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High CourtPartially Allowed· [2019] KEHC 2981 (KLR)

STEPHEN KIPROTICH v WILLIAM METTO

High Court of Kenya
2 October 2019
SGS. M Githinji
1,776 words in judgment
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The bottom line

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Getting a grant of administration without the consent of all beneficiaries can lead to the court revoking the entire process.

What this practically means

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Executive summary

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The petitioner petitioned for letters of administration intestate of the estate of the deceased on 3rd February 2005, and the grant was issued. On 24th November 2005 the objector filed a notice of objection on the grounds that the petitioner was not a son of the deceased, had already been given and disposed of his share of 2.5 acres out of the parcel Kaptagat/Lotonyok/Block 5 (Ngelel Tarit) 126, and that the proceedings were commenced without the knowledge and consent of all beneficiaries. On 16th July 2007 the objector filed a cross-application under rule 17(5) seeking letters of administration himself. The objector relied on Sections 66 and 76 of the Law of Succession Act, arguing the grant was defective for lack of consent and non-disclosure of a Duka Moja plot allegedly fraudulently disposed of by the petitioner. The petitioner, asserting he was the only son of the first house of a polygamous family, sought confirmation of the grant and equal distribution among all beneficiaries, relying on Sections 29 and 38 and several Re Estate authorities. The court framed two issues: whether all beneficiaries consented to the petitioner's appointment, and whether the grant should be revoked. Applying rule 26 of the Probate and Administration Rules and Section 66, it found the petitioner required consent from the other beneficiaries or should have issued a citation, and the evidence proved no consent was obtained. Under Section 76(a), the absence of consent rendered the proceedings defective in substance. The objection was allowed, the grant was revoked, and costs were awarded to the objector. The court did not determine the distribution or the objector's cross-application.

Key legal issues

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01

Whether all beneficiaries consented to the petitioner's appointment as administrator

Holding

The petitioner did not obtain consent from the other beneficiaries as required by rule 26 of the Probate and Administration Rules and Section 66 of the Law of Succession Act

Reasoning

Rule 26 requires notice to, or written consent from, all persons entitled in the same degree or priority. The petitioner could alternatively have issued a citation if consent was refused. The evidence, including witness testimony, proved that no consent was obtained from the other dependants before taking out the grant.

p. 3
02

Whether the grant should be revoked

Holding

Yes - the grant was revoked because the proceedings to obtain it were defective in substance under Section 76(a)

Reasoning

Section 76(a) permits revocation where the proceedings to obtain the grant were defective in substance. Since the petitioner failed to obtain consent from all beneficiaries as required, the process of obtaining the grant was defective in substance, and the objection was upheld with costs to the objector.

p. 3

Legal principles established

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  • Letters of administration shall not be granted to an applicant without notice to, or consent of, every other person entitled in the same degree as or in priority to the applicant
  • A grant may be revoked where the proceedings to obtain it were defective in substance, including where consent of all beneficiaries was absent

Court orders

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  1. 1.The grant of letters of administration issued to the petitioner is revoked
  2. 2.Costs of the suit awarded to the objector

Authorities

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Legislation

  • Law of Succession ActSection 66
  • Law of Succession ActSection 76(a)
  • Law of Succession ActSection 38
  • Law of Succession ActSection 29
  • Probate and Administration RulesRule 26
  • Probate and Administration RulesRule 17(5)
  • Civil Procedure ActSection 27

Cases cited (4)

  • Re Estate of Job Ndunda Muthike (Deceased)
    [2018] eKLR

    Cited by petitioner on proof of the assets comprising the estate

  • Re Estate of Francis Mwangi Mbaria (Deceased)
    [2018] eKLR

    Cited by petitioner on equal distribution and dependants' entitlement

  • Re Estate of Joseph M'Ithili M'Thirua (Deceased)
    [2019] eKLR

    Cited by petitioner in support of equal distribution

  • Re estate of Martin Joseph Wandera (Deceased)
    [2019] eKLR

    Cited by petitioner in support of equal distribution

Jurisdiction invoked
Law of Succession Act (Cap 160), Sections 66, 76 and 38; Probate and Administration Rules rule 26

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, "STEPHEN KIPROTICH v WILLIAM METTO", Case Analysis (2019). . Source:

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