[2015] KEHC 6775 (KLR)

[2015] KEHC 6775 (KLR)

The court held that while the application for confirmation of grant was defective due to the lack of a commissioned supporting affidavit as required by Rule 40(1) of the Probate and Administration Rules, the defect was not fatal. The application remains valid but cannot be determined until the procedural irregularity is cured. The court exercised its discretion to allow the applicant to regularize the affidavit within fourteen days, after which the matter would be mentioned for further directions. This approach upholds the principle that procedural defects should not override substantive justice, provided they can be remedied without prejudice.

Citation
[2015] KEHC 6775 (KLR)
Parties
Applicant: Lucy Wanjiku Chege; Applicant: Kevin Karagu Chege; Applicant: Tabitha Wakiya Kabuthia
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
23 January 2015
Case Number
Succession Cause 375 of 2009
Procedural Posture
Succession Cause / Ruling on Application for Confirmation of Grant
Outcome
Determination of the application postponed pending regularization of the supporting affidavit.
Judges
DN Musyoka
Legal Topics
Succession, Confirmation of Grant, Probate Procedure
Source Language
English
Family and Children Succession Confirmation of Grant Probate Procedure

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Lucy Wanjiku Chege

Applicant

Kevin Karagu Chege

Applicant

Tabitha Wakiya Kabuthia

Applicant

Procedural Posture

Succession Cause / Ruling on Application for Confirmation of Grant

Legal Issues

  1. 1 Whether the application for confirmation of grant complies with Rule 40(1) of the Probate and Administration Rules.
  2. 2 Whether the absence of a commissioned supporting affidavit is fatal to the application.

Ratio Decidendi

The court held that while the application for confirmation of grant was defective due to the lack of a commissioned supporting affidavit as required by Rule 40(1) of the Probate and Administration Rules, the defect was not fatal. The application remains valid but cannot be determined until the procedural irregularity is cured. The court exercised its discretion to allow the applicant to regularize the affidavit within fourteen days, after which the matter would be mentioned for further directions. This approach upholds the principle that procedural defects should not override substantive justice, provided they can be remedied without prejudice.

Court Disposition

Determination of the application postponed pending regularization of the supporting affidavit.

Orders

  • Applicant to regularize the application by commissioning the supporting affidavit within fourteen (14) days.
  • Matter to be mentioned on a date to be given at the registry on priority for further directions.