[2005] KEHC 37 (KLR)
The court held that the objection raised by the Petitioners to the Objectors' summons for revocation of grant was premature, as the matter was still at the inchoate stage and directions had not yet been given regarding service or the persons to be served. The process under Rule 44 of the Probate and Administration...
Source-derived case information.
- Citation
- [2005] KEHC 37 (KLR)
- Parties
- Applicant: Peter Punga Pius; Applicant: Martin Asitwa Ong’ombe; Respondent: Alfred Wena Muchenda; Respondent: Joannes Opiyo Muchenda
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 240 of 1991
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection to Summons for Revocation of Grant
- Outcome
- Objection dismissed with costs to the Objectors.
- Legal Topics
- Probate and Administration, Revocation of Grant, Procedural Compliance, Succession Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Punga Pius
Applicant
Martin Asitwa Ong’ombe
Applicant
Alfred Wena Muchenda
Respondent
Joannes Opiyo Muchenda
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection to Summons for Revocation of Grant
Legal Issues
- 1 Whether the summons for revocation of grant was fatally defective for non-compliance with Rule 44 of the Probate and Administration Rules.
- 2 Whether an objection to directions could be raised at the stage before directions were given.
Ratio Decidendi
The court held that the objection raised by the Petitioners to the Objectors' summons for revocation of grant was premature, as the matter was still at the inchoate stage and directions had not yet been given regarding service or the persons to be served. The process under Rule 44 of the Probate and Administration Rules requires that after the application is filed, the Registrar must place it before the court for directions, after which service is effected and responses are filed. Raising an objection before directions are given is procedurally improper. The court found no basis to strike out the application at this stage and dismissed the Petitioners' objection with costs to the Objectors.
Court Disposition
Objection dismissed with costs to the Objectors.
Orders
- The Petitioners' objection to the summons for revocation of grant is dismissed.
- Costs awarded to the Objectors.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Succession Cause 240 of 1991
IN THE MATTER OF THE ESTATE OF PIUS MUCHENDA PUNGA - DECEASED
AND
PETER PUNGA PIUS
MARTIN ASITWA ONG’OMBE........................................PETITIONERS
VERSUS
ALFRED WENA MUCHENDA
JOANNES OPIYO MUCHENDA.......................................OBJECTORS
R U L I N G
Summons for revocation of Grant dated 12. 6.2004 filed by Messrs Alfred Wena Muchanda and Johannes Opiyo Muchenda came up for directions on 21st October 2004. A replying affidavit had been sworn and filed by Peter Punga Muchenda on his own behalf and on behalf of his co-Petitioner, Martin A. Ongombe.
Mr. Onyino, the Advocate for the Petitioners objected to directions being given on the ground that Rule 44 of Probate and Administration Rules had not been complied with. He contended that Form No. 107 had not been followed. He submitted that the application was fatally defective and should be struck out.
On his part, Mr. Fwaya for the Objectors maintained that the application was properly before the court and that it was not proper for the petitioner’s counsel to put up the objection at that stage and in any case without notice. He invited the court to make orders under section 73 of the Probate and Administration Rules.
The substantive law relating to revocation or annulment of a Grant and the grounds thereof are contained in section 76 of the Law of Succession Act, Cap 160. Rule 44 of the Probate and Administration Rules sets out the procedure to be followed by any person desirous of applying to have a grant annulled or revoked is required to apply by summons in Form 107 which must be accompanied by an affidavit of the applicant in Form 14 (for revocation or annulment) setting out the grounds for revocation or annulment and indicating the extent if any to which the estate has been administered.
Once the application is in place, the Registrar is enjoined to place the same before the court and to give the applicant (objector) notice under Form 70 of the Probate and Administration Rules to attend court for directions as to what persons, if any, shall be served by the applicant with a copy of the summons for revocation or annulment of grant and affidavit and as to the, manner of effecting service.
After directions are given, the applicant is enjoined to serve each of the persons directed to be served with a Notice in Form 68 notifying each of them that an application for revocation and annulment of grant has been filed and directions given for service of the application and requiring such person or persons to file affidavit stating whether they support or oppose the application and the grounds therefor. Thereafter, the court sets down the matter for hearing.
In the instant application, the matter was set down for directions when the Petitioners raised objection. The process was in its inchoate stage and no objection could be brought at that stage by the Petitioners. It was premature. Directions were yet to be given on the issue and manner of service. I cannot but dismiss the objection with costs to the Objectors.
Dated at Kakamega this 11th day of March 2005
G.B.M. KARIUKI
J U D G E