[2012] KEHC 2444 (KLR)
The court found that the applicant had indeed filed an affidavit of protest prior to the confirmation of the grant, as evidenced by the copy of the affidavit and the official receipt for court fees. The court was convinced that the confirmation of the grant was issued in error because the protest was not considered....
Source-derived case information.
- Citation
- [2012] KEHC 2444 (KLR)
- Parties
- Applicant: Lucy Nyawira Chege; Respondent: Johnson Chege Macharia
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 648 of 2010
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- application for revocation of grant allowed; confirmation of grant set aside; application for confirmation of grant restored for hearing
- Judges
- JK Sergon
- Legal Topics
- Revocation of Grant, Confirmation of Grant, Non Disclosure, Affidavit of Protest
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Nyawira Chege
Applicant
Johnson Chege Macharia
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration intestate should be revoked due to non-disclosure of a filed affidavit of protest by the applicant.
- 2 Whether the confirmation of grant was obtained in error as a result of the missing affidavit of protest.
Ratio Decidendi
The court found that the applicant had indeed filed an affidavit of protest prior to the confirmation of the grant, as evidenced by the copy of the affidavit and the official receipt for court fees. The court was convinced that the confirmation of the grant was issued in error because the protest was not considered. As a result, the order confirming the grant was set aside, and the application for confirmation of grant was restored for hearing alongside the protest after directions are taken. The costs of the summons for revocation of grant were ordered to abide the outcome of the summons for confirmation of grant.
Court Disposition
application for revocation of grant allowed; confirmation of grant set aside; application for confirmation of grant restored for hearing
Orders
- The order confirming the grant is set aside.
- The application for confirmation of grant is restored for hearing together with the protest after directions are taken.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Succession Cause 648 of 2010
IN THE MATTER OF THE ESTATE OF CHEGE MACHARIA aliasMUTHEE MACHARIA – DECEASED
A N D
LUCY NYAWIRA CHEGE............................................................................................................APPLICANT
-versus-
JOHNSON CHEGE MACHARIA...........................................................................................RESPONDENT
R U L I N G
A Grant of Letters of Administration Intestate in respect of the estate of Chege Macharia, deceased was issued to Johnson Chege Macharia on 14th July 2010 and confirmed on 20th May 2011. Lucy Nyawira Chege, hereinafter referred to as the Applicant, took out the Summons for Revocation of Grant dated 23rd May 2011 in which she sought for the aforesaid grant to be revoked. She filed two affidavits she swore in support of the summons. Johnson Chege Macharia, the Respondent herein filed a Replying Affidavit he swore to opposed the summons.
The main ground raised and argued by the Applicant is that the Respondent had failed to disclose to court that the Applicant had already filed and served him with an Affidavit of Protest when he appeared for the hearing of the Summons for Confirmation of Grant. It is alleged that the file copy of the Affidavit of Protest could have been plucked off before the file was placed before the judge hearing the Summons for Confirmation of Grant. The Respondent on his part averred that he nor his advocate had been served with the Affidavit of Protest by the time the Summons for Confirmation came up for interpartes hearing. The Respondent admits that he is now aware that an affidavit of Protest had been filed before the grant was confirmed. The Applicant’s complaint to this court appears to be genuine. It is apparent from the annextures attached to the affidavit of Lucy Nyawira Chege, that an Affidavit of Protest was filed. There is a copy plus the official receipt for court fees paid. The affidavit was filed on 1st March 2011. I am convinced the order confirming the grant was issued in error hence the order should be set aside which I hereby order. Consequently, the application for confirmation of grant is restored. Parties to set down the Summons for Confirmation of Grant together with the Protest for hearing after directions have been taken. Costs of the Summons for Revocation of Grant to abide the outcome of the summons for Confirmation of Grant.
Dated and delivered this 17th day of August, 2012.
J. K. SERGON
JUDGE