA testing the Applicant would be inconvenienced in the process- Constitution of Kenya (2010) articles 23,33

Held

  1. Before Kenya’s independence in 1963 there was no formal registration processes, as were known today. It would have been a tall order to obtain a Birth Certificate if one was born in 1950. Therefore, since under the law sections 107 108 & 109 of the Evidence Act mandated that he who alleged must prove; the only option was to result to scientific method for conclusive results. Both parties were to undergo a sibling DNA testing to confirm if they were of the same father or not.
  2. The DNA testing was not going to cause substantial loss to the Applicant, except inconvenience that was less important to finding a lasting solution to the issue he raised in the first place. The 1st Respondent offered to foot the DNA testing bills so the Applicant would face no hardship. DNA result was crucial in determining the beneficiaries and/or dependents of the deceased’s estate.
  3. DNA testing was intrusive and interfered with the right to privacy but under the circumstances there was a basis for DNA testing. The paternity question was central to the dispute at hand, whether the 1st Respondent was one of the beneficiaries of the deceased’s estate. It was the only way to resolve the paternity issue that the Applicant raised and was now reluctant to pursue to its logical conclusion. The DNA testing would not prejudice the Applicant’s case pending appeal, as he had not advanced any proposal on how to resolve the paternity issue; it was his word against hers.
  4. Between the Applicant’s inconvenience and both parties’ interest to conclusively determine whether they were siblings or not for purposes of distribution of the deceased’s estate; the pursuit for truth trumped over inconvenience. Whereas it was not possible to conduct parental testing as in the instant case as the deceased died in 1950, then sibling DNA testing was possible and logical.

Application pending appeal dismissed and each parties to bear own costs

 

Cases

East Africa

  1. Altarwalla, Jumilla & another v Hussein Abdulaziz & another Civil Case 231 of 2000 – (Mentioned)
  2. EMM v IGM & another Civil Appeal 114 of 2012 – (Explained)
  3. Joseph Gachie t/a Joska Metal Works v Simon Ndeti Muema Civil Appeal 372 of 2012 – (Mentioned)
  4. Machira t/a Machira & Co Advocates v East African Standard (No 2) [2002] 2 KLR 63 – (Explained)
  5. PKM v JW Petition 138 of 2012 – (Followed)
  6. RMK v AKG & another Petition No 18 of 2013 – (Explained)
  7. SWM v GMK Petition 235 of 2011– (Explained)

Statutes

East Africa

  1. Civil Procedure Act (cap 21 Sub Leg) order 42 rule 6 - (Interpreted)
  2. Evidence Act (cap 80) sections 107,108,109 - (Interpreted)

Advocates: None Mentioned)

 

 

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Republic V Chief Executive Officer, Retirement Benefits Authority & Another Ex-Parte Robert Azariah [2016] eKLR

Case Number: Miscellaneous Application 214 of 2015 Date Delivered: 08 Feb 2016

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Chief Executive Officer, Retirement Benefits Authority & Corporate & Pension Trust Services Limited Ex-Parte Robert Azariah

Citation: Republic V Chief Executive Officer, Retirement Benefits Authority & Another Ex-Parte Robert Azariah [2016] eKLR

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In Re P A & B A Minors [2016] eKLR

Case Number: Miscellenous 138 of 2015 Date Delivered: 08 Feb 2016

Judge: Margaret Waringa Muigai

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re P A & B A Minors

Citation: In Re P A & B A Minors [2016] eKLR

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Cecilia Karuru Ngayu V Barclays Bank Of Kenya & Another [2016] eKLR

Case Number: Civil Case 17 of 2014 Date Delivered: 08 Feb 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Cecilia Karuru Ngayu v Barclays Bank of Kenya &Credit; Reference Bureau Africa Ltd

Citation: Cecilia Karuru Ngayu V Barclays Bank Of Kenya & Another [2016] eKLR

Whether costs could be awarded where a suit was yet to be determined or formally withdrawn

 

Cecilia Karura Ngayu v Barclays Bank of Kenya & another

Civil Case No 17 of 2014

High Court at Nyeri

John M Mativo, J

February 8, 2016

 

Reported by Beryl A Ikamari

 

Brief facts

The Court was asked to make a determination on the issue of costs between the Plaintiff and the 2nd Defendant. The suit against the 2nd Defendant had not been withdrawn, compromised or settled and in fact, the suit against both Defendants was still pending.

