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High CourtDismissedChamber Summons dated 3.06.2006 (Succession Cause)

In the Matter of the Estate of Marete Gaitirithia (Deceased)

High Court of Kenya
25 May 2009
MEM. J. Anyara Emukule
657 words in judgment
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The bottom line

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Kenya's High Court confirmed that married daughters can administer a deceased parent's estate equally with widows, and refused to revoke the grant.

What this practically means

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Executive summary

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The Objectors, widows of the deceased, brought a Chamber Summons under Section 76 of the Law of Succession Act and Rules 17, 44 and 73 of the Probate and Administration Rules seeking a stay of proceedings, revocation (annulment) of the grant of letters of administration made to the Petitioners, and leave to file their objection and cross-petition out of time. They alleged the grant was procured fraudulently by false statement or concealment of material facts, and that the cause was filed secretly and clandestinely without their consent, the Petitioners having allegedly compromised the Chief of Kanyakine Location. The Petitioners, married daughters of the deceased, denied these averments in replying affidavits sworn on 31.05.2007, to which the Objectors filed no rejoinder. The court identified the sole issue as who between the widows and the married daughters should administer the estate. Applying Section 56(1) of the Law of Succession Act and rule 7(1) 7(e)(iii) of the Probate and Administration Rules, the court held that widows and daughters alike are within the first degree of consanguinity and any of them may take out the grant. Relying on the unchallenged affidavit of Aidah Karimi Murungi, the court found sufficient consultations occurred with the widows, clan elders and the local administration, defeating the allegation of clandestine filing. The Summons dated 3.06.2006 was dismissed, each party bearing its own costs, and the parties were directed to file affidavits or proposals for distribution within 30 days, there being a pending confirmation application dated 9.11.2005.

Key legal issues

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01

Priority between widows and married daughters in administration of a totally intestate estate

Holding

Widows, children, sons and daughters are all within the first degree of consanguinity and any of them may take out letters of administration; married daughters are not excluded

Reasoning

The court considered Section 56(1) of the Law of Succession Act and rule 7(1) 7(e)(iii) of the Probate and Administration Rules on entitlement to a grant on total intestacy, and concluded that widows and daughters share the same degree of priority, so the Objectors' claim of exclusive priority failed.

p. 2
02

Alleged fraud and clandestine procurement of the grant under Section 76

Holding

Revocation under Section 76 was not warranted; unchallenged replying affidavit evidence showed consultations with the widows, clan elders and the administration

Reasoning

The court relied on the unrebuted Replying Affidavit of Aidah Karimi Murungi (paragraphs 4, 5, 6 and 10) showing consultations with the Objectors, clan elders, the District Officer Abogeta Division and the Chief, finding the allegation of secret filing untrue and no basis for revocation.

p. 2

Legal principles established

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  • On total intestacy, widows, their children, sons and daughters fall within the first degree of consanguinity and any of them may apply for and take out letters of administration

Court orders

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  1. 1.The Summons dated 3.06.2006 is dismissed
  2. 2.Each party to bear its own costs
  3. 3.Petitioners and Objectors directed to file within 30 days their respective or joint affidavits and/or proposals for distribution of the estate of the late Marete Gaitirithia, deceased

Authorities

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Legislation

  • Law of Succession Act (Cap 160, Laws of Kenya)Section 76
  • Law of Succession Act (Cap 160, Laws of Kenya)Section 56(1)
  • Probate and Administration RulesRules 17, 44 and 73
  • Probate and Administration RulesRule 7(1) 7(e)(iii)
Jurisdiction invoked
Section 76 of the Law of Succession Act (Cap 160) and Rules 17, 44 and 73 of the Probate and Administration Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In the Matter of the Estate of Marete Gaitirithia (Deceased)", Case Analysis (2009). Chamber Summons dated 3.06.2006 (Succession Cause). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.