[2003] KEHC 933 (KLR)

[2003] KEHC 933 (KLR)

The court found that the attempted transfer of land to the petitioner was incomplete and could not be perfected by the court. The application for grant was procedurally defective due to the use of the wrong statutory form, and the purported substitution by consent was invalid as the law only allows for amendment, not substitution. Consequently, the estate was treated as intestate. The court held that both the objector (Ann Kugun, now deceased, represented by Nicholas Kipkosgei Kogo) and Nicholas were dependants of the deceased under customary law and the Law of Succession Act. The will, though valid, was not absolute, and the court was empowered under section 26 to make reasonable...

Citation
[2003] KEHC 933 (KLR)
Parties
Petitioner: Mary Cheboo Kimnyigel; Objector: Ann Kugun Jepkios (deceased, substituted by Nicholas Kipkosgei Kogo)
Court
High Court
Court Station
High Court at Eldoret
Jurisdiction
Kenya
Judgment Date
21 February 2003
Case Number
Probate & Administration 29 of 1996
Procedural Posture
Probate and Administration Cause / Judgment
Outcome
Estate distributed as intestacy; grant of letters of administration intestate to Mary Cheboo Kimnyigel and Nicholas Kipkosgei Kogo.
Legal Topics
Testate and Intestate Succession, Woman to Woman Customary Marriage, Dependant Entitlement, Will Validity, Grant Procedure, Distribution of Estate
Source Language
English
Family and Children Civil Procedure Testate and Intestate Succession Woman to Woman Customary Marriage Dependant Entitlement Will Validity Grant Procedure Distribution of Estate

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Parties

Mary Cheboo Kimnyigel

Petitioner

Ann Kugun Jepkios (deceased, substituted by Nicholas Kipkosgei Kogo)

Objector

Procedural Posture

Probate and Administration Cause / Judgment

Legal Issues

  1. 1 Whether the court can effect transfer of land where the deceased's intended transfer was incomplete.
  2. 2 Whether the use of the wrong statutory form in applying for grant of probate with will annexed invalidates the proceedings or can be cured by amendment or substitution.
  3. 3 Whether the will of the deceased is valid and should be upheld despite procedural irregularities.

Ratio Decidendi

The court found that the attempted transfer of land to the petitioner was incomplete and could not be perfected by the court. The application for grant was procedurally defective due to the use of the wrong statutory form, and the purported substitution by consent was invalid as the law only allows for amendment, not substitution. Consequently, the estate was treated as intestate. The court held that both the objector (Ann Kugun, now deceased, represented by Nicholas Kipkosgei Kogo) and Nicholas were dependants of the deceased under customary law and the Law of Succession Act. The will, though valid, was not absolute, and the court was empowered under section 26 to make reasonable...

Court Disposition

Estate distributed as intestacy; grant of letters of administration intestate to Mary Cheboo Kimnyigel and Nicholas Kipkosgei Kogo.

Orders

  • Plot No 4 Kibigong Trading Centre to be shared equally between Mary Cheboo and Nicholas Kipkosgei Kogo.
  • Nicholas Kipkosgei Kogo to refund KES 5,937.50 to Mary Cheboo within 45 days as half of rates paid for the centre plot.