BINA SANGHANI V SURESH RATILAL KHIROYA [2012] KECA 70 (KLR)
The bottom line
#Kenya's Court of Appeal annulled two probate grants because one came too early and the other ignored a valid caveat.
What this practically means
#Executive summary
#Key legal issues
#Validity of the grant issued on 16th January 2001 before expiry of the 30-day gazette notice
The grant was premature and improper; it was issued only seventeen days into the thirty-day objection period and no explanation was offered for its existence.
The gazette notice dated 29th December 2000 allowed thirty days for objectors to appear. A signed grant of probate nonetheless appeared in the file on 16th January 2001, signed by a Judge of the High Court. Nobody alleged forgery, no application for its issuance existed, and the trial Judge never resolved how it came into being. Its unexplained presence cast doubt on whether the conduct of the proceedings was above board and required resolution before any further grant was issued.
Effect of the caveat lodged on 29th January 2001 on the grant issued on 7th February 2001
The caveat was duly lodged and acknowledged; the registry should have notified the respondent and stopped issuance of the grant of 7th February 2001; that grant was therefore irregularly issued.
The caveat was filed on 29th January 2001, a receipt No. L401221 for Shs.500 was issued the same day, and the registry acknowledged receipt in writing on 30th January 2001 pursuant to Rule 15(2) of the Succession Act. The court rejected counsel's argument that the caveat was ineffective. The registry acted on the respondent's advocate's letter of 30th January 2001 but not on the caveat, which the court found inexplicable. At minimum the respondent should have been informed of the caveat and given opportunity to seek its removal.
Whether the respondent's advocate's letter of 30th January 2001 claiming expiry of the 30-day period was proper
The letter was premature because court vacation days between 21st December 2000 and 6th January 2001 are omitted in computing time under Order 49 rule 3A of the Civil Procedure Rules, applicable via Rule 63(1) of the Probate and Administration Rules.
Rule 63(1) of the Probate and Administration Rules incorporates specified Civil Procedure Rules into probate proceedings. Order 49 rule 3A (now Order 50 rule 4) excludes the period between 21st December and 6th January from computation of time. Applying that exclusion, the thirty days from the gazette notice had not expired by 30th January 2001, so the advocate's letter asserting expiry was premature and misled the issuance of the second grant.
Whether the learned Judge misdirected himself in dismissing the annulment application
Yes; both grants were improperly issued and the Judge erred in rejecting the application for annulment.
The trial Judge found no evidence of how the grant of 16th January 2001 came into existence, yet accepted the grant of 7th February 2001 as properly issued despite it having been granted nine days after the appellant's caveat was lodged and acknowledged. He also held, wrongly, that the caveat was not properly filed and that the objector should have sought prohibition. In the appellate court's view these were misdirections warranting setting aside the ruling and allowing the appeal.
Legal principles established
#- A grant of probate issued before expiry of the statutory gazette notice period is improperly and prematurely issued and cannot stand.
- Once a caveat is duly lodged and paid for in the court file, the registrar must not issue a grant without informing the respondent of the caveat and giving opportunity to seek orders for its removal; the registrar cannot decline to act on a caveat on his own initiative.
- A caveat duly lodged and paid for, with its receipt acknowledged in writing by the registry, is effective and must be acted upon.
- In computing time under probate proceedings, the court vacation period between 21st December and 6th January is excluded by virtue of Order 49 rule 3A of the Civil Procedure Rules applying through Rule 63(1) of the Probate and Administration Rules.
- Where an improper grant remains unexplained in the record, a subsequent grant should not be issued until the irregularity is resolved.
Court orders
#- 1.Orders of the High Court dated and delivered on 26th November 2004 set aside
- 2.Appeal allowed
- 3.Appellant awarded costs of the appeal and of the chamber summons in the High Court
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 785 of 2000
- Jurisdiction invoked
- First appeal against the ruling and orders of the High Court in succession proceedings (Court of Appeal appellate jurisdiction; judgment delivered pursuant to Rule 32(3) of the Court's Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BINA SANGHANI V SURESH RATILAL KHIROYA [2012] KECA 70 (KLR)", Case Analysis (2012). Civil Appeal 161 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/70/eng@2012-10-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.