[2015] KEHC 6699 (KLR)
The court found that the requirements for early confirmation of grant under section 71(3) of the Law of Succession Act were not met because there were dependants as defined by section 29. Furthermore, the medical evidence presented by the applicant was not new, as her age and illness were already known to the court...
Source-derived case information.
- Citation
- [2015] KEHC 6699 (KLR)
- Parties
- Applicant: P S aka P S; Respondent: S P S; Respondent: D M H S
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1635 of 2014
- Procedural Posture
- Succession Cause / Ruling on Application for Early Confirmation of Grant and Review
- Outcome
- application disallowed
- Judges
- AO Muchelule
- Legal Topics
- Confirmation of Grant, Review of Orders, Dependants Definition, Expedited Confirmation, Medical Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
P S aka P S
Applicant
S P S
Respondent
D M H S
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Early Confirmation of Grant and Review
Legal Issues
- 1 Whether the grant of representation can be confirmed before the expiry of six months from the date of grant under section 71(3) of the Law of Succession Act.
- 2 Whether the applicant has presented new and important evidence to warrant review of the previous order declining early confirmation of grant.
- 3 Whether the existence of dependants as defined under section 29 of the Law of Succession Act precludes early confirmation of grant.
Ratio Decidendi
The court found that the requirements for early confirmation of grant under section 71(3) of the Law of Succession Act were not met because there were dependants as defined by section 29. Furthermore, the medical evidence presented by the applicant was not new, as her age and illness were already known to the court at the time of the previous application. The information could have been obtained with due diligence and did not constitute new and important evidence to justify review under Order 45 of the Civil Procedure Rules. Therefore, the application for review and early confirmation of grant was disallowed.
Court Disposition
application disallowed
Orders
- The application for review and early confirmation of grant is disallowed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO.1635 OF 2014
IN THE MATTER OF THE ESTATE OF THE LATE M G H S
P S aka P S.............APPLICANT
RULING
1. I have looked at the medical report of the applicant. It shows that she suffers from type 2 Diabetes Mellitus, hypercholestrolaemia, hypertension, cerebro-vascular accidents including frequent transient, ischaemic attacks. Her physical activity after the strokes has been reduced to a few steps assisted by nurses or with a walking frame. She is 88.
2. Her dependants S P S and D M H S have each consented to the grant being confirmed on the basis of the distribution schedule annexed to the application.
3. Under section 71(3) of the Law of Succession Act (Cap 160) a grant can only be confirmed before the expiry of six months from the date of the grant if it is satisfied:-
that there is no dependant, as defined by section 29, of the deceased; and
that it would be expedient in all the circumstances of the case so to direct.
4. The power to review orders and decrees in succession cases is donated by Order 45 of the Civil Procedure Rules. There has to be discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the trial when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. (In the matter of the Estate of Hannah Nyangahu Mwenja (deceased), Nairobi High Court Probate and Administration Cause No. 901 of 1996).
5. When on 22nd January 2015 this court declined the application to confirm the grant before the expiry of six months was made it had been informed that the applicant was aged and sick and that she had the dependants who reside out of the country and who had consented to the application. It follows that nothing new is being said in this application for review. The applicant has now presented her medical records. But that was information within her knowledge, or could have been obtained after the exercise of due diligence. In any case, under section 71(3)of the Act the application to confirm before the expiry of six months should be brought where there is no dependant, as defined under section 29, of the deceased.
6. I disallow the application.
DATED and DELIVERED at NAIROBI this 30th January 2015.
A.O. MUCHELULE
JUDGE