[2007] KEHC 1820 (KLR)
The court found that, given the unresolved dispute over the existence of an oral will and the allegation that not all beneficiaries were included, it would not be just to strike out the objection. Instead, the court ordered that a grant of representation be issued jointly to the petitioners and the objector. This...
Source-derived case information.
- Citation
- [2007] KEHC 1820 (KLR)
- Parties
- Applicant: Jane Wangechi Wachira; Applicant: Stephen Mwaniki Wachira; Respondent: Charles Gichuki Wachira
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 17 of 2007
- Procedural Posture
- Succession Cause / Ruling on Summons to Strike Out Objection
- Outcome
- Application to strike out objection dismissed. Grant to issue jointly to petitioners and objector.
- Legal Topics
- Probate and Administration, Oral Wills, Grant of Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wangechi Wachira
Applicant
Stephen Mwaniki Wachira
Applicant
Charles Gichuki Wachira
Respondent
Procedural Posture
Succession Cause / Ruling on Summons to Strike Out Objection
Legal Issues
- 1 Whether the objection based on the existence of an oral will by the deceased should be struck out.
- 2 Whether all beneficiaries were properly included in the petition for grant of letters of administration.
Ratio Decidendi
The court found that, given the unresolved dispute over the existence of an oral will and the allegation that not all beneficiaries were included, it would not be just to strike out the objection. Instead, the court ordered that a grant of representation be issued jointly to the petitioners and the objector. This approach ensures that all parties with a legitimate interest in the estate are represented and have the opportunity to participate in the confirmation and distribution process. The court further held that any party may raise a protest at the confirmation stage regarding the mode of distribution, thereby safeguarding the rights of all potential beneficiaries.
Court Disposition
Application to strike out objection dismissed. Grant to issue jointly to petitioners and objector.
Orders
- A grant of representation shall issue in the names of Jane Wangechi Wachira, Stephen Mwaniki Wachira, and Charles Gichuki Wachira.
- Each of the administrators is at liberty to apply for confirmation of grant, and any party may raise a protest regarding the mode of distribution.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Succession Cause 17 of 2007
IN THE MATTER OF THE ESTATE OF SIMON WACHIRA WANGORE- DECEASED
JANE WANGECHI WACHIRA
STEPHEN MWANIKI WACHIRA……………....APPLICANTS/PETITIONERS
Versus
CHARLES GICHUKI WACHIRA………….…….RESPONDENT/ OBJECTOR
RULING
The summons dated 31st August, 2007 is brought by the petitioners herein. They seek the striking out of the objection filed by the objector herein. The application is brought under rules 49, 59, and 73 of Probate and Administration Rules. In support of that application the petitioners in their affidavit state that the basis of the objection was that it is alleged by the objector that the deceased before his death had made an oral will. The objector stated in his objection that the oral will was witnessed by two persons. The petitioners deponed that it is not true that an oral will had been made by the deceased. They had made effort to contact the alleged witnesses of that oral will who had denied being witnesses to such a will. They deponed that the children of the deceased are in harmony in the manner of the administration of the deceased estate apart from the objector who was being adamant for his own reasons.
The objector opposed the application by a replying affidavit. In that replying affidavit he reiterated the information in his objection that the deceased had made an oral will. That if the succession was to proceed in the manner suggested by the petitioners the same would be against the wishes of the deceased.
I have considered the application before court and the opposition. Apart from alleging that the deceased had made an oral will the objector also claimed that there were names of beneficiaries who had not been included in the petition. Bearing in mind those objections, I am of the view that the just decision is that a grant should issue jointly to the petitioners and the objector. The order of the court therefore is that a grant do issue in the names of JANE WANGECHI WACHIRA, STEPHEN MWANIKI WACHIRA AND CHARLES GICHUKI WACHIRA. Each of those persons shall be at liberty to apply for confirmation of grant and on such an application being made any party may raise a protest in respect of the mode of distribution.
There shall be no orders as to costs in respect of the summons dated 31st August 2007.
MARY KASANGO
JUDGE
Dated and delivered at Nyeri this 15th day of November 2007
BY: M. S. A MAKHANDIA
JUDGE