[2013] KEHC 4774 (KLR)

[2013] KEHC 4774 (KLR)

The court held that the omission of assets from the list of estate assets is not an error contemplated by Section 74 of the Law of Succession Act or Rule 43 of the Probate and Administration Rules. However, the court retains inherent power under Rule 73 to order inclusion of omitted assets if justified. The applicant failed to provide documentary proof that the omitted assets belonged to the deceased, which is necessary to justify their inclusion. Therefore, the court declined to allow or dismiss the application, instead granting the applicant leave to file further affidavit evidence of ownership. The application for confirmation of grant was also postponed pending this evidence.

Citation
[2013] KEHC 4774 (KLR)
Parties
Applicant: __MISSING__; Respondent: __MISSING__
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
7 March 2013
Case Number
Succession Cause 1240 of 2012
Procedural Posture
Succession Cause / Ruling on Applications for Rectification and Confirmation of Grant
Outcome
Leave granted to applicant to file further affidavit evidence; confirmation application postponed.
Judges
DN Musyoka
Legal Topics
Probate and Administration, Rectification of Grant, Confirmation of Grant
Source Language
English
Family and Children Probate and Administration Rectification of Grant Confirmation of Grant

Case Brief

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Parties

__MISSING__

Applicant

__MISSING__

Respondent

Procedural Posture

Succession Cause / Ruling on Applications for Rectification and Confirmation of Grant

Legal Issues

  1. 1 Whether the omission of certain assets from the list of estate assets can be rectified under Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules.
  2. 2 Whether the applicant has provided sufficient proof that the omitted assets belonged to the deceased.

Ratio Decidendi

The court held that the omission of assets from the list of estate assets is not an error contemplated by Section 74 of the Law of Succession Act or Rule 43 of the Probate and Administration Rules. However, the court retains inherent power under Rule 73 to order inclusion of omitted assets if justified. The applicant failed to provide documentary proof that the omitted assets belonged to the deceased, which is necessary to justify their inclusion. Therefore, the court declined to allow or dismiss the application, instead granting the applicant leave to file further affidavit evidence of ownership. The application for confirmation of grant was also postponed pending this evidence.

Court Disposition

Leave granted to applicant to file further affidavit evidence; confirmation application postponed.

Orders

  • Applicant granted leave to file a further or supplementary affidavit exhibiting documents to show ownership by the deceased of the omitted assets.
  • Application for confirmation of grant dated 10th December 2012 is postponed.