[2014] KEHC 7299 (KLR)
The court held that the deceased died testate and the validity of the will was not challenged. The executor named in the will, Milka Wanjiru Gatuguta, is entitled to administer the estate in accordance with the law. The objector, being a creditor, does not have priority over the executor and should pursue its claim...
Source-derived case information.
- Citation
- [2014] KEHC 7299 (KLR)
- Parties
- Applicant: Milka Wanjiru Gatuguta; Respondent: Kangondi Farmers Corperative Society Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1514 of 2006
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Objection dismissed; grant of probate to applicant.
- Judges
- DN Musyoka
- Legal Topics
- Probate of Will, Executor Priority, Creditor Claims, Testate Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Milka Wanjiru Gatuguta
Applicant
Kangondi Farmers Corperative Society Ltd.
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether a creditor has priority over the executor in the administration of a testate estate.
- 2 Whether the objection to the grant of probate by the creditor is merited.
Ratio Decidendi
The court held that the deceased died testate and the validity of the will was not challenged. The executor named in the will, Milka Wanjiru Gatuguta, is entitled to administer the estate in accordance with the law. The objector, being a creditor, does not have priority over the executor and should pursue its claim through the proper channels after the grant is issued. The objection proceedings were found to be misconceived and without merit, and were accordingly dismissed with costs to the estate. The grant of probate of the written will of Joseph Kararahe Gatuguta was ordered to issue to the applicant.
Court Disposition
Objection dismissed; grant of probate to applicant.
Orders
- Objection by Kangondi Farmers Corperative Society Ltd. is dismissed with costs to the estate.
- Grant of probate of the written will of Joseph Kararahe Gatuguta shall issue to Milka Wanjiru Gatuguta.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
SUCCESSION CAUSE NO: 1514 OF 2006
IN THE MATTER OF THE JOSEPH KARARAHE GATUGUTA-( DECEASED)
JUDGMENT
1. The deceased died on 29th December 2004 at Kikuyu Township. A petition for grant of probate of his written will made on 13th April 1998 was filed on 6th June 2006 by Milka Wanjiru Gatuguta, his widow and executrix of his will.
2. Notice was published in the Kenya Gazette of 18th August 2006 of the filing of the petition.
3. On 15th September 2006 a notice of objector to the making of the grant dated 15th September 2006 was lodged in the cause on behalf of a creditor called Kangondi Farmers Corperative Society Ltd. A notice under Rule 17(5) of the Probate and Administration Rules was given to the advocates for the proposed objector. The said notice was dated 12th April 2007.
4. The objector filed an answer to the petition and a petition by way of cross-application on 9th July 2007.
5. The deceased died testate. He left a will, whose validity is not being challenged by the objector. In terms of priority to administration of the estate concerned, the executor of the will of the deceased is entitled to administer the estate.
6. The objector is a creditor. The fact of being creditor does not give the objector preference over the executor of the will of the deceased. The creditor is ideally putting the cart before the horse. It should file its claim with the executor once grant is made so that the executor can settle the claim. Alternatively, the creditor should seek to enforce the decree against its estate (through the execution of the decree it holds) in the cause in which the decree was made.
7. The instant objection proceedings are clearly misconceived and without merit. I dismiss the objection with costs to the estate. Grant of probate of the written will of Joseph Kararahe Gatuguta shall issue to Milka Wanjiru Gatuguta.
DATED, SIGNED and DELIVERED at NAIROBI this31st DAY OF January, 2014.
W. MUSYOKA
JUDGE