[2021] KEHC 705 (KLR)
The court determined that the serious allegations of forgery and fraud regarding the written Will cannot be resolved on the basis of affidavit evidence alone. The nature of the dispute necessitates the reception of viva voce evidence to allow for proper examination and cross-examination of witnesses. Accordingly,...
Source-derived case information.
- Citation
- [2021] KEHC 705 (KLR)
- Parties
- Applicant: Pius Machina Racho; Applicant: John Mwaura Racho; Applicant: Catherine Wanjiru Racho; Applicant: Ruth Nyambura Racho; Applicant: Lydia Ngina Thiong’o; Applicant: Mary Wanjiku Racho; Respondent: Moses Mureithi Racho
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 94 of 2018
- Procedural Posture
- Succession Cause / Interlocutory Ruling on Applications for Confirmation and Revocation of Grant
- Outcome
- No substantive orders on confirmation or revocation of grant; matter to proceed to viva voce hearing.
- Judges
- MM Kasango
- Legal Topics
- Probate and Administration, Will Forgery, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Machina Racho
Applicant
John Mwaura Racho
Applicant
Catherine Wanjiru Racho
Applicant
Ruth Nyambura Racho
Applicant
Lydia Ngina Thiong’o
Applicant
Mary Wanjiku Racho
Applicant
Moses Mureithi Racho
Respondent
Procedural Posture
Succession Cause / Interlocutory Ruling on Applications for Confirmation and Revocation of Grant
Legal Issues
- 1 Whether the written Will presented is a forgery and if the grant was obtained fraudulently.
- 2 Whether the application for revocation of grant can be determined on affidavit evidence alone.
Ratio Decidendi
The court determined that the serious allegations of forgery and fraud regarding the written Will cannot be resolved on the basis of affidavit evidence alone. The nature of the dispute necessitates the reception of viva voce evidence to allow for proper examination and cross-examination of witnesses. Accordingly, the court declined to issue a substantive ruling on the applications for confirmation and revocation of grant at this stage and directed that a date be fixed for hearing viva voce evidence.
Court Disposition
No substantive orders on confirmation or revocation of grant; matter to proceed to viva voce hearing.
Orders
- A date for receiving viva voce evidence to be fixed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
SUCCESSION CAUSE NO. 94 OF 2018
IN THE MATTER OF THE ESTATE OF HARUN RACHO KATHETHA Alias RACHO KATHETHA HARUN Alias RACHO KATHETHA HARUN Alias RACHO KATHETHA (DECEASED)
1. PIUS MACHINA RACHO
2. JOHN MWAURA RACHO
3. CATHERINE WANJIRU RACHO
4. RUTH NYAMBURA RACHO
5. LYDIA NGINA THIONG’O
6. MARY WANJIKU RACHO.........OBJECTORS/APPLICANTS
VERSUS
MOSES MUREITHI RACHO.....PETITIIONER/RESPONDENT
RULING
1. MOSES MUREITHI RACHO petitioned for grant of probate of written Will in this cause and the grant was issued dated 12th February, 2019.
2. Before court are two applications. One is dated 11th September, 2019 for confirmation of the grant. The other is dated 24th September, 2019 which seeks revocation of the grant.
3. The court on 27th November, 2019 ordered both applications be heard by affidavit evidence and by submissions. On receiving those affidavits and written submissions, I gave today’s date for Ruling. I have however formed the opinion that a substantive ruling cannot be issued in the absence of this Court receiving viva voce evidence. This is because the application for revocation of grant is sought on the ground that the written Will presented in this cause is forgery and that accordingly, the grant obtained was fraudulent. In this Court’s view, such allegation cannot be determined on affidavit evidence. It is essential for the court to receive vivo voce evidence.
4. In view of the above at the reading of this Ruling, a date for receiving the viva voce evidence will be fixed.
5. Orders accordingly.
RULING DATED AND DELIVERED AT KIAMBU THIS 2ND DAY OF DECEMBER, 2021
MARY KASANGO
JUDGE
Coram:
Court Assistant: Maurice
For Objectors : Ms. Namisi
For Petitioner : Mr. Gitau
COURT
Ruling delivered virtually.
MARY KASANGO
JUDGE