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High CourtPartially Allowed

In re Estate of the Deceased - Preliminary Objection by the Applicant (Succession Cause)

High Court of Kenya
2 November 2020
SGS. M. Githinji
1,374 words in judgment
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The bottom line

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To challenge an estate grant in Kenya, you must prove you are a legal dependant and have the proper legal standing.

What this practically means

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Executive summary

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This was a preliminary objection dated 16th December 2019 in a succession cause before the High Court at Eldoret, in which the applicant (the administrator of the deceased's estate) objected to a cause and application by the respondent, a widow claiming to be a daughter-in-law of the deceased, seeking revocation of a grant of letters of administration issued to the applicant. The applicant raised five grounds: incompetence for failure to take out a grant of representation as required by Section 82 of the Law of Succession Act; the wrong procedure for challenging confirmation of grant (rule 40(6) of the Probate and Administration Rules requires an affidavit, not an objection); lack of jurisdiction to direct the DCIO to investigate a chief's letter; the respondent's disqualification as a daughter-in-law under Section 29; and the application not being brought under any provision of law. The applicant relied on Mukisa Biscuit Manufacturing Co. Ltd v West Distributors on the nature of preliminary objections, and on Troustic International Union, Re Estate of Karuri Magu and Re Estate of M'Muthamia Mwendwa. No submissions were filed for the respondent. The court, framed a single issue - whether the applicant's cause is incompetent - and held that the respondent is not a dependant under Section 29, having shown no maintenance by the deceased or incorporation into his family, and that she holds no grant of representation for her late husband's estate, so she cannot represent his interest. The preliminary objection succeeded in its entirety, the cause was found fatally defective, and costs were awarded to the applicant.

Key legal issues

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01

Whether the respondent has locus standi to seek revocation of the grant as a daughter-in-law of the deceased

Holding

She does not; she is not a dependant under Section 29 and holds no grant of representation for her husband's estate, so her cause is incompetent and fatally defective.

Reasoning

Section 29 defines dependants as wives, children, and specified relatives who were maintained by the deceased or taken into his family. A daughter-in-law is not listed, and the respondent showed no maintenance or family incorporation. Further, Section 82 empowers only personal representatives to enforce causes of action, and she took no grant for her late husband's estate, so she cannot represent his interest.

p. 3
02

Whether the form of the objection (as opposed to affidavit of protest under rule 40(6)) matters

Holding

The form issue does not arise because the respondent lacks capacity entirely; even an affidavit of protest would be untenable.

Reasoning

Having determined the respondent is not a dependant and has no locus standi, the procedural complaint about the mode of challenging confirmation becomes academic, since no capacity to pursue any challenge exists.

p. 3

Legal principles established

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  • A daughter-in-law who was not maintained by the deceased nor taken into his family is not a dependant under Section 29 and lacks locus standi to seek revocation of a grant.
  • Only a personal representative may represent an estate in proceedings; a party must take out a grant of representation for a deceased person's estate to pursue claims on its behalf.

Court orders

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  1. 1.The preliminary objection dated 16th December 2019 is allowed in its entirety
  2. 2.The respondent's cause/application is found fatally defective
  3. 3.Costs to the applicant
Jurisdiction invoked
Original probate and succession jurisdiction under the Law of Succession Act (Cap 160)

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 re Estate of the Deceased - Preliminary Objection by the Applicant (Succession Cause)", Case Analysis (2020). . Source:

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