[2014] KEHC 2203 (KLR)
The court found that there was no contempt or breach of court orders by the respondent, as the directions given on 31st October, 2013, did not require the deposit of the original will. The court accepted that a photocopy of the will was sufficient for the purposes of the summons for revocation, provided the original...
Source-derived case information.
- Citation
- [2014] KEHC 2203 (KLR)
- Parties
- Applicant: Jeanine Natalie Bohligne Oser; Applicant: Ronny Patric Herbert Oser; Respondent: Mahila Josphat Said
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 28 of 2013
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- JV Juma
- Legal Topics
- Revocation of Grant, Probate Procedure, Admissibility of Wills
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeanine Natalie Bohligne Oser
Applicant
Ronny Patric Herbert Oser
Applicant
Mahila Josphat Said
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether failure to deposit the original will in the court registry is fatal to a summons for revocation of grant.
- 2 Whether the applicant is in contempt of court orders for not depositing the original will.
- 3 Whether the preliminary objection raises valid grounds to strike out the summons for revocation.
Ratio Decidendi
The court found that there was no contempt or breach of court orders by the respondent, as the directions given on 31st October, 2013, did not require the deposit of the original will. The court accepted that a photocopy of the will was sufficient for the purposes of the summons for revocation, provided the original would be produced at the hearing. The preliminary objection was therefore dismissed as lacking merit, and the failure to deposit the original will was not fatal to the respondent's application. The court awarded costs of the objection to the respondent.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the applicant Mahila Josphat Said.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE HIGH COURT OF KENYA
AT MOMBASA
SUCCESSION CAUSE NO. 28 OF 2013
IN THE MATTER OF THE ESTATE OF GUNHILD GERLINDE OSER (DECEASED)
RULING
Before court is a Preliminary Objection dated 7th May, 2014 and filed in court on the same date. In it the petitioners JEANINE NATALIE BOHLIGNE OSTER and RONNY PATRIL HERBERT OSER seek the striking out of the summons for revocation of grant filed by the applicant MAHILA JOSPHAT SAID on the following grounds
“1. THAT in the summons for revocation of annulment of grant under Rule 44 (1) of the Probate and Succession Rules, the applicant MAHILA JOSPHAT SAID (“the Applicant”) seeks orders from the Honourable court that he be granted probate ….. as per the will of the deceased……..
Yet the applicant has not deposited the purported original will with the Honourable court pursuant to section 51 (3) of the Law of Succession Act (Cap 160 Laws of Kenya) and also in contempt of a previous direction to do so issued by the Honourable court on 31st October, 2013 and he is in disobedience of court orders, he has no right of audience until he purges his contempt.
2. THAT in view of the foregoing this summons is vexatious and an abuse of the court process; and
3. THAT the summons is therefore fatally flawed and should be dismissed/struck out with costs.”
The estate in issue in this Succession Cause is that of GUNHILD GERLINDE OSER (the deceased) who was a 57 year old German woman who passed away on 20th January, 2013 at the Pandya Hospital. At the time of her death she was domiciled in Kenya and lived at Bamburi within Mombasa County. The deceased was survived by her two children a daughter ‘Jeanine Natalie Bohlignee Oser’ and a son ‘Ronny Patric Herbert Oser’. She had divorced her husband ‘Herbert Wilfred Gunter Oser’ on 24th March, 1998. Assets left by the deceased included 200 shares in a company Hanos Kenya Limited (her two children held 50 shares each in the same company) which company owned a business Papillon Garden Bar Villa. On 6th February, 2013 the two children of the deceased filed a petition for letters of administration to her estate. There being no objection a Grant of Letters of Administration was made to the two on 13th August, 2013.
On 8th October, 2013 the applicant ‘Mahila Josphat Said’ filed a summons to revoke/annul the Grant issued to the deceased’s two children. He claimed in his supporting affidavit dated 25th September, 2013 that he had lived as man and wife with the deceased in Bamburi. He further claimed that the deceased had not in fact died intestate as alleged since after her death a written will had been recovered in a safe on the business premises. It is this summons for revocation that the petitioners now seek to have struck out by way of this preliminary objection. The preliminary objection was heard by way of written submissions. MR. KENZI Advocate appeared for the applicant whilst MR. ASIGE acted for the two petitioners.
I have perused and have given due consideration to the submissions filed by counsel. I have perused the summons for revocation of Grant filed on 8th October, 2013. I note that although the original copy of the alleged will has not been annexed, indeed a photocopy of the same has been so annexed. It is claimed that on 31st October, 2013 this court directed that the applicant deposit the original will in the registry. This is not correct. The proceedings of 31st October, 2013 in this file are clear. The directions given by the court were as follows
“Court
The directions of court is that this matter be heard by way of vive voce evidence. Hearing dates to be taken in the registry.”
No mention was made at all of a will. In any event I am in agreement with Mr. Kenzi that it is an unfortunate fact of some notoriety that in some cases original documents do tend to disappear from the court registries. As such a copy will suffice subject to the original document being availed in court on hearing date. I find there is no contempt and/or breach of court orders by this applicant. Failure to deposit the original will in the registry is not fatal to the summons for revocation. I therefore dismiss this preliminary objection with costs to the applicant Mahila Josphat Said.
Dated and delivered in Mombasa this 24th day of September, 2014.
M. ODERO
JUDGE
In the presence of:
Mr. Asige for Objector
Court Clerk Mutisya