[2009] KEHC 2904 (KLR)
The court held that the objection was unsustainable because the petition was properly filed for probate with will annexed, and the will named the applicant and her children as executors. The objector was not named as executor and could not be appointed as administrator unless the named executors renounced their...
Source-derived case information.
- Citation
- [2009] KEHC 2904 (KLR)
- Parties
- Applicant: Sicely Wangeci Ikinya; Respondent: Priscilla Wainoi Ikinya
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 152 of 2005
- Procedural Posture
- Succession Cause / Ruling on Application to Dismiss Objection
- Outcome
- objection dismissed with costs to the petitioner
- Judges
- J Karanja
- Legal Topics
- Probate With Will, Appointment of Executors, Administration of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sicely Wangeci Ikinya
Applicant
Priscilla Wainoi Ikinya
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Dismiss Objection
Legal Issues
- 1 Whether the objection to the petition for probate with will annexed is sustainable in law.
- 2 Whether the objector, not named as executor in the will, can be appointed as administrator of the estate.
Ratio Decidendi
The court held that the objection was unsustainable because the petition was properly filed for probate with will annexed, and the will named the applicant and her children as executors. The objector was not named as executor and could not be appointed as administrator unless the named executors renounced their rights, which had not occurred. The court further found that the erroneous gazetting of the cause as intestate did not change the substance of the petition or the legal position. Therefore, the objection was dismissed with costs to the petitioner.
Court Disposition
objection dismissed with costs to the petitioner
Orders
- The objection dated 15/12/2005 is dismissed with costs to the petitioner.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Succession Cause 152 of 2005
IN THE MATTER OF THE ESTATE OF DUNCAN IKINYA NGAIRE……….DSD
AND
SICELY WANGECI IKINYA…………………………..PETITIONER/APPLICANT
VERSUS
PRISCILLA WAINOI IKINYA…………………….........OBJECTOR/RESPONDENT
RULING
I have heard the application dated 10/1/2006. The same is seeking for orders to dismiss the objection dated 15/12/2005 with costs. I have considered the grounds on the face of the application and the rival affidavits. I have considered the oral submissions by both counsel in court along with the applicable law. To start with, I note that the petitioner herein filed for probate with will annexed and annexed the deceased’s will to her petition. The will appoints her and her sons and daughters as Executors/Executrix. The others have nonetheless renounced their right to be executors and left it to the petitioner herein. The objector is definitely not named as one of the Executors. She cannot therefore unless the Executors/Executrix named in the will accept, be appointed as an administrator. I appreciate that there was an oversight in that the court gazetted the cause as an intestate cause while the respondent had indeed completed the proper forms for probate. The gazette notice does not change the reality and substance of the petition. It is evident therefore that this objection is totally misplaced and unsustainably in law. Accordingly, I dismiss the same with costs to the petitioner/respondent.
W. KARANJA
JUDGE
20/5/2009
Delivered in open court at Embu this 20th May, 2009 in presence of the petitioner and her son.
W. KARANJA
JUDGE
20/5/2009