[2014] KEHC 7297 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 838 OF 2012

IN THE MATTER OF THE ESTATE OF GRACE WAITHIRA RAGUI – (DECEASED)

RULING

1. This cause relates to the estate of Grace Waithira Ragui. She died on 15th January 2012 at the age of 88 years.

2. Representation to her estate was sought on 26th April 2012 by Koigi wa Wamwere, the person named in the will of the deceased made on 11th January 2012 as executor.

3. According to the affidavit sworn by the petitioner on 20th April 2012 to support the application, the deceased died possessed of three properties, being Dagoretti/Uthiru/146, LR 44 Uthiru Market and Dagoretti/Kangemi/5.

4. The said affidavit does not list the survivors of the deceased, but there is a letter on record from the office of the Provincial Commissioner dated 1st March 2012 which lists the survivors as follows:-

(1) Mary Waboro Auma

(2) Emily Wairimu Ngugi

(3) Freshiah Wangari Ragoi Daughters

(4) Nelly Wanjiku Kuria

(5) Jane Nduta Koigi

(6) Edwin Muchene Sons

(7) Lincoln Kimwaki

(8) Pauline Nduta Daughters

(9) Rachel Wambui

(10) Margaret Wanjiru Daughter in law

(11) Kelvin Hiuhu

(12) Simon Muchene Grandchildren

(13) George Ragui

5. The original will, together with copies thereof, was also lodged in court. The said will was drawn by the firm of Gitau J.H. Mwara Company Advocates and was executed on 11th January 2012 before Gitau J.H. Mwara, Advocate, who also acted as the attesting witness alongside Teresia Ndene Mburu.

6. After the petition was gazetted on 14th September 2012, Lincoln Kimwaki Ragui filed a document in court on 15th October 2012 headed “Objection.” He alleged that the will on record was invalid to the extent that it purported to dispose of property that had not yet vested in the alleged testator.

7. The law on objections is Section 68and69 of the Law of Succession Act and Rule 17 of the Probate and Administration Rules. Section 68 provides:-

“68 (1) Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by the notice, or such longer period as the court may allow.

(2) Where notice of objection has been lodged under subsection (1) the court shall give notice to the objector to file an answer to the application and a cross-application within a specified period.”

“69 (1) Where a notice of objection has been

lodged under subsection (1) of Section 68, but no answer or cross-application has been filed as required under subsection (2) of that Section, a grant may be made in accordance with the original application.

(2) Where an answer and cross application have been filed under subsection (2) of Section 68, the court shall proceed to determine the dispute.”

8. Under Rule 17 of the Probate and Administration Rules, upon a notice of objection being filed in Form 76 or 77 the Deputy Registrar is required to forthwith cause a notice in Form 67 to be sent to the objector requiring him to file within a specified period of time an answer in Form 25 to the petition together with a petition by way of cross-application in Form 84, supported by affidavit for a grant to the estate of the deceased to be made to the objector.

9. What comprises an objection to a petition for grant of representation are the documents set out in Section 68and69 of the Law of Succession Act and Rule 17 of the Probate and Administration Rules – there must be a notice of objection, answer to the petition, a petition by way of cross-application and a verifying affidavit. These form the pleadings upon which objection proceedings are premised. Where such pleadings are not filed, then it cannot be said that the objector has a case that he can argue in objection to the petition of the petitioner.

10. The record before me shows that the petition herein was gazetted on 14th September 2012 vide Gazette Notice No. 12858 inviting objections within 30 days. I have carefully perused through the record. I have not come across a notice of objection in Form 76 or 77 as prescribed. I have not also encountered an answer to the petition in Form 25 nor a petition by way of cross-application in Form 84 with a supporting affidavit. Consequently, Sections 68 and 69 of the Act and Rule 17 of the Rules have not been complied with. There are no pleadings upon which objection proceedings can be deemed, and therefore the purported objector has no case to argue before me.

10. I have noted that the petition was gazetted on 14th September 2012. Objections ought to have been filed within 30 days. 30 days expired on 14th October 2012. The document purported to be an objection was lodged in court on 15th October 2012, a day after the 30 days stipulated in the notice had expired. Consequently, the purported objection was filed out of time and without leave of court.

11. I need not say more. The purported objection proceedings are incompetent as there is no objection on record.

12. That being the case, there is no impediment to the petition filed in court on 26th April 2012 being allowed. I hereby allow the same. Grant of probate to the written will of Grace Waithira Ragui shall issue upon the petitioner/executor Koigi wa Wamwere as prayed.

13. As this is a family matter, I will not award costs.

14. It is so ordered.

DATED, SIGNED and DELIVERED at NAIROBI this31st DAY OF January, 2014.

W. MUSYOKA

JUDGE