[2016] KEHC 747 (KLR)
The court found that the deceased had executed a valid written will on 25th February 2004, as attested by the applicant and four supporting witnesses. The protestor did not testify or present evidence to challenge the existence or validity of the written will. Consequently, the applicant's case was uncontroverted....
Source-derived case information.
- Citation
- [2016] KEHC 747 (KLR)
- Parties
- Applicant: Richard Mwaniki Thuku; Respondent: Stanley Maina Thuku
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 543 of 2006
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- grant confirmed; estate to be distributed per written will; cause transferred to Murang'a High Court
- Judges
- DN Musyoka, REA Ougo
- Legal Topics
- Probate and Administration, Confirmation of Grant, Validity of Will
- 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
Richard Mwaniki Thuku
Applicant
Stanley Maina Thuku
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the deceased left a valid written will executed on 25th February 2004.
- 2 Whether the grant of probate should be confirmed in accordance with the written will.
- 3 Whether the protestor's claim of an oral will and exclusion of family members has merit.
Ratio Decidendi
The court found that the deceased had executed a valid written will on 25th February 2004, as attested by the applicant and four supporting witnesses. The protestor did not testify or present evidence to challenge the existence or validity of the written will. Consequently, the applicant's case was uncontroverted. The court therefore confirmed the grant of probate in accordance with the written will and ordered the estate to be distributed as per its terms.
Court Disposition
grant confirmed; estate to be distributed per written will; cause transferred to Murang'a High Court
Orders
- The grant of probate of written will made on 16th June 2006 is confirmed.
- The estate of the deceased shall be distributed according to the terms of the will executed on 25th February 2004.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 543 OF 2006
IN THE MATTER OF THE ESTATE OF GITHAIGA THUKU alias THUKU GITHAIGA alias LIVINGSTONE THUKU (DECEASED)
JUDGMENT
1. The application for determination is the summons for confirmation of grant dated 26th September 2007. It is brought at the instance of Richard Mwaniki Thuku, the executor of the will of the deceased made on 25th February 2004. He seeks that the grant be confirmed as per the said will. His affidavit in support of the application was sworn on 26th September 2007.
2. An affidavit of protest was lodged in the cause on 25th January 2008, sworn on 19th January 2008, by Stanley Maina Thuku. He stated that the executor had excluded some family members, and asserted that the deceased had in fact made not a written will but an oral one.
3. Several individuals swore affidavits in response to the averments made by the protestor in his affidavit. They all asserted that the deceased had indeed executed a written will on 25th February 2004.
4. That prompted the protestor to file a further affidavit in protest on 21st November 2008, which was filed herein on the same date, in which he pours cold water on the contents of the affidavits sworn in reply to his protest.
5. It was directed on 24th November 2008 that the application would be disposed of by way of cross-examination of the deponents of the various affidavits on record.
6. The hearing herein commenced on 4th February 2015. The executor/applicant testified, and breathed life to his affidavit in support of the application. He also called four (4) other individuals who had sworn the affidavits in reply to the protestor’s affidavit of protest. The protestor did not testify nor call any witnesses to breathe life to the averments in his affidavits.
7. As the protestor did not testify the executor’s case was not controverted. I have therefore no basis whatsoever for not granting the orders sought in the application dated 26th September 2007
8. The final orders shall be that the grant of probate of written will made herein on 16th June 2006 is hereby confirmed. The estate of the deceased shall be distributed according to the terms of his will executed on 25th February 2004.
9. As the estate comprises of assets situated mainly in Murang’a and Thika, it is hereby directed that the cause herein be transferred to the High Court of Kenya at Murang’a for disposal.
DATED and SIGNED at NAIROBI this 16TH DAY OF DECEMBER, 2016.
W. MUSYOKA
JUDGE
DELIVERED and SIGNED this 20TH DAY OF DECEMBER, 2016.
R. OUGO
JUDGE