[2002] KEHC 1111 (KLR)

[2002] KEHC 1111 (KLR)

The court held that the application for revocation of grant was improperly before it because it was brought by Notice of Motion rather than by summons in Form 107 as required by section 76 of the Law of Succession Act and rule 44 of the Probate and Administration Rules. The mandatory procedure for such applications, including the filing of supporting affidavits and issuance of notices to affected parties, had not been followed. As a result, there was no valid application for revocation of grant before the court, and it would be improper for the court to proceed to hear the Notice of Motion. The court therefore struck out the Notice of Motion, leaving the applicant at liberty to file a...

Citation
[2002] KEHC 1111 (KLR)
Parties
Applicant: __MISSING__; Respondent: __MISSING__
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
25 February 2002
Case Number
Succession Cause 619 of 2000
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection/procedural Irregularity
Outcome
Notice of Motion struck out for procedural impropriety; leave to file proper application granted; each party to bear own costs; leave to appeal granted.
Legal Topics
Revocation of Grant, Probate and Administration Procedure, Form of Applications, Jurisdiction of High Court
Source Language
English
Civil Procedure Family and Children Revocation of Grant Probate and Administration Procedure Form of Applications Jurisdiction of High Court

Case Brief

Summary, issues, holding and outcome

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Parties

__MISSING__

Applicant

__MISSING__

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Preliminary Objection/procedural Irregularity

Legal Issues

  1. 1 Whether an application for revocation of grant can be properly brought by Notice of Motion instead of summons in Form 107 under section 76 of the Law of Succession Act and rule 44 of the Probate and Administration Rules.
  2. 2 Whether the High Court can entertain a Notice of Motion for revocation of a grant issued by a Magistrate's Court when the proper procedure has not been followed.

Ratio Decidendi

The court held that the application for revocation of grant was improperly before it because it was brought by Notice of Motion rather than by summons in Form 107 as required by section 76 of the Law of Succession Act and rule 44 of the Probate and Administration Rules. The mandatory procedure for such applications, including the filing of supporting affidavits and issuance of notices to affected parties, had not been followed. As a result, there was no valid application for revocation of grant before the court, and it would be improper for the court to proceed to hear the Notice of Motion. The court therefore struck out the Notice of Motion, leaving the applicant at liberty to file a...

Court Disposition

Notice of Motion struck out for procedural impropriety; leave to file proper application granted; each party to bear own costs; leave to appeal granted.

Orders

  • The Notice of Motion dated 28th November 1996 in HC Misc Civil Application No 1248 of 1996 is struck out.
  • Proper summons for revocation of grant may be filed if the applicant wishes.