[2021] KEHC 3311 (KLR)
The court held that the grant of probate for the estate of Bhagwanji Hemraj Jetha Shah should be confirmed as the will was valid, uncontested, and clearly identified the beneficiaries and their respective shares. The court further held that the executor of Monghiben Bhagwanji Shah's estate must obtain a separate...
Source-derived case information.
- Citation
- [2021] KEHC 3311 (KLR)
- Parties
- Applicant: Ramesh Bhagwanji Shah
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 239 of 2020
- Procedural Posture
- Succession Cause / Ruling on Summons for Confirmation of Grant of Probate
- Outcome
- summons for confirmation of grant allowed; grant of probate confirmed
- Legal Topics
- Probate and Administration, Confirmation of Grant, Wills and Bequests
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ramesh Bhagwanji Shah
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Confirmation of Grant of Probate
Legal Issues
- 1 Whether the grant of probate for the estate of Bhagwanji Hemraj Jetha Shah should be confirmed in accordance with the will.
- 2 Whether the executor of Monghiben Bhagwanji Shah's estate can administer her estate without a separate grant of probate.
- 3 Whether the estates should be consolidated for purposes of distribution.
Ratio Decidendi
The court held that the grant of probate for the estate of Bhagwanji Hemraj Jetha Shah should be confirmed as the will was valid, uncontested, and clearly identified the beneficiaries and their respective shares. The court further held that the executor of Monghiben Bhagwanji Shah's estate must obtain a separate grant of probate for her estate before any distribution of her share can occur. The court emphasized that parties are bound by their pleadings and that proper procedure must be followed, including gazettement and confirmation of grants, before assets can be distributed. The summons for confirmation was allowed, and the grant of probate was confirmed in accordance with the...
Court Disposition
summons for confirmation of grant allowed; grant of probate confirmed
Orders
- The grant of probate with will annexed for the estate of Bhagwanji Hemraj Jetha Shah issued on 27th November 2020 is confirmed.
- The estate of the deceased shall devolve to the beneficiaries named in his will in accordance with his wishes.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 239 OF 2020
IN THE MATTER OF THE ESTATE OF BHAGWANJI HEMRAJ JETHA SHAH (DECEASED)
RAMESH BHANGWANJI SHAH..........................................PETITIONER
RULING
1. There are two estates for distribution before me and each has a will. The Estate substantively before me for confirmation of grant of probate is that of BHAGWANJI HEMRAJ JETHA SHAH who died domiciled in Nairobi, Kenya on 26th December 2011.
2. In his will, the Deceased has identified and bequeathed his entire estate to three persons;
i. Monghiben Bhagwanji Shah - Real and personal estate
ii. Damyanti Ramesh Shah - Lr No. 7158/82
iii. Ramesh Bhagwanji Shah - All shares in Jaydees Knitting Factory Limited
Monghiben survived the deceased but has since passed away. The will has not been contested although it did not provide for his two daughters.
3. The second Estate is that of MONGHIBEN BHAGWANJI SHAH in which Ramesh Bhagwanji Shah is also the executor named in the will. The executor in this estate cannot purport to administer the estate in a paragraph in an affidavit in support of the summons for confirmation of a different grant of probate. It is trite law that parties are bound by their own pleadings and that any variance however strong should be disregarded. See Daniel Otieno Migore -Vs- South Nyanza Sugar Co. Ltd [2018] eKLR.
4. It is not in dispute that the Estate of MONGHIBEN is entitled to a share of the estate of the deceased herein. The executor should have filed for grant of probate. Once gazetted and the grant issued, the two causes would be open to consolidation for purposes of confirmation of the grants and the distribution of the assets in each estate to the beneficiaries named in the respective wills.
5. That having not been done the court allows the summons for confirmation dated 28th June 2021 with the following orders;
i) The grant of probate with will annexed in regard to the Estate of BHAGWANJI HEMRAJ JETHA SHAH issued on 27th November 2020 be and is hereby confirmed.
The estate of the deceased herein shall devolve to the beneficiaries named in his will in accordance with his wishes in the said will annexed to the supporting affidavit dated 28/6/21
ii) The Executor named in the will of MONGHIBEN BHAGWANJI SHAH shall file for grant of probate of her will and have it gazetted and confirmed before the assets in her estate can be distributed.
iii) Cost shall be in the cause
SIGNED DATED AND DELIVERED THIS 6TH DAY OF OCTOBER 2021.
………….……………….
L. A. ACHODE
HIGH COURT JUDGE