[2004] KEHC 2447 (KLR)
The court found that the applicant failed to comply with a direct court order to file documentary evidence supporting his claim of trust over the disputed property, resulting in technical dismissal of the application. Furthermore, the court held that a claim based on an alleged trust is not a valid ground for...
Source-derived case information.
- Citation
- [2004] KEHC 2447 (KLR)
- Parties
- Applicant: Leonard Kamanu Gathunguri; Respondent: Racheal Muthoni Gathara
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1980 of 1998
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- application dismissed with costs to the respondent
- Judges
- FI Koome
- Legal Topics
- Probate and Administration, Revocation of Grant, Trust Property, Wills, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Kamanu Gathunguri
Applicant
Racheal Muthoni Gathara
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of probate with written will should be revoked on grounds of alleged trust property.
- 2 Whether the applicant's claim of trust over plot No. Kiambaa/Karuri/T.59 constitutes a valid ground for revocation of grant under succession law.
Ratio Decidendi
The court found that the applicant failed to comply with a direct court order to file documentary evidence supporting his claim of trust over the disputed property, resulting in technical dismissal of the application. Furthermore, the court held that a claim based on an alleged trust is not a valid ground for revocation of a grant of probate under the Law of Succession Act, as the deceased left a valid written will and a named executrix. The applicant's allegations did not amount to untrue allegations essential in law to justify revocation. Accordingly, the summons for revocation lacked merit both procedurally and substantively and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The summons for revocation of grant is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1980 OF 1998
IN THE MATTER OF THE ESTATE OF GATHERA GATHUNGURI ALIAS SIMEON GATHARA GATHUNGURI (DECEASED)
LEONARD KAMANU GATHUNGURI……………PETITIONER/APPLICANT
Versus
RACHEAL MUTHONI GITHARA…..……………OBJECTOR/RESPONDENT
RULING
The applicant Leonard Kamanu Gathunguri filed this Summons for revocation of the Grant of Probate with a written will made to Racheal Muthoni Gathara on 1st December 1998 in respect of the estate of the deceased herein.
The applicant is the brother of the deceased, while the respondent is the widow and executrix of the will of the deceased. The reason(s) advanced by the applicant for revocation are rather vague to wit:
“That the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant in that the protester and other beneficiaries misled the court that the applicant herein want to tell the court the truth”
The applicant’s complaint as I understand it from the grounds advanced in the Summons is the inclusion of plot No. Kiambaa/Karuri/T.59 as the property of the deceased. According to the applicant the said plot was registered in the deceased name to hold one half share in trust for the applicant. That the deceased fell ill before he transferred the plot although they had entered into an agreement on 24th October 1960 for the deceased to hold the property in Trust. No copy of the said agreement is attached to the applicant’s affidavit.
The matter came up for hearing on 24th November 2003 before Hon. Kamau J. and the applicant was directed to file a supplementary affidavit exhibiting documentary evidence to support his alleged claim in the affidavit within 15 days. Failure to do so the court directed that the application for revocation dated 16th July 2001 would stand dismissed.
The applicant failed/neglected to comply with the said order and therefore technically the Summons for Revocation herein stands dismissed.
Besides that point, it is also important to point out that the Summons for Revocation lacks merit in that the applicant’s claim is in respect of property allegedly held in Trust for him by the deceased.
The claim applicants which is based under the Law of Trust cannot be a ground for the revocation of the grant. The deceased left a valid written will and a named executrix of the will and in this regard the Summons for revocation must fair.
Accordingly the Summons for revocation has no justification in law and it is hereby dismissed with costs to the respondent.
Ruling read and signed on 1st July 2004.
MARTHA KOOME
JUDGE