The suit related to the seizure and sale by private treaty of the Plaintiff's motor vehicle. The Plaintiff's claim was that the seizure and sale was not procedural, was unlawful and malicious. The Plaintiff also wanted the Court to order the Defendant to delist the Plaintiff as delinquent within the database of the Credit Reference Bureau Africa Limited. The Credit Reference Bureau Africa Limited was the 2nd Defendant.

The 2nd Defendant had entered appearance and filed a defence. Additionally, there was a pending application by the 2nd Defendant seeking to be struck off from the proceedings. The 1st Defendant also filed a Defence and counterclaim. Furthermore, there was an attempt to confirm a consent entered into between the Plaintiff and the 1st Defendant but the 2nd Defendant had stated that it was not a party to the proposed consent and asked for time to consider it. A further application was made for the Court to determine the issue of costs between the Plaintiff and the 2nd Defendant.

 

Issue

  1. Whether costs could be awarded in a situation where a suit was yet to be determined or formally withdrawn. 

Civil Practice & Procedure-costs-the requirement that costs were to follow the event-whether an intention to compromise via consent a suit against one Defendant but not a second Defendant would constitute an event for purposes of costs-effect of making an application for a Court determination on costs where a suit had not been concluded and the implications of such an application-Civil Procedure Act (Cap 21), section 27.

 

Civil Procedure Act (Cap 21), section 27;

Costs

27. Costs

(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:

Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.

(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.

 

Held

  1. Generally, it was within the Court's discretion to determine whether costs were payable by one party to another, the amount of those costs and when they were to be paid. Costs must follow the event. An issue would arise if costs were sought without a suit being formally determined. Costs must follow the event unless the Court had good reasons to order otherwise.
  2. While it was within the discretion of the Court to determine the issue of costs, the discretion was to be exercised on grounds upon which a reasonable man would draw certain conclusions. The general rule that it was the successful party that was to be awarded costs was not to be departed from without having good grounds for doing so.
  3. The general rule in section 27 of the Civil Procedure Act was that costs would follow the event unless there were good reasons. Section 27, on the issue of costs did not make a distinction between determinations made by consent or determinations made by the Court or through withdrawals.
  4. In determining the issue of costs, the Court was to look at inter alia;

a)     The conduct of the parties;

b)     The subject of the litigation;

c)     The circumstances which led to the institution of the proceedings;

d)     The events which eventually led to their termination;

e)     The stage at which the proceedings were terminated;

f)       The manner in which they were terminated;

g)     The relationship between the parties and,

h)     The need to promote reconciliation amongst the disputing parties pursuant to article 159 (2) (c) of the Constitution

 

  1. The circumstances were that the Plaintiff and the 1st Defendant agreed to compromise without involving the 2nd Defendant but the Plaintiff had not expressed willingness to withdraw the suit against the 2nd Defendant. Additionally, the Plaintiff had not objected to the 2nd Defendant's application to be struck off from the proceedings. The Court would not inquire into why the consent was entered or make an adverse determination against the Plaintiff due to the consent. However, there was an issue as to whether or not the 2nd Defendant was entitled to costs.
  2. Costs follow the event and steps taken by parties to resolve an issue amounted to an event under section 27 of the Civil Procedure Act.  The 2nd Defendant's actions indicated that they were not guilty of misconduct. It did not matter that the suit was withdrawn or compromised or intended to be compromised, what mattered was whether the 2nd Defendants were entitled to costs for the trouble taken by them to defend the proceedings.
  3. The Plaintiff's suit against the 2nd Defendant had not been withdrawn formally and it would be prudent for them to conclude the proceedings before asking the Court to determine the issue of costs. However, given that the Plaintiff and the 2nd Defendant impliedly or expressly confirmed that there were no other issues pending, it was necessary to make orders terminating the case in order to create ground for the order on costs. The logical conclusion would be to make an order striking off the 2nd Defendant from the proceedings with costs awarded to the 2nd Defendant.

Application to strike off the 2nd Defendant from the proceedings allowed and costs to be paid to the 2nd Defendant as agreed or taxed by the Taxing Master.

