[2021] KEHC 6629 (KLR)
The court found that the issue of the Will dated 15th July 1999 is central to the dispute between the parties, all of whom are beneficiaries of the deceased's estate. However, the High Court (Civil Division) is not the appropriate forum to determine the validity or effect of the Will, as this matter is already...
Source-derived case information.
- Citation
- [2021] KEHC 6629 (KLR)
- Parties
- Appellant: Esther Njeri Njenga; Appellant: Rose Wanjiku Njenga (Legal representative of the estate of Walter Njenga); Respondent: Stephen Nganga Njenga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 938 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application to Adduce Additional Evidence
- Outcome
- Application deferred pending determination of the Will in the Family Division.
- Legal Topics
- Adduction of Additional Evidence, Succession and Wills, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Njeri Njenga
Appellant
Rose Wanjiku Njenga (Legal representative of the estate of Walter Njenga)
Appellant
Stephen Nganga Njenga
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Adduce Additional Evidence
Legal Issues
- 1 Whether the appellants/applicants should be allowed to adduce additional evidence in the form of a Will in the appeal.
- 2 Whether the High Court (Civil Division) is the appropriate forum to determine the validity of the Will.
- 3 Whether the issue of the Will should first be determined in the pending Succession Cause.
Ratio Decidendi
The court found that the issue of the Will dated 15th July 1999 is central to the dispute between the parties, all of whom are beneficiaries of the deceased's estate. However, the High Court (Civil Division) is not the appropriate forum to determine the validity or effect of the Will, as this matter is already pending before the Family Division in Nairobi High Court Succession Cause No. 2939 of 2014. The court therefore deferred consideration of the application to adduce additional evidence, directing the parties to seek a determination on the Will in the succession proceedings within 90 days. The court will only proceed with the application after the Family Division has ruled on the Will.
Court Disposition
Application deferred pending determination of the Will in the Family Division.
Orders
- Parties to move the Family Division in Nairobi High Court Succession Cause No. 2939 of 2014 for determination of the Will within 90 days.
- Mention on 28th September 2021 to confirm the position before this court can decide on the application dated 18th June 2020.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 938 OF 2005
ESTHER NJERI NJENGA
ROSE WANJIKU NJENGA
(Legal representative of theestate ofWALTER NJENGA)........APPELLANTS/APPLICANTS
VERSUS
STEPHEN NGANGA NJENGA..........................................................................RESPONDENT
RULING
1. Before me is a notice of motion dated 18th June 2020 seeking an order to allow the appellants/applicants to adduce additional evidence. Its brought under section 1A, 1B, 3A, 78(1)(d) of the Criminal Procedure Act and Order 42 Rule 7 and Order 51 Rule 1 of the Criminal Procedure Rules. It is supported by the grounds on its face plus the supporting affidavit of Esther Njeri Njenga.
2. The application is opposed by the respondent who filed a replying affidavit sworn on 8th September 2020.
3. The document that the appellants/applicants seek to have admitted as evidence is a Will sworn by one Walter Njenga (now deceased) who was the initial appellant. There are other documents accompanying the Will.
4. I have studied the entire file and I find that the issue of this Will dated 15th July 1999 is a serious one and MUST be first sorted out. This court is not the right place for that. The matter is already before the Family Division vide Nairobi High Court Succession Cause No. 2939 of 2014. The appellants and the respondent are all children of the deceased Walter Njenga Kagerine and so are beneficiaries of his estate.
5. I am therefore giving the parties herein 90 days for them to move the court in the said Succession cause for a determination on that WILL. There is no short cut to this issue. Mention on 28th September 2021 to confirm the position before this court can decide on the application dated 18th June 2020.
DELIVERED ONLINE, SIGNED AND DATED THIS 31ST DAY OF MAY 2021IN OPEN COURT AT NAIROBI.
H. I. ONG’UDI
JUDGE