[2017] KEHC 9359 (KLR)
The court found that the applicant failed to provide documentary proof, such as death certificates, to establish the death of the original administrators. In the absence of such evidence, the applicant lacked the legal capacity to seek substitution as administrator or rectification of the grant. The court emphasized...
Source-derived case information.
- Citation
- [2017] KEHC 9359 (KLR)
- Parties
- Applicant: Roshanali Sultanali Karmali
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1210 of 1989
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Grant
- Outcome
- application dismissed
- Legal Topics
- Rectification of Grant, Administrator Substitution, Probate and Administration, Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Roshanali Sultanali Karmali
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Grant
Legal Issues
- 1 Whether the applicant has provided sufficient proof of death of the original administrators to warrant substitution as administrator of the estate.
- 2 Whether the applicant is entitled to rectification of grant and distribution of the estate shares.
Ratio Decidendi
The court found that the applicant failed to provide documentary proof, such as death certificates, to establish the death of the original administrators. In the absence of such evidence, the applicant lacked the legal capacity to seek substitution as administrator or rectification of the grant. The court emphasized that the burden of proof lies with the applicant, and without satisfying this requirement, the orders sought could not be granted. Consequently, the application was dismissed for want of evidence regarding the death of the original administrators.
Court Disposition
application dismissed
Orders
- The application for rectification of grant is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO. 1210 OF 1989
IN THE MATTER OF THE ESTATE OF KERMALLY JAFFER (DECEASED)
AND
IN THE MATTER OF AN APPLICATION FOR RECTIFICATION OF GRANT
BY
ROSHANALI SULTANALI KARMALI…………………………….APPLICANT
RULING
1. The application before court for determination is the summons for rectification of grant dated 15th March, 2017 seeking the following orders:-
a. That Rashanali Sultanali Karmali, the grandson of Kermally Jaffer be appointed as administrator in place of Sultanally Kermally and Ali Kermally alias Ali Karmally, who passed on 2nd day of October, 1989.
b. That the grant issued to Rashanali Sultanali Karmali be confirmed and the estate be distributed to Rashanali Sultanali Karmali.
c. That the costs of this application be in the cause.
2. In support of the application, the Applicant swore an affidavit on 14th February, 2017 in which he deponed that a certificate of confirmation of grant of probate had been issued to Sultanally Kermally and Ali Kermally on 13th December, 1990, both of whom have since passed on. He therefore seeks to substitute the two as an administrator of the estate.
3. Further, that the estate also comprised of shares with Barclays Bank of Kenya held jointly by himself and the deceased and it was his prayer for the shares to be transferred to him (Applicant) as the other beneficiaries entitled to a share of the ordinary shares have relinquished their interest in the shares to the applicant. However, after perusing the application, supporting affidavit and annexures thereof, there is no evidence nor proof by way of death certificates attached to confirm that indeed the executors have since died. In the absence of such proof, this court is inclined not to grant the orders sought as the applicant lacks capacity to seek the aforesaid prayers.
4. Accordingly the application herein is dismissed with no order as to costs.
Order accordingly.
DATED AND DELIVERED IN OPEN COURT THIS 29TH DAY OF SEPTEMBER, 2017.
J.N. ONYIEGO
JUDGE
In the presence of;
………………………..…..Advocate for the applicant