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Republic V Arumoi Lemironi [2016] eKLR

Case Number: HCRC 3 of 2015 Date Delivered: 08 Feb 2016

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: Republic v Arumoi Lemironi

Citation: Republic V Arumoi Lemironi [2016] eKLR

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L O V O J [2016] eKLR

Case Number: Originating Suit 9 of 2015 (Formerly Civil Suit 66 of 2014) Date Delivered: 08 Feb 2016

Judge: Thande Mugure

Court: High Court at Mombasa

Parties: L O (alias A O) v O J (alias S J M)

Citation: L O V O J [2016] eKLR

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In Re Estate Of Salim Islam Saadan(Deceased) [2016] eKLR

Case Number: Succession Cause 367 of 2006 Date Delivered: 08 Feb 2016

Judge: Thande Mugure

Court: High Court at Mombasa

Parties: In re Estate of Salim Islam Saadan(Deceased)

Citation: In Re Estate Of Salim Islam Saadan(Deceased) [2016] eKLR

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Benjamin Okiring Okibor V Standard Chartered Bank Limited & Another [2016] eKLR

Case Number: Civil Suit 126 of 2006 Date Delivered: 08 Feb 2016

Judge: Fred Andago Ochieng

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Benjamin Okiring Okibor v Standard Chartered Bank Limited & Moses Okumu Owiti

Citation: Benjamin Okiring Okibor V Standard Chartered Bank Limited & Another [2016] eKLR

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James Maina Mbugua V John Karenge Mbugua [2016] eKLR

Case Number: Succession Cause 3065 of 2001 Date Delivered: 08 Feb 2016

Judge: Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: James Maina Mbugua v John Karenge Mbugua

Citation: James Maina Mbugua V John Karenge Mbugua [2016] eKLR

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John Njuguna Kimunya V Tersiah Wachuka Kimunya & Another [2016] eKLR

Case Number: Civil Suit 92 of 2010 Date Delivered: 05 Feb 2016

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: John Njuguna Kimunya v Tersiah Wachuka Kimunya & Geoffrey Situma Wanyonyi

Citation: John Njuguna Kimunya V Tersiah Wachuka Kimunya & Another [2016] eKLR

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Kenya Plantation & Agricultural Workers Union V Wilhan (K) Ltd & Another [2016] eKLR

Case Number: Cause 313 of 2014 Date Delivered: 05 Feb 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nakuru

Parties: Kenya Plantation & Agricultural Workers Union v Wilhan (K) Ltd & Rift Valley Vegetables

Citation: Kenya Plantation & Agricultural Workers Union V Wilhan (K) Ltd & Another [2016] eKLR

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In Re Estate Of Mbugua Ng’ang’a (Deceased) [2016] eKLR

Case Number: Succession Cause 683 of 2011 Date Delivered: 05 Feb 2016

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Estate of Mbugua Ng’ang’a (Deceased)

Citation: In Re Estate Of Mbugua Ng’ang’a (Deceased) [2016] eKLR

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In Re Estate Of Thibu Gichieya [2016] eKLR

Case Number: Succession Cause 2814 of 2003 Date Delivered: 05 Feb 2016

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Estate of Thibu Gichieya

Citation: In Re Estate Of Thibu Gichieya [2016] eKLR

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In Re Estate Of James Mbai Gathuri (Deceased) [2016] eKLR

Case Number: Succession Cause 107 of 1991 Date Delivered: 05 Feb 2016

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Estate of James Mbai Gathuri (Deceased)

Citation: In Re Estate Of James Mbai Gathuri (Deceased) [2016] eKLR

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In Re Estate Of Kamandura Ali (Deceased) [2016] eKLR

Case Number: Succession Cause 1399 of 2003 Date Delivered: 05 Feb 2016

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Estate of Kamandura Ali (Deceased)

Citation: In Re Estate Of Kamandura Ali (Deceased) [2016] eKLR

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Simon Thuku Kanui And Ann Fidelis Ng’endo Thuku ( Suing In Their Capacity As Administrators Of The Estate Of Lilian W Thuku ( Deceased V Lilian Wathithi Muigai [2016] eKLR

Case Number: Environment & Land Case Civil Suit 1371 of 2013 Date Delivered: 05 Feb 2016

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Simon Thuku Kanui and Ann Fidelis Ng’endo Thuku ( Suing in their Capacity as administrators of the Estate of Lilian W Thuku ( Deceased v Lilian Wathithi Muigai

Citation: Simon Thuku Kanui And Ann Fidelis Ng’endo Thuku ( Suing In Their Capacity As Administrators Of The Estate Of Lilian W Thuku ( Deceased V Lilian Wathithi Muigai [2016] eKLR

