IN THE MATTER OF THE ESTATE OF MAKALI NZYOKA AND PUBLIC TRUSTEE [2004] KEHC 459 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

PROBATE AND ADMINISTRATION 60 OF 1997

IN THE MATTER OF THE ESTATE OF MAKALI NZYOKA

AND

PUBLIC TRUSTEE ::::::::::::::::::::::::::::::::::: APPLICANT

R U L I N G

The beneficiaries to the estate of Makali Nzyoka have raised a preliminary objection to the applicants application dated 29. 11. 2001 which application seeks revocation or annulment of Grant under Section 76 (b) and (c) of the Law of Succession Act, Order 39 (2) Rules 1 and 2 Civil Procedure Rules. The notice was filed on 16. 2.2004 in which the beneficiaries contend that the said application is incompetent and defective, bad in law and offends provisions of the law. The notice as filed does not disclose the provisions of law under which it is brought. Since a preliminary objection can be raised at any time even orally it is the courts view that the preliminary objection is not defective just because the provisions of law under which the beneficiaries seek to move the court were not cited.

The first limb of the objection to the application dated 29. 11. 2001 is that it offends provisions of Rule 44 (1) Probate and Administration Rules which provides that an application brought under Section 76 of the Law of Succession Act, shall be by summons in Form 107 and shall be issued by the registry of the particular High Court. I have had a look at Form 107 of the Probate and Administration Rule and I do agree that form of the application does not conform with Form 107. Besides this application is not issued by the Deputy Registrar as provided in Form 107. The provisions of Rule 44 Rule (1) are mandatory and the applicant should comply.

The other limb of the preliminary objection is that the application offends provisions of Rule 44 (2). It provides as follows:

“There shall be filed with the summons an affidavit of the applicant in form 14 for revocation or annulment identifying the cause and the grant and containing the following particulars so far as they are known to him ……….”

The affidavit filed in support of the application in issue does not identify the cause, that is whether it is for annulment or revocation.

The affidavit indicates that it is summons for revocation or annulment. That form is again defective as the provisions of Rule 44 (2) are mandatory the word “shall” having been used. Though the court will always look at the substance rather than the form, the form here is crucial as the court has to know what the applicant seeks. He can not beat about the bush and purport to seek annulment or revocation. He has to be specific.

It is the applicant contention that the beneficiaries have no legal status in this matter but are mere observers and hence have no locus to raise the preliminary objection and that the application dated 29. 11. 2001 is between the Applicants and Public Trustee to whom grant is confirmed on behalf of beneficiaries and that if beneficiaries are to be heard they should come by way of substantive application, and that as of now they are mere observers. I have had a chance to read the proceedings of the court on 12. 6.2003 and the ruling of the court. The court observed that though the Public Trustee holds the letters of administration, when he was about to distribute the estate an objection was filed and it is now upon the court to determine who the beneficiaries are and the court further directed that since the beneficiaries already identified by Public Trustee had not had the case determined, they have to defend their interests whether they choose to act through another lawyer or on their own or go as per information of Public Trustee.

Mrs. Nzei says that it is upon this direction by the court that the beneficiaries who the Public Trustee had identified instructed her to come on record to protect their interests. Rule 60 of Probate and Administration Rules provides that every interested person, who wishes to be heard upon or to oppose any application and has not already appeared in the proceedings, shall enter an appearance and may file such affidavits in reply. It means that the beneficiaries can come in and oppose the application field. There is no requirement that they file a substantive application as suggested by the counsel for applicants. They have come on record through representation by Mrs. Nzei. They are opposed to the application and have filed a preliminary objection on points of law. In my view the beneficiaries have a legal standing in the matter and are properly on record and have properly raised the preliminary objection. If indeed there is merit in their objection there is no way they would have filed affidavits in response to an improper application.

Another limb of the objection raised is that this application offends provisions of Rule 63 of Probate and Administration Act. Under that Rule only Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX shall apply to proceedings under the Probate and Administration Rules. The applicant has brought the application dated 29. 11. 2001 under Order 39 Civil Procedure Rules which is not one of the orders listed under Rule 63. Order 39 Civil Procedure Rules is not applicable under the said Probate and Administration Rules.

Provisions of Rule 63 are mandatory and have to be complied with.

From the foregoing observations, I do find that the application dated 29. 11. 2001 is fatally defective. A preliminary objection can be entertained by court at any stage of the proceedings and it is irrelevant that directions had been taken on how to proceed in this case. The courts will normally look at the substance other than the form but in this case the applicant will not be locked out as he can bring another application. Besides the defects in the application are so grave that it is proper that the application has to be struck out. Application dated 29. 11. 2001 is accordingly struck out with costs to beneficiaries.

Dated, read and delivered at Machakos this ………………. day of …………………….. 2004.

R. V. WENDOH

JUDGE