[2002] KEHC 1027 (KLR)
The court found that the caveat filed by the respondents was invalid as it was filed on behalf of two caveators contrary to rule 15(3) of the Probate and Administration Rules. The court emphasized that the Succession Act and its rules must be strictly construed, leaving no room for invalid documents. Although the...
Source-derived case information.
- Citation
- [2002] KEHC 1027 (KLR)
- Parties
- Applicant: Sabinr Weist; Respondent: Unnamed Caveators
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 17 of 2001
- Procedural Posture
- Succession Cause / Ruling on Application for Removal of Caveat
- Outcome
- Application allowed; caveat declared invalid and removed; costs awarded to applicant.
- Legal Topics
- Probate and Administration, Caveats, Confirmation of Grant, Invalid Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Sabinr Weist
Applicant
Unnamed Caveators
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Removal of Caveat
Legal Issues
- 1 Whether the caveat filed by the respondents is valid under the Probate and Administration Rules.
- 2 Whether the applicant is entitled to removal of the caveat given the procedural status of the grant.
- 3 Whether the absence of a translation of the will affects the validity of the caveat.
Ratio Decidendi
The court found that the caveat filed by the respondents was invalid as it was filed on behalf of two caveators contrary to rule 15(3) of the Probate and Administration Rules. The court emphasized that the Succession Act and its rules must be strictly construed, leaving no room for invalid documents. Although the respondents objected to the removal of the caveat on the basis that the grant was issued without full disclosure of the will, the court noted that there was no evidence before it, such as a translation of the will from German, to support this claim. Furthermore, the caveat was filed after the grant had already been issued, and there was no application to revoke the grant. The...
Court Disposition
Application allowed; caveat declared invalid and removed; costs awarded to applicant.
Orders
- The caveat filed by the respondents is declared invalid and is hereby removed.
- Costs of the application are awarded to the applicant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA SUCCESSION CAUSE NO.17 OF 2001
IN THE MATTER OF: THE ESTATE OF BERND GERHARD GUSTAN FURCHERTDECEASED.
AND
IN THE MATTER OF: SABINR WEIST – APPLICANT
R U L I N G
The Applicant applies for removal of a caveat filed by persons who claim interest in the estate of the deceased. By the time the caveat was filed the grant was already issued. There is no application to revoke that grant.
But the grant is yet to be confirmed there being no application for confirmation. The application is opposed by caveators on the ground that the grant was issued on the disclosure of only a codicil not the full will. This evidence is not before the court there being no translation to that effect from the Germany language. The court notes that the caveat was filed on behalf of 2 caveators contrary to provisions of rule 15(3) Probate and Administration Rules.
This caveat is therefore invalid. The provisions of Succession Act and Rules thereof are to be construed strictly and there is no room to allow an invalid document to stand.
I also notice that there is no provision of discharging a caveat other than as provided under the rules. It the duty of Registrar to notify any dealings on the estate to the Caveator but by the time this caveat was filed the grant was already issued. It remains only to confirm the same. No application is filed to do so. However the Respondent was served with this application and he has only filed a replying affidavit objecting to the removal of the caveat. I am of the opinion that he is entitled to object because grant has not yet been confirmed. He may have a right to object to the confirmation. However the caveat as it is filed offends the rules of Probate as mentioned above.
In the circumstances I find the caveat invalid and I am inclined for this reason only to allow the application with Costs to the Applicant.
Dated at Mombasa this 25th Day of April, 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE