[2017] KEHC 2836 (KLR)
The court identifies that the central issue is whether the statutory requirements for publication of notice of the application for grant of probate were complied with. The absence of evidence of gazettement or proper notice raises a prima facie concern regarding the validity of the grant. The court cannot proceed to...
Source-derived case information.
- Citation
- [2017] KEHC 2836 (KLR)
- Parties
- Applicant: Jonah Wamutitu Ndung’u; Applicant: Allan Kang’ea Ndung’u; Respondent: Peterson Ndung’u Marira
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 137 of 2014
- Procedural Posture
- Succession Cause / Pre Ruling Directions
- Outcome
- Further directions issued; parties to address the court on the issue of gazettement before ruling.
- Judges
- DW Mbuteti
- Legal Topics
- Probate and Administration, Revocation of Grant, Notice Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonah Wamutitu Ndung’u
Applicant
Allan Kang’ea Ndung’u
Applicant
Peterson Ndung’u Marira
Respondent
Procedural Posture
Succession Cause / Pre Ruling Directions
Legal Issues
- 1 Whether the grant of probate was obtained without proper notice to interested parties as required by law.
- 2 Whether failure to publish notice of the application for grant invalidates the grant.
Ratio Decidendi
The court identifies that the central issue is whether the statutory requirements for publication of notice of the application for grant of probate were complied with. The absence of evidence of gazettement or proper notice raises a prima facie concern regarding the validity of the grant. The court cannot proceed to rule on the application for annulment or revocation of the grant until parties address the issue of whether the mandatory notice provisions under the Law of Succession Act and the Probate and Administration Rules were satisfied. Compliance with these notice requirements is fundamental to the validity of the grant and the protection of the rights of all interested parties.
Court Disposition
Further directions issued; parties to address the court on the issue of gazettement before ruling.
Orders
- Parties to address the court on the issue of gazettement of the petition for grant of probate before the court proceeds to write the pending ruling.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA AT MURANG’A
SUCCESSION CAUSE NO 137 OF 2014
(FORMERLY NAIROBI HC SUCCESSION CAUSE NO.1317 OF 1996)
IN THE MATTER OF THE ESTATE OF SILA NDUNGU MARIIRA, DECEASED
1. JONAH WAMUTITU NDUNG’U
2. ALLAN KANG’EA NDUNG’U…………………….…….APPLICANTS
VERSUS
PETERSON NDUNG’U MARIRA………………………… RESPONDENT
PRE-RULING DIRECTIONS
1. The summons dated 18/03/2014 for annulment or revocation of grant of probate of written will made and confirmed herein is pending ruling. One of the complaints of the Applicants is that the grant was sought without informing or involving them, and, in effect, that they were not aware of the proceedings until after the grant had been made and confirmed.
2. Section 67 of the Law of Succession Act, Cap 160 (the Act) requires publication of notice of the application for grant (other than a limited grant for collection and preservation of assets), and that such notice be exhibited conspicuously in the court house, and also be published in such other manner as the court directs.
3. Rule 7(4) of the Probate and Administration Rules, 1980 made under the Act states –
“(4)The registrar shall cause to be inserted, at the cost of the applicant, in the Gazette and, if he so decides, in a daily newspaper, and to be exhibited conspicuously in the court house attached to the registry where the application is intended to be made, a notice of the application for the grant in Form 60 inviting objections thereto to be made known to that registry within a period to be specified in the notice, of not less than thirty days from the date of the last of such publications.”
4. As I perused the court record in preparation to write the ruling, I was unable to find evidence of gazettement of the petition for grant of probate that resulted in the grant sought to be annulled or revoked. Let the court be addressed on this issue before I can proceed to write the pending ruling.
DATED AND SIGNED AT MURANG’A THIS 12TH DAY OF OCTOBER 2017
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 13TH DAY OF OCTOBER 2017