WANGARI KIMARI & ANOTHER V. SAMUEL GITERE KIMARI

JUDGMENT

The High Court decided that letters of administration should be granted to the widow Wangari Kimari (the first appellant) and to Samuel Gitere Kimari (the respondent). The grant leaves out Shem Kihoro (the second appellant).

The appeal encompasses a number of objections against the high court’s decision but Mr Gachomba, representing the appellants, has reconsidered his position. He finds that he cannot challenge the exercise of the discretion by the learned judge vested in him by virtue of section 66 of The Succession Act (cap 160). What Mr Gachomba now seeks is confirmation that the learned judge construed and adapted section 66 correctly to the facts before him.

The learned judge in our view correctly construed the phraseology of section 66 and its setting in the family of this deceased person. He noted correctly that section 66 gave him a final discretion to decide to whom letters of administration should ultimately be granted. But he also directed himself that the decision would have to be in the best interest of all concerned. He also noted that the section suggested certain preferences by way of guidance; and set out section 66(a) of the Act. There is no doubt that the purpose of that section was to place the widow in a stronger position than she had enjoyed in customary law. But the preference is not necessarily final. In this case it was found that the widow was a suitable person to undertake the duties of an administrator. That is not now challenged.

However section 66(a) also provides that the widow can be appointed in association with or without another beneficiary. The widow had proposed that she should administer the estate in association with her own son Shem Kihoro. She thus ignored the children of the senior house, their mother Wanjiru having predeceased their father Kimani Gitere. Here the learned judge thought it advisable to consider the family interests of both houses to appoint the eldest son of senior house in lieu of Shem Kihoro. In doing so, he referred to the position at customary law. That may well be advisable and in principle it certainly avers in this case. Nevertheless the judge made provision for disputes. Now both houses have been represented.But we note that having done so, the learned judge went on to advise himself that he had a final discretion. That we think it correct. The high court may take into account all the circumstances pertaining to the family on the law and what is practicable.

Therefore, with the concurrence of Mr Gachomba we dismiss the appeal.Counsel have also been good enough to agree on costs. The same order is to make on this appeal as was made in high court. As the appeal was restricted to this one matter of law, we think that would be a proper course to adopt.

Accordingly the appeal costs of each party will be med from the estate.

The orders of the high court to stand.

Dated and delivered at Nairobi this 9th day of September, 1988

H.G PLATT

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JUDGE OF APPEAL

J.E GICHERU

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AG. JUDGE OF APPEAL

R.O KWACH

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AG. JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR