[2014] KEHC 7283 (KLR)
The court held that only the holder of a grant of representation is entitled to apply for its confirmation under Section 71(1) of the Law of Succession Act and Rule 40(1) of the Probate and Administration Rules. Since the grant in question was made to Paul Karenju Wambugu, who is now deceased, and the applicants do...
Source-derived case information.
- Citation
- [2014] KEHC 7283 (KLR)
- Parties
- Applicant: Paul Karenju Wambugu; Applicant: Nancy Wairimu; Applicant: Bernard Gathira Karenju
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 992 of 2002
- Procedural Posture
- Succession Cause / Ruling on Application for Confirmation of Grant
- Outcome
- application struck out with costs
- Judges
- DN Musyoka
- Legal Topics
- Probate and Administration, Confirmation of Grant, Capacity of Applicant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Karenju Wambugu
Applicant
Nancy Wairimu
Applicant
Bernard Gathira Karenju
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Confirmation of Grant
Legal Issues
- 1 Whether administrators of a deceased executor's estate can apply for confirmation of a grant issued to the deceased executor.
- 2 Whether a grant becomes inoperative upon the death of the holder before confirmation.
Ratio Decidendi
The court held that only the holder of a grant of representation is entitled to apply for its confirmation under Section 71(1) of the Law of Succession Act and Rule 40(1) of the Probate and Administration Rules. Since the grant in question was made to Paul Karenju Wambugu, who is now deceased, and the applicants do not hold the grant, they lack the legal capacity to seek its confirmation. Upon the death of the grant holder, the grant became useless and inoperative, rendering any application for its confirmation incompetent. The proper procedure would have been for the applicants to seek substitution as personal representatives before seeking confirmation. The application was therefore...
Court Disposition
application struck out with costs
Orders
- The application dated 31st May 2013 is struck out with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 992 OF 2002
IN THE MATTER OF THE ESTATE OF VIRGINIA WAITHERERO –(DECEASED)
RULING
1. The application dated 31st May 2013 is for confirmation of the grant of probate made to Paul Karenju Wambugu on 21st June 2002.
2. Paul Karenju Wambugu is the executor named in the will of the deceased made on 12th February 1999. The said executor is said to have died. No certificate of death has been attached, but there is attached as proof of his death a grant of letters of administration intestate in respect of his estate made on 27th August 2003 to Nancy Wairimu and Bernard Gathira Karenju in Nairobi High Court Succession Cause No. 1756 of 2003. It is these administrators of the estate of dead executor who have sought confirmation of grant of the estate of the deceased in this cause.
3. Under Section 71(1) of the Law of Succession Act and Rule 40(1) of the Probate and Administration Rules an application for grant of representation should be made by the holder of the grant. The grant in this cause was made to Paul Karenju Wambugu and therefore he is the holder thereof and the right person to move the court for confirmation of grant. Only the holder of the grant can move the court for the confirmation of his own grant.
4. The holder of the grant is now dead, and therefore he cannot apply for confirmation of his grant. Upon his death the grant made to him became useless and inoperative, and therefore incapable of being confirmed. There is therefore nothing to confirm.
5. As mentioned above, the applicants herein do not hold the grant to the estate of the deceased herein. They have no capacity therefore under Section 71(1) of the Act and Rule 40(1) of the Rules to apply for confirmation of a grant they do not hold. If they intended to have said grant confirmed, they should have sought substitution of the dead person representative.
6. The application dated 31st May 2013 is misconceived, incompetent and an abuse of the process. I hereby strike it out with costs.
DATED, SIGNED and DELIVERED at NAIROBI this31st DAY OF January, 2014.
W. MUSYOKA
JUDGE
W. MUSYOKA
JUDGE