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In Re Estate Of The Late Evans Kamau Gatiba [2016] eKLR

Case Number: Succession Cause 134 of 1984 Date Delivered: 05 Feb 2016

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Estate of the Late Evans Kamau Gatiba

Citation: In Re Estate Of The Late Evans Kamau Gatiba [2016] eKLR

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Alfred N. Mutua V Ethics And Anti-Corruption Commission & 3 Others [2016] eKLR

Case Number: Petition 310 of 2014 Date Delivered: 05 Feb 2016

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Alfred N. Mutua v Ethics and Anti-Corruption Commission, Director of Public Prosecutions (DPP), Inspector General of the National Police Service & Attorney General

Citation: Alfred N. Mutua V Ethics And Anti-Corruption Commission & 3 Others [2016] eKLR

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In Re Estate Of Roman Kariuki Kiru [2016] eKLR

Case Number: Succession Cause 979 of 1992 Date Delivered: 05 Feb 2016

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Estate of Roman Kariuki Kiru

Citation: In Re Estate Of Roman Kariuki Kiru [2016] eKLR

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Okiya Omtatah Okoiti & Another V Uhuru Muigai Kenyatta & 7 Others [2016] eKLR

Case Number: Petition 531 of 2015 Date Delivered: 05 Feb 2016

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Okiya Omtatah Okoiti & Nyakina Wycliffe Gisebe v Uhuru Muigai Kenyatta, William Samoei Ruto, Treasury Cabinent Secretary Henry Rotich, Treasury Principal Secretary Kamau Thugge, Attorney General, Controller of Budget Agnes Odhiambo, CBK Governor Patrick Ngugi Njoroge & Auditor General Edward Ouko

Citation: Okiya Omtatah Okoiti & Another V Uhuru Muigai Kenyatta & 7 Others [2016] eKLR

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K W S V D A O [2016] eKLR

Case Number: Miscellaneous Civil Application 65 of 2014 (Os) Date Delivered: 05 Feb 2016

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: K W S v D A O

Citation: K W S V D A O [2016] eKLR

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In Re Estate Of Bartholomew Warui (Deceased) [2016] eKLR

Case Number: Succession Cause 2196 of 2008 Date Delivered: 05 Feb 2016

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Estate of Bartholomew Warui (Deceased)

Citation: In Re Estate Of Bartholomew Warui (Deceased) [2016] eKLR

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Chairman Board Of Governors Ng’iya Girls High School V Meshack Ochieng’ T/a Mecko Enterprises & 4 Others [2016] eKLR

Case Number: Civil Appeal (Application) 54 of 2015 Date Delivered: 05 Feb 2016

Judge: Alnashir Ramazanali Magan Visram, Festus Azangalala, Philomena Mbete Mwilu

Court: Court of Appeal at Nairobi

Parties: Chairman Board of Governors Ng’iya Girls High School v Meshack Ochieng’ t/a Mecko Enterprises, Principal Secretary Ministry of Education, Attorney General, Secretary Coordinator Economic Stimulus Programme Republic Works & National Treasury

Citation: Chairman Board Of Governors Ng’iya Girls High School V Meshack Ochieng’ T/a Mecko Enterprises & 4 Others [2016] eKLR

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Meshack Nyamiaka Ong’uti V Kenyatta National Hospital & 2 Others [2016] eKLR

Case Number: Cause 221 of 2014 Date Delivered: 05 Feb 2016

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Meshack Nyamiaka Ong’uti v Kenyatta National Hospital , Permanent Secretary Ministry of Health & Attorney General

Citation: Meshack Nyamiaka Ong’uti V Kenyatta National Hospital & 2 Others [2016] eKLR

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Mutuma Mugambi V Kenya Methodist University [2016] eKLR

Case Number: Cause 221 of 2010 Date Delivered: 05 Feb 2016

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Mutuma Mugambi v Kenya Methodist University

Citation: Mutuma Mugambi V Kenya Methodist University [2016] eKLR

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Benson Wakaba Mwangi T/a St. Tito High School V Bank Of Africa Kenya Limited [2016] eKLR

Case Number: Civil Case 520 of 2015 Date Delivered: 05 Feb 2016

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Benson Wakaba Mwangi t/a St. Tito High School v Bank of Africa Kenya Limited

Citation: Benson Wakaba Mwangi T/a St. Tito High School V Bank Of Africa Kenya Limited [2016] eKLR

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In Re Estate George Ragui Karanja (Deceased) [2016] eKLR

Case Number: Succession Cause 1506 of 1997 Date Delivered: 05 Feb 2016

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Estate George Ragui Karanja (Deceased)

Citation: In Re Estate George Ragui Karanja (Deceased) [2016] eKLR

Procedure and criteria for appointing new administrators where the old ones were all dead

 

In The Matter of the Estate of George Ragui Karanja (Deceased)

Succession Cause No. 1506 Of 1997

High Court of Kenya at Milimani

                                   W Musyoka

                               February 5, 2016.

