[2009] KEHC 914 (KLR)
The court found that the grant of probate issued on 29th May, 2009, which included Abdulwahid Omar Yunus as a co-executor, was in error and did not reflect the terms of the deceased's will, which named Yunus Omar Bashir as the sole executor and trustee. The error was attributed to an oversight in the preparation of...
Source-derived case information.
- Citation
- [2009] KEHC 914 (KLR)
- Parties
- Applicant: Yunus Omar Bashir; Respondent: Abdulwahid Omar Yunus
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 309 of 2008
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Grant
- Outcome
- application granted
- Legal Topics
- Probate, Rectification of Grant, Wills, Executor Removal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yunus Omar Bashir
Applicant
Abdulwahid Omar Yunus
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Grant
Legal Issues
- 1 Whether the grant of probate issued included an executor contrary to the terms of the deceased's will.
- 2 Whether the grant should be rectified to reflect only the executor named in the will.
Ratio Decidendi
The court found that the grant of probate issued on 29th May, 2009, which included Abdulwahid Omar Yunus as a co-executor, was in error and did not reflect the terms of the deceased's will, which named Yunus Omar Bashir as the sole executor and trustee. The error was attributed to an oversight in the preparation of the supporting affidavit, where the beneficiary's name was mistakenly included as a proposed executor. The court held that, in accordance with section 74 of the Law of Succession Act and Rule 43(i) of the Probate and Administration Rules, it had the authority to rectify such errors to ensure the grant accurately reflected the testator's intentions. The application for...
Court Disposition
application granted
Orders
- The grant of probate of written will issued to Yunus Omar Bashir and Abdulwahid Omar Yunus on 29th May, 2009 is rectified by excluding the name of Abdulwahid Omar Yunus, leaving as executor and trustee only Yunus Omar Bashir.
- The costs of this application shall be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Succession Cause 309 of 2008
IN THE MATTER OF THE ESTATE OF FATUMA AHMED (DECEASED)
RULING
The applicant, through his advocates, M/s. Balala & Abed Advocates, filed Summons for Rectification of Grant, under ss.74, 75 and Rule 43(i) of the Law of Succession Act (Cap.160, Laws of Kenya).
It was requested that the grant of probate of written will issued to Yunus Omar Bashir and Abdulwahid Omar Yunus in this matter on 29th May, 2009 be rectified: It was stated that the name of the second person shown as proposed executor, in the affidavit in support of the petition for Letters of Administration sworn on 25th August, 2008 was included by oversight, and so should be removed. It was prayed that the grant of probate of written will issued on 29th May, 2009 be amended to reflect only Yunus Omar Bashir as the executor of the estate of Fatuma Ahmed.
The application was supported by the affidavit of the applicant’s advocate, Mohammed Salim Balala, sworn on 5th August, 2009.
The deponent states that a grant of probate was made to Yunus Omar Bashir and Abdulwahid Omar Yunus before the High Court on 29th May, 2009; the said grant “contains errors as to …the time of filing [the] petition and the affidavit in support of the petition” – the deponent’s office had “made an error by making Abdulwashid Omar Yunus a second applicant when the will clearly states that the 1st applicant, Yunus Omar Bashir[is to be] the sole executor and trustee of the deceased”. This error is explained as having arisen from the fact that the name of Abdulwahid Omar Yunus appeared as a beneficiary next to the name of the trustee of the will. It is deponed that the Court had proceeded to issue a grant of probate to both Yunus Omar Bashir and Abdulwahid Omar Yunus, and this was in departure from the written will left by the deceased.
The content of the summons speaks for itself: the grant of probate, as issued, was in departure from the terms of the will itself; and the deponent has explained how the error came to be made. I will grant the application, and make orders as follows:
1. The grant of probate of written will issued toYunus Omar BashirandAbdulwahid Omar Yunuson 29th May, 2009 is hereby rectified by excluding the name ofAbdulwahid Omar Yunus, leaving as executor and trustee onlyYunus Omar Bashir.
2. The costs of this application shall be in the cause.
DATED and DELIVERED at MOMBASA this 30th day of October, 2009.
J. B. OJWANG
JUDGE
Coram: Ojwang, J.
Court Clerk: Ibrahim
For the Applicant: Mr. Abed