[2015] KEHC 5430 (KLR)
The court found that the issuance of a grant of letters of administration intestate was erroneous because the deceased had left a written will and the petitioners had sought probate of that will. The error was attributed to the court's own mistake, not to any fault of the petitioners. The court further held that the...
Source-derived case information.
- Citation
- [2015] KEHC 5430 (KLR)
- Parties
- Applicant: David Charles Njoga; Applicant: Evans Wilfred Njenga
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 360 of 2014
- Procedural Posture
- Succession Cause / Ruling on Summons for Annulment and Issuance of Grant of Probate
- Outcome
- Application allowed. Previous grant annulled. Grant of probate to be issued to both petitioners jointly.
- Judges
- DW Mbuteti
- Legal Topics
- Probate, Grant of Letters of Administration, Annulment of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Charles Njoga
Applicant
Evans Wilfred Njenga
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Annulment and Issuance of Grant of Probate
Legal Issues
- 1 Whether the grant of letters of administration intestate issued was proper given the existence of a written will.
- 2 Whether the grant should have been issued to both petitioners as executors of the will.
Ratio Decidendi
The court found that the issuance of a grant of letters of administration intestate was erroneous because the deceased had left a written will and the petitioners had sought probate of that will. The error was attributed to the court's own mistake, not to any fault of the petitioners. The court further held that the grant should have been issued to both petitioners as joint executors, in accordance with the will and the Law of Succession Act. Consequently, the court annulled the previous grant and ordered the issuance of a grant of probate of the deceased's written will to both petitioners jointly.
Court Disposition
Application allowed. Previous grant annulled. Grant of probate to be issued to both petitioners jointly.
Orders
- The grant of letters of administration intestate issued on 9th October 2014 is annulled.
- A grant of probate of the deceased's written will dated 21st July 2013 shall be issued jointly to the two petitioners.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
SUCCEESSION CAUSE NO 360 OF 2014
IN THE MATTER OF THE ESTATE OF DAVID KAMAU KANINI, DECEASED
DAVID CHARLES NJOGA
EVANS WILFRED NJENGA….....................…………..PETIONERS
R U L I N G
1. The Petitioners herein, David Charles Njoga and Evans Wilfred Njenga, sought by an undated petition filed on 27/05/2014 probate of the Written Will of the Deceased David Kamau Kanini who died on 25/12/2013. The Will, which was annexed to the petition, is dated 21/07/2013.
2. The petition was gazetted vide Gazette Notice No 5553 of 08/08/2014. Although there is not in the court record the usual order for issuance of the necessary grant made by a Judge, nevertheless a grant of letters of administration intestate was issued on 09/10/2014 to the 1st Petitioner alone and signed by a Judge. Issuance of the grant of letters of administration intestate was of course wrong; what should have been issued was a grant of probate of the Deceased’s Written Will. That is what was sought in the petition. The grant should also have been issued to both Petitioners; I cannot find in the record of the court the reason for issuance of the grant to the 1st Petitioner alone.
3. The Petitioners have now come back to court by summons dated 09/02/2015 seeking annulment of the said grant of letters of administration intestate and issuance of a grant of probate of the Deceased’s Written Will. The summons is supported by an affidavit sworn by one of the 1st Petitioner, who is also one of the executors of the Deceased’s Will.
4. I have no difficulty at all allowing this application, which application was necessitated by the court’s own mistake. The grant of letters of administration intestate issued in this cause on 9th October 2014 is hereby annulled. In its place a grant of probate of the Deceased’s Written Will dated 21st February 2013 shall be issued jointly to the two Petitioners. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 21ST DAY OF APRIL 2015
H P G WAWERU
JUDGE
DELIVERED THIS 24TH DAY OF APRIL 2015