[2018] KEHC 1197 (KLR)
The court found that the deceased died testate, having left a valid will that was properly executed and witnessed. The petitioner did not contest the will or the objection, and the evidence of the objector and her witnesses was consistent and uncontroverted. The will appointed CKM as trustee and executor. The court...
Source-derived case information.
- Citation
- [2018] KEHC 1197 (KLR)
- Parties
- Petitioner: JMK; Petitioner: JMM; Objector: GKM; Interested Party: HMM; Interested Party: WM; Interested Party: CKM
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 361 of 2011
- Procedural Posture
- Succession Cause / Ruling on Objection to Petition for Grant of Probate
- Outcome
- Objection allowed. Grant of probate with will annexed issued to CKM.
- Judges
- A Mabeya, F Gikonyo
- Legal Topics
- Testate Succession, Grant of Probate, Validity of Will, Appointment of Executor
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JMK
Petitioner
JMM
Petitioner
GKM
Objector
HMM
Interested Party
WM
Interested Party
CKM
Interested Party
Procedural Posture
Succession Cause / Ruling on Objection to Petition for Grant of Probate
Legal Issues
- 1 Whether the deceased died testate and left a valid will.
- 2 Whether the petitioner was entitled to administer the estate of the deceased.
- 3 Whether the objector's objection to the petition should be upheld.
Ratio Decidendi
The court found that the deceased died testate, having left a valid will that was properly executed and witnessed. The petitioner did not contest the will or the objection, and the evidence of the objector and her witnesses was consistent and uncontroverted. The will appointed CKM as trustee and executor. The court held that the estate should be administered in accordance with the will, and the objection to the petition was meritorious. Consequently, the grant of probate with will annexed was issued to CKM to effect the terms of the will.
Court Disposition
Objection allowed. Grant of probate with will annexed issued to CKM.
Orders
- The objection is allowed.
- Grant of probate with will annexed is issued to CKM as executor.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESION CAUSE NO. 361 OF 2011
IN THE MATTER OF THE ESTATE OF DN (DECEASED)
JMK...................................................1ST PETITIONER
JMM..................................................2ND PETITIONER
- VERSUS -
GKM.............................................................OBJECTOR
HMM...................................1ST INTERESTED PARTY
WM.....................................2ND INTERESTED PARTY
CKM...................................3RD INTERESTED PARTY
R U L I N G
1. This is a ruling on the Objection dated 20th February, 2012 filled pursuant to the order made on 7th February, 2012. The grounds upon which the objection was brought were that; the petitioner had not sought the consent of the objector or any other person prior to filing this petition; that the petitioner had long separated with the deceased and did not care about the wellbeing of the deceased.
2. It was further contended that the deceased left a will in which he did not recognize the petitioner. Together with the objection, the objector filed a Petition by way of cross-application and Answer to Petition. She contended that the deceased left her and a daughter by the name BM surviving her. She prayed that she be appointed as administrator of the estate of the deceased being the deceased’s mother.
3. The objection was heard by way of viva voce evidence. OW1 GKM told the court that the petitioner was not married to her daughter and he never paid any dowry. The deceased had one child BM who is her grandchild. She testified that she was a dependent to the deceased as she was living with and helped her during her illness.
4. OW2 WMM was a brother in law to the deceased. He told the court that the deceased lived alone with her child. He knew the petitioner as he was married to the deceased but they had separated for over 5 years before her demise. He supported the objection of his mother in law because she was living with the deceased before her demise.
5. OW2produced a will that was left by the petitioner and he sought that it be executed. He was present when it was made by the deceased and he had attested it as had other witnesses.
6. The petitioner did not file any document in opposition to the objection and did not attend the trial. Having considered the record and the testimonies of the witnesses, the only issue for determination is whether the objection should be upheld.
7. One of the grounds upon which the objection was brought was that the deceased left a Will in which he did not recognize the petitioner. OW2appeared and testified that the deceased made a will before she died. That she made and signed the Will in the presence of her brothers and sister as well as himself. They all signed the said Will. He produced the Will as OExh.1.
8. I have looked at and examined the said Will. It bears what is said to be the signature of the testator, the deceased in this case. It has four signatures of people said to have been present when it was made and who witnessed the testator execute the same. One of them appeared and testified as OW2.
9. It should be recalled that when the objection was filed and a copy of the Will exhibited and served upon the petitioner, he never filed any response thereto. The testimony of OW2was consistent and was not controverted. I make a finding that the deceased died testate and her estate should be inherited as per the Will. In the Will, there is an indication that the deceased had appointed her brother CKMas the ‘Trustee’ and therefore the executor of the Will.
10. Accordingly, this court finds the objection to be meritorious and is allowed. The grant of Probate with a Will annexed is hereby issued to CKM.He is to effect the Will as follows: -
a) L. R. No. Nkuene/Mikumbune/[Particulars withheld]
- Half share to CKM to hold in trust for BM
b) Motor Vehicle Reg No. [Particulars withheld]
- GKM
11. I will make no orders as to costs.
SIGNEDat Meru me: -
A. MABEYA
JUDGE
DATED andDELIVEREDthis 6th day of December, 2018.
F. GIKONYO
JUDGE