[2008] KEHC 148 (KLR)
The court found that the validity of the written will was not in question and that the will expressly provided for the appointment of a new executor by the descendants of Eunice Njeri Gathura upon her death. Since James Gichuki Gathura had been appointed by those descendants, the court held that he was the...
Source-derived case information.
- Citation
- [2008] KEHC 148 (KLR)
- Parties
- Applicant: Eunice Njeri Gathura; Respondent: Margaret Wangechi Gathura; Respondent: James Gichuki Gathura
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 299 of 1999
- Procedural Posture
- Probate Application / Judgment
- Outcome
- grant revoked and new grant issued
- Judges
- MM Kasango
- Legal Topics
- Probate of Will, Revocation of Grant, Appointment of Executor
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Eunice Njeri Gathura
Applicant
Margaret Wangechi Gathura
Respondent
James Gichuki Gathura
Respondent
Procedural Posture
Probate Application / Judgment
Legal Issues
- 1 Whether the grant of probate issued to Eunice Njeri Gathura should be revoked following her death.
- 2 Who is the appropriate person to be appointed as executor of the deceased's estate after the death of the original executor.
Ratio Decidendi
The court found that the validity of the written will was not in question and that the will expressly provided for the appointment of a new executor by the descendants of Eunice Njeri Gathura upon her death. Since James Gichuki Gathura had been appointed by those descendants, the court held that he was the appropriate person to be issued with the grant of probate. The grant previously issued to Eunice Njeri Gathura was therefore revoked as it had become useless and inoperative following her death. The court declined to make any order as to costs.
Court Disposition
grant revoked and new grant issued
Orders
- The grant dated 3rd February 2000 issued to Eunice Njeri Gathura is revoked.
- A Grant of Probate of Written Will is to be issued to James Gichuki Gathura.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE MATTER OF THE ESTATE OF GIDRAFF GATHURA GATHIGI - DECEASED
EUNICE NJERI GATHURA ……….……..…PETITIONER/DECEASED
Versus
MARGARET WANGECHI GATHURA …………………….. OBJECTOR
JUDGMENT
Eunice Njeri Gathura now deceased petitioned for grant of probate of written will of Jidraff Gathura Githigi deceased. The court record shows that Margaret Wangechi Gathura cross-petitioned but there is no record that her cross petition was heard. Eunice was issued with a grant on 3rd February 2000. She died on 20th May 2006. Margaret has now filed summons dated 5th June 2007 which is the subject of this judgment. By that summons she seeks that the grant issued to Eunice be revoked because it had become useless and inoperative following her death. She deponed in her affidavit that it had been more than a year since the death of Eunice and as a consequence the grant is now useless. Margaret described herself as the widow of the deceased and therefore was of the view that she is the appropriate person to be appointed as administrix. The application was opposed by James Gichuki Gathura. In the replying affidavit he stated that the deceased left a written will and that according to clause No. 2 of that will it was provided that on the death of Eunice who was the named executor of the will the executor was to be appointed by the descendants of Eunice. The respondent stated that the said descendants had appointed him to be the executor. When the matter came before court it was ordered to be heard by way of affidavit evidence. The applicants counsel argued that James Gichuki was not a party in this action. That argument however is a non starter because he had stated in which capacity he appears in this matter. He is after all a beneficiary of the deceased estate and he is therefore entitled to participate in the matter. It is clear that Eunice petitioned for grant of probate of written will. In the present application by Margaret the validity of that will is not questioned at all. Accordingly the court in reaching a decision to whom the grant should be issued will be guided by that will. The deceased in his will provided if Eunice died her descendant would appoint the next executor. James Gichuhi has been appointed by the descendants of Eunice. That being so the judgment of this court is:-
1. That the grant herein dated 3rd February 2000 issued to Eunice Njeri Gathura is hereby revoked.
2. The court orders that a Grant of Probate of Written Will be issued to James Gichuki Gathura.
3. There shall be no orders as to costs in respect of summons dated 5th June 2007.
Dated and delivered this 27th day of January 2009.
MARY KASANGO
JUDGE