Before me is Summons dated 21/10/2021 seeking the following orders: -
The application is based on the grounds set out in the face of the application and the supporting affidavit sworn by Edwin Turere Mapelu on 21/10/2021.
The respondent opposed to the application vide replying affidavit sworn by the respondent on 29/11/2021.
The respondent also filed an objection and answer to the said petition on 29/11/2021. The respondent alongside Alex Lenkai Mapelu, Timothy Mapelu and Charity Naeku Mapelu the 2nd, 3rd and 4th objectors.
The application was canvassed by way of written submissions.
The Applicant’s Submissions.
The applicant submitted that since the respondent herein refused to take out letters of administration on behalf of the deceased’s estate, she does not have the authority in whatever manner deal with the properties of the deceased including L.R. No. Narok/cismara/oleleshwa/3954 And Plot No. 12 Narok Township and her collection of rent from the said properties and using the income for her personal gain to the exclusion of other beneficiaries’ amounts to intermeddling as explained.
The applicant submitted that land parcel Block 3/89 Narok Town Also Known As L.R. Narok Township /100 does not form part of the deceased estate. The parcel of land was allocated to the petitioner in the year 2007 by the town council of Narok upon successful application and a title deed was issued to the same effect.
The applicant has relied on the following authorities;
The respondent submitted that the deceased died testate leaving a will dated 10/04/2014 that named the applicant as co-executor therefore the petition and the proceedings herein are defective, nullity and the application is not made in good faith; it amounts to abuse of the court process.
The respondents submitted that the appellant should not be granted leave to adduce additional/ evidence as the same does not amount to compelling evidence.
The respondent relied on the following authorities
Analysis And Determination
13.I have considered the application, the supporting affidavit, and the replying affidavit, the answer to petition for grant, written submissions made and the relevant provisions of the Law. I find two issues arise for my consideration;
The court (Bwonwong’a J) addressed the issue of whether or not the applicant is entitled to the orders sought as follows;
The learned judge further addressed the issue of validity of the will herein as follows;
17.Bwonwonga J heard the parities and dealt with all the concerns by the parties herein. His decision was dispositive of the issues being raised herein. Doubtless, as long as the validity of the will has not been resolved, the executor cannot seek orders which would offend the doctrine of relation back and his obligation under the will.
18.In the circumstances, it is an abuse of court process to repackage similar facts and circumstances to found a ‘new’ cause of action and ‘suit’.
19.Again, this application is a sort of appeal on the decision of this court (Bwonwonga J). Without much ado, it is clear this application is fit for dismissal.
Conclusion and orders.
20.For the foregone reasons, the summons dated October 21, 2021 is an abuse of process of the court; lacks merit; and is dismissed with no order as to costs as the matter involves family members. The parties should, however, pursue proceedings on validity of will herein. The other file being NAROK HC SUCC. NO. 26 OF 2018 to be mentioned with this file on October 12, 2022. It is so ordered.