[2007] KEHC 47 (KLR)
The court found that the protestor's claim was substantiated by the notebook entry, which was acknowledged by the administrator as being in the handwriting and signature of the deceased. The administrator's admission, coupled with the documentary evidence, established the debt as a valid claim against the estate....
Source-derived case information.
- Citation
- [2007] KEHC 47 (KLR)
- Parties
- Applicant: Janet Wangui Kageche; Respondent: Bendele Gachiri Kamau
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? Succession 1 of 1967
- Procedural Posture
- Succession Cause / Ruling on Protest to Confirmation of Grant
- Outcome
- Protest allowed; administrator ordered to pay protestor KES 160,100 plus costs. Confirmation of grant allowed subject to payment of claim.
- Legal Topics
- Confirmation of Grant, Debt Claims Against Estate, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janet Wangui Kageche
Applicant
Bendele Gachiri Kamau
Respondent
Procedural Posture
Succession Cause / Ruling on Protest to Confirmation of Grant
Legal Issues
- 1 Whether the protestor has proved his claim of KES 160,100 against the estate of the deceased.
- 2 Whether the administrator is liable to pay the claimed debt before confirmation of grant.
Ratio Decidendi
The court found that the protestor's claim was substantiated by the notebook entry, which was acknowledged by the administrator as being in the handwriting and signature of the deceased. The administrator's admission, coupled with the documentary evidence, established the debt as a valid claim against the estate. The court held that the estate must settle the debt of KES 160,100 to the protestor before the confirmation of grant could be finalized. The application for confirmation of grant was allowed, but only subject to payment of the proven debt and costs to the protestor.
Court Disposition
Protest allowed; administrator ordered to pay protestor KES 160,100 plus costs. Confirmation of grant allowed subject to payment of claim.
Orders
- The administrator shall pay the protestor KES 160,100 out of the estate of the deceased.
- The administrator shall pay the costs of this suit to the protestor.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
SUCCESSION 167 OF OF 2004
IN THE MATTER OF THE ESTATE OF STEPHEN PETER KAGECHEMUNGAI…..(DECEASED)
JANET WANGUI KAGECHE……………..…………PETITIONER
VERSUS
BENDELE GACHIRI KAMAU…….……...…………PROTESTOR
RULING
This is a Succession Suit in which the administrator applied for confirmation of grant of the estate of deceased Stephen Peter Kageche Mungai who died on 5/6/2004.
Bendele Gachiri Kariuki Kamau has filed a protest against the confirmation of the grant on the ground that he claims from the estate a sum of Shs.160,100/= he had but to the deceased during his life time.
The protest was set down for hearing when parties gave evidence saying that he lent to the deceased 160,100/= as is shown in exhibit No. 1 (a note book in which several pages are torn off and the only writing is the alleged acknowledgment dated 22. 7.2003 purportedly signed by the deceased less then one month before his death. Three days later after his death the protester confronted the widow (administrator) with his claim but the widow said she would discuss the matter after burial of deceased. The administrator never paid the money and on 7/7/2005 the protestor engaged an advocate to claim the money for him. See exhibit P. No. 2. In cross-examination the protester admitted not to have told the widow of the debt because he thought her husband had told her about it. Protestor’s witness, PW2 testified that he was asked by protestor to accompany him to the home of deceased. They were entertained and the note book was shown to the family and they asked for time to pay. This evidence contradicts that of protester. That was the evidence for protester.
The Administrator herself gave evidence and testified that the first time she met protester is when he came home after the death of her husband and she added that if the debt is proved she will pay. She testified that she had no knowledge of the debt. On cross examination she admitted that the writing in the note book was of her husband and the signature also. But she said she wanted evidence. She said she admitted the debt but did not know how much it was. She also said she did not know that the protester financed the case in Kiambu. From the evidence adduced by parties, the administrator admits that the acknowledgement of debt Exh 1 A written in the note book was of her deceased husband. She identified the signature affixed therein as that of her husband.
The protester explained how the debt was being recorded in the Notebook so that only the balance was shown in the Notebook. Since the Administrator admitted the handwriting and the signature of her husband deceased. I find what is written there to be proved. The administrator also in cross-examination said the case in Kiambu was taken up by her husband because mother was very old, she could not attend the proceedings.
It is my finding that the protesters claim is proved and I order the administrator out of the estate of deceased to pay out to the protestor shs.160,100/= as claimed together with costs of this suit. The application for confirmation of grant is now allowed subject to payment of this claim.
Orders accordingly
20th April2007
J.N. KHAMINWA
JUDGE