Reported by Njeri Githang’a & Winnie Matiri

 

Brief Facts

An application dated May 11, 2012 was filed by Lincoln Kimwaki Ragui and George Ragui Karanja who were the son and grandson of the deceased respectively, seeking for the substitution of two of the administrators of the estate, Grace Waithera Ragui and Edward Karanja Ragui who had also died on June 26, 2008 and January 15, 2012, respectively. It also sought to have the certificate of confirmation of grant rectified, so as to change the terms of the distribution.

 

On May 30, 2012, an affidavit of protest was sworn by Koigi wa Wamwere, who was neither a child nor beneficiary of the deceased, and therefore the applicants averred that he was not viable to be an administrator. He contended that as an executor of the will of Grace Waithira Ragui (deceased administrator) and an interested party in the estate of the deceased herein, and with the consent of some eight (8) beneficiaries, only he was qualified to substitute her as administrator of the estate of her dead husband. He further averred that that the two applicants were trouble makers and did not get along with the dead administrator and with the other beneficiaries hence her decision to make a will.

 

An application dated October, 22 2014, was filed seeking the appointment of the executor, Koigi wa Wamwere, Nelly Wanjiku Kuria and Jane Nduta Koigi as administrators of the estate of the deceased as consented by other beneficiaries.

 

The Respondents responded through a joint affidavit and stated that the filed application was similar to theirs dated May 11, 2012, for they both sought similar orders. It was not in dispute that the administrators died before administration of the estate had been completed and therefore there was need for them to be substituted by persons who would then wind up the estate.

 

 

                                                                                                                                                     Issues

  1. whether an executor of a will of person B(administrator in estate A) whose estate (of person B) was a beneficiary in estate A, could seek appointment as an administrator of estate A in his/her capacity as an executor a will of person B.
  2. What was the procedure and criteria for appointing new administrators where the old ones were all dead?
  3. What was the order of preference in the appointment of administrators?
  4. Whether redistribution of an estate could be revisited through a rectification application.
  5. Whether a court could revoke a grant of representation.

 

Law of Succession-appointment of administrators-order of preference for appointment of administrators-  whether an executor of a will of a person whose estate was a beneficiary in the estate of the deceased, could seek appointment as an administrator in that capacity- Whether a grandson of a deceased person was qualified to be an administrator- Law of Succession Act, section 66

 

 

