[2011] KEHC 3267 (KLR)
The court found that Kezia's affidavits, lacking annexures or corroborative material, were insufficient to establish her status as the deceased's widow. The chief's letter, which forms part of the petition, did not mention Kezia or her children, further weakening her claim. Given the seriousness of the claim and the...
Source-derived case information.
- Citation
- [2011] KEHC 3267 (KLR)
- Parties
- Applicant: Jane Wangui Nderi; Applicant: Herman Murithi Nderi; Respondent: Kezia
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 169 of 2003
- Procedural Posture
- Succession Cause / Ruling on Mode of Hearing for Confirmation of Grant Application
- Outcome
- Application for confirmation of grant to proceed by viva voce evidence; affidavit evidence insufficient to determine protestor's status.
- Judges
- MA Warsame
- Legal Topics
- Succession, Proof of Marriage, Confirmation of Grant, Affidavit Evidence, Viva Voce Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wangui Nderi
Applicant
Herman Murithi Nderi
Applicant
Kezia
Respondent
Procedural Posture
Succession Cause / Ruling on Mode of Hearing for Confirmation of Grant Application
Legal Issues
- 1 Whether the protestor, Kezia, has provided sufficient evidence to prove her status as the widow of the deceased for purposes of inheritance.
- 2 Whether the application for confirmation of grant can be determined solely on affidavit evidence.
Ratio Decidendi
The court found that Kezia's affidavits, lacking annexures or corroborative material, were insufficient to establish her status as the deceased's widow. The chief's letter, which forms part of the petition, did not mention Kezia or her children, further weakening her claim. Given the seriousness of the claim and the lack of legal representation for both parties, the court held that the matter could not be conclusively determined on affidavit evidence alone. In the interest of justice, the court directed that the dispute proceed by way of viva voce (oral) evidence to allow for proper examination and determination of Kezia's alleged marital status and entitlement to the estate.
Court Disposition
Application for confirmation of grant to proceed by viva voce evidence; affidavit evidence insufficient to determine protestor's status.
Orders
- The matter shall proceed by way of viva voce evidence.
- If the protestor wishes to proceed by affidavit evidence after this ruling, she may do so at her own discretion.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
SUCCESSION CAUSE NO. 169 OF 2003
IN THE MATTER OF THE ESTATE OF FRED GEORGE NDERI NGUU....................DECEASED
AND
JANE WANGUI NDERI........................................................................................1ST PETITIONER
HERMAN MURITHI NDERI...................................................................................2ND PETITIONER
R U L I N G
I have read carefully the contents of the entire file. The parties herein did on 14. 10. 2010 inform this court that they wished to proceed by way of affidavit evidence. I do respect their wish but I am inclined to believe that those directions were sought in ignorance. I say so because after reading the affidavits for and against the application for confirmation of grant, it is clear that the protestor is claiming to be the deceased’s widow. Her affidavit does not have any annexures or other sufficient material to support her claim of marriage to the deceased. It is just an assertion she has made in her affidavit. That in my view is not sufficient evidence for her to prove her marital status or relationship to the deceased.
My considered view and in the interest of justice, I find that this is not a matter that can be properly and conclusively determined by way of affidavit evidence. I appreciate that both parties herein are unrepresented by counsel and they may not therefore have understood clearly the purport of proceeding by way of Affidavit evidence.
Kezia (protester) claims to be the widow to the deceased. He/she who asserts must prove. It is incumbent upon her therefore to prove her status or interest in the deceased’s estate. I have noticed that the letter from the chief filed with the petition does not mention her or her children. She therefore has the onerous duty of proving before this court that she was indeed a wife to the deceased. Her 2 affidavits do not suffice to do so.
I therefore direct that this matter proceeds by way of viva voce evidence. If after this ruling is delivered Kezia still wishes to proceed by way of affidavit evidence, then the court cannot force her to do otherwise. I trust that this ruling will leave her better informed to enable her decide on how she wishes to proceed.
W.KARANJA
JUDGE
Signed by the above but delivered and dated by the undersigned at Embu this 17th day of March, 2011.
M. WARSAME
JUDGE