Automated Summary
Key Facts
The case involves a Summons for Revocation of grant dated 1st April 2014 in the succession matter of Peter Njoroge Kimani (deceased). Respondents raised a Preliminary Objection arguing the affidavit supporting the summons was improperly sworn by the applicant's advocate instead of the applicants themselves, constituting hearsay. The judge acknowledged the procedural impropriety under Section 76 of the Law of Succession Act but ruled the application not fatally defective. The court ordered the applicant to supplement the affidavit with those of Mary Muria Njoroge and Monica Wangui Kerina within 30 days of 25th September 2015, or face dismissal.
Deceased Name
Peter Njoroge Kimani
Issues
The court addressed the validity of an application for revocation of grant dated 1st April 2014, which was supported by an affidavit sworn by the applicant's advocate instead of the applicants themselves. The respondents objected, arguing the affidavit was hearsay and improperly sworn under Section 76 of the Law of Succession Act. The court ruled that while it is improper for an advocate to swear such an affidavit, the defect is curable and does not invalidate the application. The order required the applicants to supplement the affidavit with their own affidavits within 30 days to proceed.
Holdings
The court determined that the application for revocation, although improperly supported by the applicant's advocate's affidavit, is not fatally defective. The ruling requires the applicant to supplement the application with affidavits from Mary Muria Njoroge and Monica Wangui Kerina within 30 days, failing which the application will be dismissed.
Remedies
The applicant must file affidavits from Mary Muria Njoroge and Monica Wangui Kerina within 30 days, or the application will be dismissed.
Probate Status
Revocation application pending supplementation of affidavits
Legal Principles
The court addressed the admissibility of an affidavit sworn by an advocate instead of the applicants themselves in a succession matter. While acknowledging that an advocate cannot properly swear an affidavit under Section 76 of the Law of Succession Act, the court ruled that the defect was curable rather than fatal. The application was not dismissed outright but required supplementation by the applicants' affidavits within 30 days to proceed.
Succession Regime
Law of Succession Act, Cap 160, Laws of Kenya
Cited Statute
Law of Succession Act
Judge Name
W. Musyoka
Passage Text
- 5. The order I make in the circumstances is that the affidavit in support of the application dated 1st April 2014 shall be supplemented by the affidavits of Mary Muria Njoroge and Monica Wangui Kerina, to be filed within thirty (30) days of the date of this order, in default of which the application dated 1st April 2014 shall stand dismissed.
- 3. I have noted that the application is founded on the affidavit of the applicant's advocate. It is improper for an advocate to swear an affidavit supporting an application under Section 76 of the Law of Succession Act, Cap 160, Laws of Kenya, given that such applications are heard orally in most cases. He cannot therefore be called as a witness to depose to matters of fact that his clients are best suited to testify on.