Held

  1. The persons making the application for the redistribution of the estate were not themselves the administrators of the estate of the deceased. That issue could be addressed only after new administrators had been put in place.  In any event, distribution of an estate could be revisited through a rectification application, for such applications were ideal for correction of errors and omissions going by the language of section 74 of the Law of Succession Act. Redistribution amounted to a revision of the orders made by the Court at the confirmation of grant. Such orders should be disturbed only through appeal or review or by the consent of the parties.
  2. The Law of Succession Act did not expressly provide for substitution of personal representatives who died in office, particularly in cases where the estate was left without one. Section 81 of the Act, provided for vesting of the powers and duties of personal representatives in the survivor or survivors of a dead personal representative.
  3. Upon the death of one or more of several executors or administrators to whom a grant of representation had been made, all the powers and duties of the executor or administrators would become vested in the survivors or survivor of them
  4. Where there had been a grant of letters of administration which involved any continuing trust a sole surviving administrator who was not a trust corporation would have no power to do any act or thing in respect of such trust until the Court had made a further grant to one or more persons jointly with him.
  5. Section 81 of the Act would be of no application once all the holders died. The grant became useless and inoperative, and liable to revocation under section 76(e) of the Law of Succession Act, to pave way for appointment of new administrators. The appointment of fresh administrators to take the place of the previous ones following their death was subject to the provisions of sections 51 through to section 66 of the Act.
  6. In the instant case, all the administrators of the estate of the deceased had died. The circumstances arising therefrom could not be addressed through section 81 of the Law of Succession Act. The grant made to the dead administrators had to be revoked to pave way for appointment of new administrators. There was no application premised on section 76(e), for revocation of the grant herein on account of its having become useless and inoperative. However, section 76 gave the Court discretion to revoke any grant of representation on its own motion. That was a classic case where the Court exercised such discretion.
  7. Section 66 of the Law of Succession Act gave a guideline on determining who should be appointed administrators to replace the dead ones.  The order of preference set out in section 66 of the Law of Succession Act was not binding to the Court, it was discretionary. Section 66 referred to it as ‘a general guide.’ The Court could appoint administrators without following the order of preference. Priority was given to surviving spouses, followed by the other beneficiaries entitled in intestacy as set out in Part V of the Act, then the Public Trustee and creditors. The persons entitled in intestacy according to Part V, in their order of preference, include children (and grandchildren where their own parents were dead), parents, siblings, half-siblings and  other relatives who were in the nearest degree of consanguinity up to and including the sixth degree.
  8. The surviving spouse of the deceased in the instant cause was dead and therefore the next in line of appointment as administrators were the children. The appointment of grandchildren was qualified, in the sense that they rank in priority only where their own parents were dead. Nelly Wanjiku Kuria, Jane Nduta Koigi and Lincoln Kimwaki Ragui, being surviving children of the deceased qualified for appointment. George Ragui Karanja qualified too, but since he was a grandson he ranked lower in priority in comparison with the other three. However, the fact that his father, a child of the deceased, was dead placed him at par with the other three.
  9. The executor of the will of Grace Waithera Ragui did not fall in any of the categories set out in section 66 and Part V of the Act.  He sought appointment in his capacity as the executor of the will of a person whose estate was a beneficiary in the estate of the deceased. He could in a sense be put in the same league with creditors and therefore he ranked bottom in priority.
  10. No documentary evidence of receiving instructions from the testatrix to take her place as the administrator of the estate of her husband had been provided, nor had the circumstances of the giving of the instructions been laid coherently in the affidavits before the Court. The mere fact that he had been named executor of the will of the wife of the deceased, did not give him prior right of appointment over anybody else. There was no law that would confer power on a wife during lifetime to give instructions on who should become administrator of the estate of her dead husband. It was one thing for a person to be qualified for appointment as administrator of an estate, and totally another for them to merit or be suitable for appointment
  11. Surviving spouses and children had priority in administration, and other relatives as set out in section 39 of the Act should only come in where no spouse or children survived the deceased, or the surviving spouse or children were unsuitable; it would appear on the face of it that Koigi wa Wamwere should be locked out of the administration on the ground of unsuitability. It would be undesirable to appoint as administrator a person of lesser priority over the children where the children had not been found to be unsuitable.
  12. Koigi wa Wamwere was executor of the will of one of the beneficiaries of the estate, Grace Waithera Ragui. The estate of the latter was a key stakeholder in the estate of the deceased for Grace Waithera Ragui was the surviving widow of the deceased before she herself died, and certain assets devolved upon her estate according to the certificate of confirmation of grant on record. Furthermore, Koigi wa Wamwere was proposed by the majority of the survivors of the deceased as a substitute to the dead administrators. By so endorsing him, the said survivors, who had prior right to administration, had waived their rights or entitlement to administration and handed it over to Koigi wa Wamwere. That clothed him with suitability.

 

Application partly allowed;

  1. grant of letters of administration intestate made on  September 23, 1997 to Edward Karanja Ragui and Grace Waithera Ragui revoked for having become useless and inoperative following the deaths of the two administrators;
  2. Koigi wa Wamwere, Lincoln Kimwaki Ragui, Nelly Wanjiku Kuria and George Ragui Karanja appointed as administrators of the estate in the place of the said dead administrators;
  3.  grant of letters of administration intestate to be issued to them accordingly;
  4. Prayers in both applications for the redistribution of the estate rejected, instead the new administrators to apply, if need be, for a review of the confirmation orders on record to facilitate redistribution, which application should have the consent of all the beneficiaries;
  5. Any administrator or administrators and beneficiary or beneficiaries opposed to the application referred to in (d) above should present their respective cases through replying affidavit or affidavits to facilitate a final disposal of the issue at a proper hearing; and
  6.  Each party to bear their own costs.

 

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