In re Estate of Penninah Wambui Ngugi – Deceased [2019] KEHC 8030 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

PROBATE AND ADMINISTRATION CAUSE NO. 1673 OF 2000

IN THE MATTER OF THE ESTATE OF PENNINAH WAMBUI NGUGI – DECEASED

RULING

1. The Deceased herein PENNINAH WAMBUI NGUGI (Deceased) died on 20. 4.2000.

2. The deceased was survive by the following:

1. George Ngugi Wandari – Husband

2. Elizabeth Wanja Ngugi – Daughter

3. Robert Kamau Ngugi – Son

3. From the record, there are two Succession Causes filed as follows:

(i) P&A No. 907 of 2000 filed by the husband GEORGE NGUGI WANDARI where he stated that he was the only surviving beneficiary of the Estate of the Deceased.

(ii) P&A 1673 of 2000 filed by Elizabeth Wanja stating that the deceased left an Oral Will.

4. The Application coming for consideration in this Ruling is the Summons for revocation dated 8. 11. 2002 filed by George Ngugi.

5. The Objector/Applicant stated in the Supporting Affidavit that the Respondent is his daughter and the deceased was his wife.

6. The Objector/Applicant attached the Marriage Certificate showing he got married to the deceased on 26. 8.1978 at Mombasa.

7. The Parties filed written submissions which I have duly considered.  The Objector/Applicant has submitted that the Respondent misled the Court by stating that the Objector is a brother in law to the deceased.  He stated that the deceased was his wife and the Respondent is his daughter.

8. The Objector/Applicant stated in his submissions that as the husband of the  Deceased he has priority over the Respondent.

9. The Respondent filed a Replying Affidavit dated 9. 1.2012 in response to the Application dated 8. 11. 2002 in which she denied that she was issued with a grant in Succession Cause No. 907 of 2000.

10. Upon perusing the file I find that on 5. 12. 2017 the Court had given directive on the hearing of this case in the following terms.

(i) THAT the Respondent shall within 7 days file an affidavit setting out the Residential Address of her brother Robert Kamau Ngugi wherever in the world.

(ii) THAT Penal Notice attached to Paragraph 1.

(iii) THAT the Objector to serve the Respondent and the said Robert Kamau Ngugi with a Notice of hearing of the Objection and to file a Return of Service.

(iv) THAT each party shall file its Witness Statement at least 7 days before the hearing date.

(v) THAT parties are at liberty to file and serve such documents as they wish to rely on at least within 3 days before the hearing date.

(vi) Finally the Deputy Registrar was directed NOT to give a hearing date until the relevant return of service is filed.

11. I find that the directions were not fully complied with.  The address of Robert Kamau Ngugi was filed but no witness statements were filed.

12. Upon perusing the Court file,I find that while no grant was issued in Succession cause No. 907 of 2000, the said Succession Cause No. 907 of 2000 was dismissed and closed on 8. 12. 2000 by Lady Justice Mary Angawa and the Court directed that Succession Cause No. 1673 of 2000 be the file to be used for the deceased’s Estate. I therefore find that P&A 907 of 2000 does not exist.

13. I find that the Respondent was issued with grant of Probate of Oral Will in Succession Cause No. 1673 of 2000.  The said Probate was issued on 7. 2.2001.  The summons for revocation was filed on 8. 11. 2002.

14. I find that the Respondent does not deny the allegations by the objector that he is the husband to the deceased and also her father.

15. The Respondent has not made any reference to the Oral Will Purportedly left.

16. I accordingly revoke the grant issued herein and I allow the Application dated 8. 11. 2002.

17. I direct that the Respondent and the Objector be issued with Letters of Administration.

DELIVERED, SIGNED AND DATED IN OPEN COURT THIS 3RD

DAY OF MAY, 2019

ASENATH ONGERI

JUDGE OF THE HIGH COURT OF KENYA, NAIROBI