[2016] KEHC 3144 (KLR)
The court found that the objector's affidavit in support of objection to the making of the grant was filed outside the 30-day period prescribed by Rule 17 of the Probate and Administration Rules. The objector did not seek or obtain leave to file the objection out of time, as required by law. Compliance with...
Source-derived case information.
- Citation
- [2016] KEHC 3144 (KLR)
- Parties
- Petitioner: Mbuthia Gachau; Objector: Elizabeth Njeru Kuibita
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 529 of 2014
- Procedural Posture
- Succession Cause / Ruling on Objection to Grant of Representation
- Outcome
- objection struck out as filed out of time; liberty to re-apply granted; no order as to costs
- Legal Topics
- Probate Procedure, Grant of Representation, Will Validity, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbuthia Gachau
Petitioner
Elizabeth Njeru Kuibita
Objector
Procedural Posture
Succession Cause / Ruling on Objection to Grant of Representation
Legal Issues
- 1 Whether the objection to the grant of representation was lodged within the statutory time limit.
- 2 Whether the objector was required to seek extension of time to file the objection out of time.
- 3 Whether the objection raises substantive issues that should be determined at a later stage of the proceedings.
Ratio Decidendi
The court found that the objector's affidavit in support of objection to the making of the grant was filed outside the 30-day period prescribed by Rule 17 of the Probate and Administration Rules. The objector did not seek or obtain leave to file the objection out of time, as required by law. Compliance with statutory timelines is essential to expedite succession proceedings and is not a mere technicality. As a result, the objection was incompetent and devoid of contestable status under the Law of Succession Act. The court therefore struck out the objection, but granted liberty to the objector to re-apply in accordance with the rules.
Court Disposition
objection struck out as filed out of time; liberty to re-apply granted; no order as to costs
Orders
- The objection dated 27th April 2015 is struck out as filed out of time.
- Liberty to re-apply as stipulated by Rule 17 of the Probate and Administration Rules is granted to the objector.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 529 OF 2014
IN THE MATTER OF THE ESTATE OF GACHAU KABUTHIA (DECEASED)
MBUTHIA GACHAU.............................................................PETITIONER
VERSUS
ELIZABETH NJERU KUIBITA..................................................OBJECTOR
RULING
1. In this application, the objector has lodged an objection dated 27th April 2015 against the grant of representation in favour of Mbuthia Gachau (the petitioner), who is named as the executor of the will of the deceased. In support of her objection, the objector's counsel has filed written submissions in which the validity of that will has been challenged on the ground that the deceased was incompetent to make the said will.
2. The petitioner's counsel has also filed written submissions in opposition to the objection. The petitioner's counsel has submitted that under Rule 17 (1) of the Probate and Administration Rules, an intending objector must do so within the period specified in the notice of publication under Rule17 (4) of the Probate and Administration Rules. According to counsel, Rule 17 (4) stipulates a period of 30 days from the date of publication within which an objection should be lodged. In the instant application, this cause was advertised in the Kenya gazette on 30th January 2015 and the period of 30 days lapsed on 2nd March 2015. In his view, the objector is clearly out of time. Additionally, counsel has submitted that the objector did not bother to seek extension of time under Rule 17 (1) in order to be permitted to lodge her objection. Counsel further submitted that the failure to do so constitutes an abuse of the court process and that this objection is frivolous and vexatious.
3. Furthermore, counsel has submitted that under the provisions of Rule 17 (5) to (10), the objector neglected to pursue for more time within which to file her answer to the petition for a grant together with a petition by way of a cross application for a grant. The failure to do so renders the objectors' “affidavit of objection” as being of no substance and being devoid of any contestable status under the Law of Succession Act (Cap 160) Laws of Kenya. Additionally counsel has also submitted that the issues raised in the objectors' submissions are matters of substance that ought to be canvassed at the stage of the distribution of the assets of the deceased and not at the administrative/ministerial stage of the cause, where the court has been approached only for the purposes of the appointment of the administrator.
4. Finally, he has concluded his submission by pointing out that the legality/existence of the will and as to who are the beneficiaries raised in the affidavit of objection are premature and shall have their day in court at a later stage namely during the confirmation proceedings. It is for these reasons that counsel has urged the court to dismiss the application with costs to the petitioner.
5. I have considered the affidavit evidence of the objector and that of the petitioner. I find that this succession cause was advertised in the Kenya gazette on 30th January 2015. In terms of Rule 17, the objector had 30 days within which to lodge her objection, which was to be accompanied by an answer to the petition for a grant together with a petition by way of a cross-application for a grant in terms of Rules 17 (5) to (10). Her objection titled “affidavit in support of objection to making of grant” is clearly out of time. Additionally, the objector's counsel has not sought and obtained leave within which to file the objection as stipulated by law. Time limits serve the purpose of expediting the succession proceedings and must be complied with. They are not be technical rules.
6. In the circumstances, I find that the application of the objector is filed out of time and for this reason, it is hereby struck out with liberty to re-apply as stipulated by Rule 17 of the Probate and Administration Rules.
7. There will be no orders as to costs.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 30thday of AUGUST2016
In the absence of the petitioner and in the presence of Mr .Andande holding brief for Mr. E Njiru for the petitioner
Court clerk Njue
J.M. BWONWONGA
JUDGE
30. 08. 16