[2016] KEHC 2684 (KLR)
The court found that the proceedings had proceeded on an incorrect basis after the discovery of a valid will. The will was authenticated by both the advocate who prepared it and a witness, and was not contested by any family member. As such, the prior grant of letters of administration intestate was revoked. The...
Source-derived case information.
- Citation
- [2016] KEHC 2684 (KLR)
- Parties
- Applicant: Concilata Awala Akoth; Applicant: Mary Atieno Akoth; Applicant: Consilata Akinyi Akoth; Respondent: Gerphas Odhiambo Abongo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 179 of 2009
- Procedural Posture
- Succession Cause / Ruling on Revocation and Grant of Probate
- Outcome
- Grant of letters of administration intestate revoked; grant of probate and letters of administration issued to executor.
- Judges
- DAS Majanja
- Legal Topics
- Probate and Administration, Wills, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Concilata Awala Akoth
Applicant
Mary Atieno Akoth
Applicant
Consilata Akinyi Akoth
Applicant
Gerphas Odhiambo Abongo
Respondent
Procedural Posture
Succession Cause / Ruling on Revocation and Grant of Probate
Legal Issues
- 1 Whether the grant of letters of administration intestate should be revoked in light of the existence of a valid will.
- 2 Whether probate should be issued to the executor named in the will.
- 3 How to address properties not covered by the will.
Ratio Decidendi
The court found that the proceedings had proceeded on an incorrect basis after the discovery of a valid will. The will was authenticated by both the advocate who prepared it and a witness, and was not contested by any family member. As such, the prior grant of letters of administration intestate was revoked. The court appointed Gerphas Odhiambo Abongo, the executor named in the will, as the executor and issued a grant of probate. Additionally, since there were properties not covered by the will, the court also issued a grant of letters of administration to the same executor for those properties. The executor/administrator was directed to apply for confirmation within 30 days, ensuring...
Court Disposition
Grant of letters of administration intestate revoked; grant of probate and letters of administration issued to executor.
Orders
- The grant issued to Concilata Awala Akoth, Consilata Akinyi Akoth and Mary Atieno Akoth is revoked forthwith.
- A grant of probate for the deceased’s will dated 13th February 1997 is issued to Gerphas Odhiambo Abongo as executor.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
SUCCESSION CAUSE NO. 179 OF 2009
IN THE MATTER OF THE ESTATE OFJAMES AKOTH NDONGA (DECEASED)
AND IN THE MATTER OF
AND APPLICATION BY
CONCILATA AKINYI AKOTH
MARY ATIENO AKOTH
CONSOLATA AKINYI AKOTH
RULING
1. JAMES AKOTH NDONGA died on 31st May 2008. He left behind three widows, Concilata Awar Akoth, Mary Atieno Akoth and Consilata Akinyi Akoth. They all applied for grant of letters of administration intestate and the same was issued on 22nd May 2009 to the three widows.
2. Unfortunately, the estate was wrought with disputes when the summons for confirmation dated 16th October 2016 was filed. During the hearing it emerged the deceased had prepared a will. The will was produced in court. I directed that the advocate who prepared the will, Mr. Moses Orengo and the witness, Gerphas Odhiambo, do appear in court to confirm its authenticity.
3. Both Mr Orengo and Mr Odhiambo attended court and confirmed that the will is the true and correct will the deceased prepared. All the family members did not contest the will. The dispute appeared to arise from the distribution of properties that were not part of the will or which the deceased had disposed after preparing the will.
4. Accordingly, it is apparent that these proceedings have been moving on a wrong track. As Gerphas Odhiambo is one of the executors appointed by the will and is prepared to act, I will appoint him.
5. As this matter has been in court since 2009 and in order to bring about its resolution, I order as follows:
(1) The grant issued to Concilata Awala Akoth, Consilata Akinyi Akoth and Mary Atieno Akoth is hereby revoked forthwith.
(2) A grant of probate for the deceased’s will dated 13th February 1997 is hereby issued to GERPHAS ODHIAMBO ABONGO who is now appointed the executor.
(3) As there appear to be other properties of the deceased outside the will, a grant of letters of administration is also issued to the said GERPHAS ODHIAMBO ABONGO.
(4) The executor/administrator shall apply for confirmation within 30 days.
(5) Mention on 5th December 2016 for directions.
DATED and DELIVERED at KISUMU this 5th day of October 2016
D. S. MAJANJA
JUDGE