[2013] KEHC 2848 (KLR)
The court found that although the parties initially consented to proceed by affidavit evidence, the subsequent withdrawal of consent by the 1st and 3rd Petitioners and the lack of consensus on the mode of hearing necessitated compliance with the Probate and Administration Rules. Specifically, in the absence of...
Source-derived case information.
- Citation
- [2013] KEHC 2848 (KLR)
- Parties
- Applicant: David Mbalu; Applicant: Alice Mbalu; Applicant: John Nzunza Mbalu; Respondent: Peter Mbalu; Respondent: Nzisa Mbalu; Respondent: Kyalo Mbalu; Respondent: Ndambo Mbalu; Respondent: Mutungi Mbalu; Respondent: Nduku Mbalu
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 767 of 2007
- Procedural Posture
- Succession Cause / Ruling on Mode of Hearing for Confirmation of Grant
- Outcome
- Directions issued for the matter to proceed by viva voce evidence.
- Judges
- BT Jaden
- Legal Topics
- Succession, Confirmation of Grant, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mbalu
Applicant
Alice Mbalu
Applicant
John Nzunza Mbalu
Applicant
Peter Mbalu
Respondent
Nzisa Mbalu
Respondent
Kyalo Mbalu
Respondent
Ndambo Mbalu
Respondent
Mutungi Mbalu
Respondent
Nduku Mbalu
Respondent
Procedural Posture
Succession Cause / Ruling on Mode of Hearing for Confirmation of Grant
Legal Issues
- 1 Whether the confirmation of grant and distribution of the estate should proceed by affidavit evidence or viva voce evidence.
- 2 Whether proper directions under the Probate and Administration Rules were taken before proceeding to ruling.
Ratio Decidendi
The court found that although the parties initially consented to proceed by affidavit evidence, the subsequent withdrawal of consent by the 1st and 3rd Petitioners and the lack of consensus on the mode of hearing necessitated compliance with the Probate and Administration Rules. Specifically, in the absence of agreement, the matter should proceed by way of viva voce evidence to ensure all parties have an opportunity to present their case fully. The court thus directed that the confirmation of grant and distribution of the estate be determined through oral evidence, in accordance with rule 40(8) of the Probate and Administration Rules.
Court Disposition
Directions issued for the matter to proceed by viva voce evidence.
Orders
- The matter shall proceed by way of viva voce evidence as per rule 40(8) of the Probate and Administration Rules.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 767 OF 2007
IN THE MATTER OF THE ESTATE OF MBALU NZUNZA (DECEASED)
DAVID MBALU
ALICE MBALU
JOHN NZUNZA MBALU ....................... PETITIONERS/APPLICANTS
VERSUS
PETER MBALU
NZISA MBALU
KYALO MBALU
NDAMBO MBALU
MUTUNGI MBALU
NDUKU MBALU ……………….……… BENEFICIARIES/RESPONDENTS
R U L I N G
Following a filing of the Summons for confirmation of grant by the 2nd Petitioner, Alice Mbalu, the 1st Petitioner, David Ndambo and the 3rd Petitioner John Nzunza filed an affidavit sworn on 23/4/2012 on their preferred mode of distribution pursuant to the court’s directions given on 28/2/2012.
The 2nd Petitioner also filed an affidavit sworn on 26/4/2012 giving her proposal on distribution.
The 1st and 3rd Petitioner filed an affidavit sworn on 2/5/2012 pursuant to leave granted by the court on 27/4/2012. The 2nd Petitioner filed a further affidavit sworn on 22/5/2012. The 1st and 3rd Petitioners filed a further affidavit sworn on 25/7/2012 pursuant to leave granted by the court on 20/7/2012. The beneficiaries thereafter embarked on out of court negotiations but the same did not bear any fruit.
On 11/2/2013, there was a consent that the court do proceed to rule on the question of distribution based on the affidavit evidence on record. Prior to the ruling date, counsel for 1st and 3rd Petitioner wrote to court stating that the aforestated consent was recorded in error as no directions had been taken as provided for under rule 40 (6) & 41 of the Probate and Administration Rules.
To my mind, once the parties agreed to proceed by way of affidavit evidence and the court ordered accordingly, there were no other directions required. The directions were that the distribution was to proceed by way of affidavit evidence.
However, it has now turned over that the 1st and 3rd Petitioner prefer to proceed by way of viva voce evidence. There being no consent on distribution and taking into account that there is no consensus on proceeding by way of affidavit evidence, the matter ought to proceed for directions as provided for under rule 40 (8) of the Probate and Administration Rules.
Consequently, directions are hereby given for the matter to proceed by way of viva voce evidence.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 18thday of July 2013.
………………………………………
B. THURANIRA JADEN
JUDGE