[2002] KEHC 276 (KLR)
The court found that there was no evidence on record to show that the notice under Rule 17(5) of the Probate and Administration Rules was prepared or served on the objector. The applicant's advocate did not file an affidavit to support the claim of service, nor was it stated when or how the notice was sent. In the...
Source-derived case information.
- Citation
- [2002] KEHC 276 (KLR)
- Parties
- Applicant: Applicant (Name not provided); Respondent: Father of the deceased (Objector)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2750 of 2001
- Procedural Posture
- Succession Cause / Ruling on Application to Strike Out Objection
- Outcome
- application dismissed
- Legal Topics
- Probate and Administration, Striking Out Objection, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicant (Name not provided)
Applicant
Father of the deceased (Objector)
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Strike Out Objection
Legal Issues
- 1 Whether the objection filed by the father of the deceased should be struck out for want of prosecution.
- 2 Whether there is sufficient evidence of service of notice under Rule 17(5) of the Probate and Administration Rules.
Ratio Decidendi
The court found that there was no evidence on record to show that the notice under Rule 17(5) of the Probate and Administration Rules was prepared or served on the objector. The applicant's advocate did not file an affidavit to support the claim of service, nor was it stated when or how the notice was sent. In the absence of appropriate evidence of service, the application to strike out the objection could not be granted. The mere absence of a response or appearance by the objector's counsel at the hearing did not justify granting the orders sought without proper proof of service.
Court Disposition
application dismissed
Orders
- The application dated 24th April, 2002 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 2750 OF 2001
IN THE MATTER OF THE ESTATE OF GERALD TINDI OTIENO (DECEASED)
R U L I N G
This application seeks to strike out the objections filed by the father of the deceased 0n 19th December, 2001 on the grounds that no steps are taken by him to get the objection heard
. It is also averred that the Applicant’s counsel has served the notice under Rule 17 (5) of the Probate and Administration Rules to the counsel of the objector and no response is made of that notice.
However, I do note that there is no record of such notice having been either prepared or served.The Advocate of the Applicant has not filed any affidavit to support the averment. Surprisingly it is not even stated when and how such purported notice was sent. It is true that there is no response filed in response to the application or appearance was made by the counsel of the objector, at the time of hearing but that fact cannot entitle the applicant to get an order which is not justified.
In absence of appropriate evidence of the notice under the Rules and its service the application dated 24th April, 2002 is dismissed. I do not make any order on costs. Dated and delivered at Nairobi this 20th day of May, 2002.
K. H. RAWAL J U D G E.