[2023] KEHC 27184 (KLR)

In re Estate of Mridulla Kishor Makwana (Deceased) (Succession Cause E256 of 2023) [2023] KEHC 27184 (KLR) (Family) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27184 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E256 of 2023

PM Nyaundi, J

December 1, 2023

Ruling

1. The application for determination is Chamber Summons dated June 20, 2023 presented under section 3A &95 of the Civil Procedure Act Cap 21, section 67 of the Law of Succession Act, rule 17(2) of the Probate and Administration Rulesseeking the following orders1. Spent2. Spent3. That the Honourable Court be pleased to expand and/ or extend the time within which to file the objection herein.4. That the Objection dated 8th May 2023 be deemed as dully (sic) and properly filed and the Honourable Courts direction dated 9th May 2023 be vacated.5. That the costs of this Application be provided for

2. The Application is supported by the Affidavit of Ushaben Mayurdhwaj Makwana sworn on 5th June 2023. The Application is opposed and Deepak Baboo Kanji Makwana one of the Executors who has sworn an affidavit in opposition dated 16th October 2023.

3. The Court directed that the Application be canvassed through written submissions and both parties complied. The submissions of the Applicant are dated 29th September 2023 while those of the Respondent are dated 25th October 2023.

4. This is an Application seeking to extend time within which to file an Objection. The Grant of Probate was issued on 10th May 2023 to Deppak Baboo Kanji Makwana. The pertinent question therefore is whether the Application as presented is competent.

5. Section 68 provides;Objections to Application1. Notice of any objection to an application for a grant of representation shall be lodged with the Court, in such format as may be prescribed2. within the period specified by such notice as aforesaid, or such longer period as the court may allow3. Where notice of objection has been lodged under sub -section 1, the court shall give notice to the objector to file an answer to the application and a cross- petition application within a specified period (Emphasis Supplied)

6. Rule 17(1) of the probate and administration rulesprovides1. Any person who has not applied for a grant to the estate of a deceased and wishes to object to the making of a grant which has already been applied for by another person may do so by lodging within the period specified in the notice of the application published under rule 7(4), or such longer period as the court may allow, either in the registry in which thepending application has been made or in the principal registry, an objection in Form 76 or in triplicate stating his full name and address for service, his relationship (if any) to the deceased and the grounds of his objection. (Emphasis supplied)

7. It is evident therefore that the procedure of lodging and processing an objection is clearly set out in section 68 of the Law of Succession Act and rule 17 of the Probate and Administration rules.

8. As noted in paragraph 7 above the grant herein issued on the 1st September 2021. The question I pose is whether a person can file an objection after the Grant has issued as that will determine whether or not I should proceed to extend time to file the Objection

9. This same question was posed by Hon Justice J.A Makau in re estate of Agnes Ogolas Akoth (Deceased) [2016] eKLR, in which he observed(14)In the instant case the objection was filed when grant had already been made. The delay in filing of the objection of 4 years is inordinate and unexplainable. The objector is objecting to the making of the grant after it has already been made and I find that the objection has already been overtaken by events. The court cannot stop what has already passed. The law of Succession is crafted in such a manner that the obtaining of the grant is not an end to aggrieved party’s rights. One can challenge the grant by seeking its revocation or annulment or even file a protest to the mode of distribution.

10. I agree wholly with the reasoning. A plain reading of the relevant provisions cited above reveals that an Objection is filed to challenge the Petition or Application for grant. The Court cannot consider an objection ‘to the making of a grant’ after the grant has been made.

11. As pointed out in the referenced decision the avenues available to the Applicants at this stage would be to apply for revocation or annulment of the grant or file a protest to the mode of distribution.

12. On account of the foregoing I find that the Application before Court is incompetent and there is no utility in granting the extension of time within which to file an objection. It is therefore dismissed.

13. Each party will bear their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER, 2023. P. NYAUNDIJUDGE