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High CourtDismissedSuccession Cause (application dated 14 June 2019)

In re Estate of Francis Muiri Ngacha alias Hudson Muiri Ngacha (Deceased)

High Court of Kenya
10 July 2020
NJNgaah Jairus
1,012 words in judgment
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The bottom line

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If you disagree with a court order, you must appeal it rather than filing a similar, repeated application.

What this practically means

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Executive summary

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This ruling of the High Court (Ngaah Jairus J) disposed of an application dated 14 June 2019 in a succession cause concerning the intestate estate of Francis Muiri Ngacha, who died on 27 June 2013. By the order of 12 October 2016, the surviving widow, another child (the 2nd applicant), and the respondent were appointed joint administrators. The applicants sought review or variation of that order and, additionally, that all income accruing to the estate be paid to the 1st applicant, alleging that the respondent had been uncooperative, with the result that the court-ordered joint bank account had not been opened. The respondent denied responsibility, accusing the applicants of colluding with a bank officer to frustrate him. The court observed that the application was substantially a repetition of a similar application dated 28 February 2017, which the court dismissed in a ruling delivered on 18 May 2018; the proper remedy against that ruling would have been an appeal. The court therefore held the present application to be largely an abuse of the court process. Emphasising that collateral applications cloud the primary task of proper administration and distribution, the court noted that both sides had filed summonses for confirmation of grant and that an affidavit of protest by John Ngacha Muiri had been filed. The court dismissed the applicants' summons dated 14 June 2019, directed that the cause be mentioned on 15 July 2020 for directions on the hearing of the confirmation summonses and the protest, and ordered costs to be in the cause.

Key legal issues

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01

Abuse of court process through repeated applications

Holding

The application, being substantially similar to the one dismissed on 18 May 2018, is an abuse of process

Reasoning

The court found the present application no different from the earlier one seeking review of the 12 October 2016 order; the only additions were the request for estate income and a new reason (uncooperative administrator). The proper remedy against the 18 May 2018 ruling was an appeal, not a fresh application.

p. 1
02

Primacy of confirmation proceedings in estate administration

Holding

Disputes over distribution and administration should be canvassed in the confirmation proceedings, not in collateral applications

Reasoning

The court noted that secondary contests cloud the primary task of ensuring proper administration and distribution. It had already directed filing of confirmation summonses to bring the matter to an expeditious conclusion, and both administrators had filed such summonses, with a protest affidavit.

p. 2

Legal principles established

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  • A party dissatisfied with a court decision should appeal rather than file a similar application that was earlier dismissed, which constitutes an abuse of process

Court orders

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  1. 1.The applicants' summons dated 14 June 2019 is dismissed
  2. 2.The cause to be mentioned on 15 July 2020 for directions on the hearing of the summonses for confirmation of Grant and the protest against them
  3. 3.Costs shall be in the cause
Jurisdiction invoked
Probate and administration jurisdiction over the intestate estate; review/variation of orders of 12 October 2016 appointing joint administrators

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 Francis Muiri Ngacha alias Hudson Muiri Ngacha (Deceased)", Case Analysis (2020). Succession Cause (application dated 14 June 2019). Source:

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