[2019] KEHC 10299 (KLR)
The court found that the objector failed to prove any breach of section 76 of the Law of Succession Act. The evidence showed that other family members, including the objector's brother, were involved in the succession process and acknowledged the petitioner as a legitimate family member entitled to petition for the...
Source-derived case information.
- Citation
- [2019] KEHC 10299 (KLR)
- Parties
- Applicant: Stephen Obande Obande; Respondent: Jackson Barasa
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 45 of 2019
- Procedural Posture
- Probate and Administration / Ruling on Application for Revocation of Grant
- Outcome
- Application for revocation of grant dismissed.
- Judges
- KW Kiarie
- Legal Topics
- Succession Proceedings, Revocation of Grant, Probate and Administration, Family Membership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Obande Obande
Applicant
Jackson Barasa
Respondent
Procedural Posture
Probate and Administration / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of representation was obtained fraudulently or in breach of section 76 of the Law of Succession Act.
- 2 Whether the petitioner failed to involve other family members in the succession process.
- 3 Whether the petitioner is related to the deceased and entitled to petition for the grant.
Ratio Decidendi
The court found that the objector failed to prove any breach of section 76 of the Law of Succession Act. The evidence showed that other family members, including the objector's brother, were involved in the succession process and acknowledged the petitioner as a legitimate family member entitled to petition for the grant. There was no evidence of fraud, concealment, or procedural defect in obtaining the grant. The application for revocation of the grant was therefore without merit. The court exercised its discretion to order the petitioner to move for confirmation of the grant within 30 days, failing which the grant would be revoked without further reference to the parties.
Court Disposition
Application for revocation of grant dismissed.
Orders
- Petitioner to move the court within 30 days for confirmation of the grant, failing which the grant will be revoked without reverting to the parties.
- Costs of the application awarded to the petitioner.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
PROBATE & ADMINSTRATION NO. 45 OF 2011
IN THE ESTATE OF MARIKO OJIAMBO ODUKI.........DECEASED
BETWEEN
STEPHEN OBANDE OBANDE........................................PETITIONER
AND
JACKSON BARASA...........................................................OBJECTOR
RULING
1. Jackson Barasa, the applicant/objector herein filed an application dated 13th September 2016 for revocation of the grant issued herein under section 76 of the Law of Succession Act, Cap. 160 and Rule and 73 of the Probate and Administration Rules. It is premised on the following grounds:
a) That the petitioner filed the petition without their knowledge and filed a fake consent.
b) That the petitioner is not related to the deceased.
c) That the petitioner/respondent included him in the succession without consulting him.
2. The application was opposed by the petitioner/respondent.
3. I have perused the affidavits of both parties on the record. The following facts have emerged:
a) That contrary to the contention by the objector that the petitioner moved secretly without involving other family members, the facts are that they were involved.
b) That other family members including the brother of the objector have acknowledged the petitioner as one of the family members with a right to petition for the grant.
4. Section 76 of the Law of succession provides inter alia as follows:
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a) that the proceedings to obtain the grant were defective in substance;
(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
5. The objector has not proved that this section was breached.
6. Rule 73 of Probate and Administration Rules is on inherent powers of the court. It provides:
Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
7. I therefore find that the application lacks merit. The petitioner is ordered to move the court within 30 days for confirmation of the grant failure to do so, the grant will be revoked without reverting to the parties.
8. The costs of this application to the petitioner.
DELIVEREDandSIGNEDatBUSIA this 30thdayof January, 2019
KIARIE WAWERU KIARIE
JUDGE