[2009] KEHC 3162 (KLR)
The court found that the application for confirmation of grant was fatally defective because the six surviving daughters of the deceased were not mentioned as survivors in the petition. The Law of Succession Act and the Probate and Administration Rules require full disclosure of all beneficiaries to ensure fair...
Source-derived case information.
- Citation
- [2009] KEHC 3162 (KLR)
- Parties
- Applicant: Moses C.A. Terer; Applicant: Kennedy Chepkwny
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 365 of 2007
- Procedural Posture
- Probate Application / Ruling on Confirmation of Grant
- Outcome
- application for confirmation of grant rejected
- Legal Topics
- Succession, Confirmation of Grant, Intestate Estate, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses C.A. Terer
Applicant
Kennedy Chepkwny
Applicant
Procedural Posture
Probate Application / Ruling on Confirmation of Grant
Legal Issues
- 1 Whether the application for confirmation of grant can be allowed where all beneficiaries, specifically the surviving daughters, were not disclosed in the petition.
- 2 Whether the omission of the six surviving daughters from the list of survivors invalidates the application for confirmation of grant.
Ratio Decidendi
The court found that the application for confirmation of grant was fatally defective because the six surviving daughters of the deceased were not mentioned as survivors in the petition. The Law of Succession Act and the Probate and Administration Rules require full disclosure of all beneficiaries to ensure fair distribution of the estate. The omission of the daughters meant that not all persons entitled to a share of the estate were considered, and thus the application could not be allowed. The applicants were directed to refile the necessary forms, ensuring all survivors are included, and the costs were ordered to be borne by the estate.
Court Disposition
application for confirmation of grant rejected
Orders
- Application for confirmation of grant is rejected.
- Applicants to refile form P&A 5 afresh.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
IN THE MATTER OF THE ESTATE OF
MARTHA CHEPNGENO KETER ………………......…………..DECEASED
VERSUS
MOSES C.A. TERER …….………………………………} 1ST PETITIONER
KENNEDY CHEPKWONY ……...………………………..}2ND PETITIONER
RULING
Confirmation of grant of probate
1. Application to confirm grant of probate of letters intestate dated 14th October, 2008.
2. The deceased, a female adult aged 85 years old on 30th April, 2007 passed away due to cardiopulmonary arrest due to CVA due to cerebral embolism due to hypertension.
3. She was survived with three (3) sons whose ages were unknown. It was later when it transpired the three (3) sons had other siblings all sisters; possible six in number.
4. The temporary grant of letters was issued on 18th September, 2008 (G.B.M Kariuki) and Kenya Gezette dated 6th December, 2007.
II: Application to confirm grant had asset of land parcel 108/LRKericho/Sosiot/534
5. There was moneys in two bank accounts.
6. Application to confirm the grant was sought.
III: Findings
7. I reject this application for confirmation of grant on grounds the six surviving daughters were never mentioned in the petition. They require to be mention as survivors.
8. Accordingly the application is rejected. The applicants to re file form P&A 5 a fresh. P&A 57 to be signed and sealed and registered. The costs be in the estate.
DATEDthis 16th day of June, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
D.O.Akinyi Advocate instructed by M/S. Akinyi & Co. Advocates for the Petitioners/Applicants-present