[2007] KEHC 1041 (KLR)
The court found that the applicants failed to prove the alleged value of the estate, as their assertion that it was worth 2 million Kenya Shillings was unsupported by evidence and was not raised in the subordinate court. The court also determined that the will was validly attested, with two witnesses having given...
Source-derived case information.
- Citation
- [2007] KEHC 1041 (KLR)
- Parties
- Applicant: Gibson Wanjohi Ngundo; Applicant: Kariuki Ngundo; Respondent: Wachira Kinguru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 7 of 2005
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application dismissed
- Legal Topics
- Succession Proceedings, Revocation of Grant, Jurisdiction of Magistrate, Validity of Will
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gibson Wanjohi Ngundo
Applicant
Kariuki Ngundo
Applicant
Wachira Kinguru
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the grant issued in Principal Magistrate’s Succession Cause No. 4/1995 at Murang’a should be revoked or annulled under section 76 of the Succession Act.
- 2 Whether the Magistrate had jurisdiction to hear the succession cause given the alleged value of the estate.
- 3 Whether the will presented was valid and properly attested.
Ratio Decidendi
The court found that the applicants failed to prove the alleged value of the estate, as their assertion that it was worth 2 million Kenya Shillings was unsupported by evidence and was not raised in the subordinate court. The court also determined that the will was validly attested, with two witnesses having given evidence, and that the trial Magistrate's judgment on the validity of the will had not been appealed against and remained valid. The applicants did not satisfy the statutory grounds for revocation of the grant under section 76 of the Succession Act. Consequently, the application to annul or revoke the grant was dismissed.
Court Disposition
application dismissed
Orders
- The application to annul or revoke the grant is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Misc 7 of 2005
GIBSON WANJOHI NGUNDO…………….……………………..1ST APPLICANT
KARIUKI NGUNDO……………………..………………....…........2ND APPLICANT
VERSUS
WACHIRA KINGURU……………………..………..……...……….RESPONDENT
JUDGMENT
Before the court is an application to a null or revoke a grant brought under section 48 and 76 of Succession Act and Rule 44 of P& A rules.
The ground for making application is that :-
The Magistrate who heard the case Principal Magistrate’s Succ Cause No.4/1995 at Murang’ahad no jurisdiction the assets of the estate being valued at 2 million Kenya Shillings and that the proceedings to obtain grant was defective in substance and that the grant was obtained by making of a false statement or by concealment to court of material fact to the case. The affidavit in support shows that the Respondent showed a will written by deceased attached written in Kikuyu language not in court language. That the document surfaced upon filing Succession No. 4 of 1985 at Murang’a. It is shown that the document was invalid see Paragraph 12 of the supporting affidavit. It is also shown that the fingerprints experts evidence was not satisfactory. It is also a ground of applicant that all the alleged witnesses to the will were dead and therefore could not give evidence.
I have perused the record and I see two attesting witnesses to the will give evidence and the Trial Magistrate gave judgment on the strength of on finding that there was a valid will. This judgment has not been appealed against it is valid. On the issue of jurisdiction the applicants have not proved the value of the estate only allegation that it is 2 million the issue was not raised in Subordinate court. In matters of Succession High Court is empowered to hear appeal from all decision of subordinate courts. See section 50 (1) Succession Act also empowers the court to revoke any grant at any time under section 76 thereof. The condition to be satisfied are set out thereon.
I do not find that the applicant has proved the grounds the grounds set out under that Act. I therefore dismiss the application with no order as to costs.
Dated this 18th January, 2007.
J. N. KHAMINWA
JUDGE
18/1/2007
Khaminwa –Judge
Njue – Court Clerk
Mr. Mutahi for Applicants
Respondent present
Ruling read in open court.
J. N. KHAMINWA
JUDGE