[2019] KEHC 7974 (KLR)
The court found that none of the grounds raised by the objector for revocation of the grant were proved. The objector failed to substantiate claims of fraud, concealment, or procedural defect. The court emphasized that the proper procedure for challenging the authenticity of the will was under section 70 of the Law...
Source-derived case information.
- Citation
- [2019] KEHC 7974 (KLR)
- Parties
- Applicant: Albert A. Ekirapa; Applicant: Humphrey Ekisai Ekirapa; Respondent: Jane Asami Ombaya
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 28 of 2015
- Procedural Posture
- Probate and Administration / Ruling on Summons for Revocation of Grant
- Outcome
- objection dismissed
- Judges
- KW Kiarie
- Legal Topics
- Revocation of Grant, Probate Procedure, Will Authenticity, Priority of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert A. Ekirapa
Applicant
Humphrey Ekisai Ekirapa
Applicant
Jane Asami Ombaya
Respondent
Procedural Posture
Probate and Administration / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of representation was obtained fraudulently or by concealment of material facts.
- 2 Whether the proceedings to obtain the grant were defective in substance.
- 3 Whether the objector, as widow, had priority over the petitioners in administration of the estate.
Ratio Decidendi
The court found that none of the grounds raised by the objector for revocation of the grant were proved. The objector failed to substantiate claims of fraud, concealment, or procedural defect. The court emphasized that the proper procedure for challenging the authenticity of the will was under section 70 of the Law of Succession Act, not by way of objection to the grant. Consequently, the objection was dismissed, but the court directed the parties to set a date within 30 days to interrogate the authenticity of the will if it remained in dispute.
Court Disposition
objection dismissed
Orders
- Objection to the grant is dismissed.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINISTRATION NO. 28 OF 2015
IN THE MATTER OF THE ESTATE OF:
JOHN RICHARD IMO EKIRAPA...............................DECEASED
BETWEEN
1. ALBERT A. EKIRAPA
2. HUMPHREY EKISAI EKIRAPA.......................PETITIONERS
AND
JANE ASAMI OMBAYA...............................................OBJECTOR
RULING
1. Jane Asami Ekirapa, the objector herein, filed summons for revocation of the grant dated 15th February 2016 under section 76 of the Law of Succession Act, Rules 44, 49 and 73 of the Probate and Administration Rules. The application was premised on the following grounds:
a) That the proceedings to obtain the grant were defective in substance.
b) That the grant was obtained fraudulently by making of false statements or by concealment from the court of something material to the case.
c) That the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently.
d) That the grant has become useless and inoperative through subsequent circumstances.
e) The objector’s consent to the applying of the grant was never sought or obtained by the petitioners.
f) That the petitioner is a widow of the deceased ranking in priority to the petitioners and was issued with a grant on 3rd June 215 before the one herein was issued.
2. The petitioners have opposed the application on the following grounds:
a) That they were appointed administrators through a will.
b) That both of them have no interest in the estate of their late brother.
3. Prior to the grant herein being issued, the petitioners exhibited a copy of the will which they claimed gave them authority to petition for the issuance of the grant. Instead of filing an objection, the objector ought to have moved the court under section 70 of the Law of Succession Act to test the authenticity of the will. The section provides:
Whether or not there is a dispute as to the grant, every court shall have power, before making a grant of representation—
(a) examine any applicant on oath or affirmation; or
(b) call for further evidence as to the due execution or contents of the will or some other will, the making of an oral will, the rights of dependants and of persons claiming interests on intestacy, or any other matter which appears to require further investigation before a grant is made; or
(c) issue a special, citation to any person appearing to have reason toobject to the application.
4. Upon my perusal of the affidavit of the applicant and that by the respondent, I find that none of the grounds raised by the objector has been proved. I am therefore directing that the parties herein to take a date within 30 days of this ruling for interrogating whether the will is authentic or not, if the same is being disputed.
5. The objection is dismissed. Each party to meet own costs.
DELIVEREDandSIGNEDatBUSIAthis30th dayof April, 2019
KIARIE WAWERU KIARIE
JUDGE