[2023] KEHC 21671 (KLR)
The court found that the absence of an application for confirmation of grant, as required by Section 71 of the Law of Succession Act, constituted a procedural defect that precluded the delivery of judgment. The objector's failure to prosecute the objection did not cure this defect. The court directed the petitioner...
Source-derived case information.
- Citation
- [2023] KEHC 21671 (KLR)
- Parties
- Applicant: Winnie Kamene Peter; Respondent: Rossini Omar
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 44 of 2015
- Procedural Posture
- Succession Cause / Directions Before Judgment
- Outcome
- Directions issued; matter not ready for judgment.
- Judges
- SM Githinji
- Legal Topics
- Confirmation of Grant, Letters of Administration, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Winnie Kamene Peter
Applicant
Rossini Omar
Respondent
Procedural Posture
Succession Cause / Directions Before Judgment
Legal Issues
- 1 Whether the matter is ready for judgment in the absence of an application for confirmation of grant.
- 2 Whether the objector's abandoned objection affects the proceedings.
Ratio Decidendi
The court found that the absence of an application for confirmation of grant, as required by Section 71 of the Law of Succession Act, constituted a procedural defect that precluded the delivery of judgment. The objector's failure to prosecute the objection did not cure this defect. The court directed the petitioner to file a substantive application for confirmation of grant, and provided an opportunity for the objector to respond and cross-examine if desired. The matter was set for mention to confirm compliance with these directions.
Court Disposition
Directions issued; matter not ready for judgment.
Orders
- Petitioner to file a substantive application for confirmation of grant.
- If objector files an objection, petitioner's evidence on record may be adopted and cross-examination allowed.
Full Case Text
Judgment text and source record
13 paragraphs
In re Estate of Pietro Rossini (Deceased) (Succession Cause 44 of 2015) [2023] KEHC 21671 (KLR) (26 July 2023) (Directions)
Neutral citation: [2023] KEHC 21671 (KLR)
Republic of Kenya
In the High Court at Malindi
Succession Cause 44 of 2015
SM Githinji, J
July 26, 2023
(Formerly Garsen Succession No.43 of 2016) IN THE MATTER OF THE ESTATE OF PIETRO ROSSINI(DECEASED) WINNIE KAMENE PETER............................................PETITIONER VERSUS ROSSINI OMAR............................................................OBJECTOR
Directions
1. This matter had been scheduled for judgment today after the petitioner was heard on May 10, 2022. The objector was never heard as he did not testify nor challenge the petitioner’s evidence on cross examination.
2. I have perused the entire file and realized that there are legal procedural lacunas that render the matter not ready for judgment. Letters of administration intestate in respect of the estate of Pietro Rossino were granted to the Petitioner herein Winnie Kamene Peter on September 17, 2015. The objector filed an objection which seems to have been abandoned along the way.
3. The petitioner however, did not file an application for confirmation of grant as dictated by the provisions of Section 71 of the Law of Succession Act. In the circumstances therefore, the court directs that the Petitioner does file a substantive application for confirmation of grant. In the event of any objection by the objector, the evidence of the petitioner on record may be adopted for consideration on the issue and should the objector wish to cross examine her on the same, such be allowed. The matter shall be mentioned on December 13, 2023 to confirm filing of the application.
DIRECTIONS READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 26TH DAY OF JULY, 2023. ............................S.M. GITHINJIJUDGEIn the absence of the parties;-They be notified..............................S.M. GITHINJIJUDGE26. 7.2023