Philip Too & another v Kimagut Arap Sang [2019] KECA 527 (KLR)
The bottom line
#Executors named in a Kenyan will must apply for probate, not letters of administration; the wrong choice made the entire grant void.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for revocation of grant was res judicata
- 2.Whether there was inexcusable delay in filing the application for annulment
- 3.Whether the learned Judge erred in revoking and/or annulling the grant
- 4.Whether the executors applied for the wrong grant, and if so, whether the wrong grant vitiated the succession process so as to make the grant a nullity
Key legal issues
#Whether the summons for annulment was res judicata
No; the earlier applications of 31st October 2001 and 23rd November 2005 were neither prosecuted to full hearing nor determined on merit, so res judicata could not apply to the summons of 2nd February 2015.
The High Court found the 2001 application was dismissed for non-attendance without hearing, and the 2005 application was withdrawn. Neither reached a full hearing or determination on the merits. The Court of Appeal endorsed these findings, and the appellants did not demonstrate any error in that conclusion. A dismissal for non-attendance is not a determination on merit capable of founding res judicata.
Whether petitioning for letters of administration with will annexed instead of probate rendered the grant a nullity
Yes. The executors named in a valid will should have petitioned for probate under section 53(a)(i); taking out letters of administration with will annexed was a wrong procedure and the resulting grant was substantively defective and void, warranting revocation under section 76(a).
Production of the will confirmed the deceased died testate. Section 53(a) of the Law of Succession Act requires that where there are proving executors, probate must be sought; letters with will annexed apply only where there is no proving executor. The executors instead proceeded under section 71, taking the succession process on a wrong course. Applying Macfoy, the defect went to substance, not a curable irregularity, so the grant was void.
Whether the allegations of forgery and concealment justified annulment under section 76(b) and (c)
No. The trial judge found no evidence of forgery of the will and no concealment of material facts, and the respondent did not specifically challenge those findings on appeal.
The trial judge found the executors petitioned in their capacity as executors, not as surviving sons, and the deceased was free to bequeath his property to any person. On appeal, Kimagut raised only the general ground that the ruling was against the weight of evidence, without supporting submissions, and the Court agreed with the trial judge's findings.
Legal principles established
#- Where a deceased dies testate and executors are named in the will, the executors must petition for probate; petitioning instead for letters of administration with will annexed is a wrong procedure that renders the grant and its confirmation substantively defective and void, and such a grant must be revoked under section 76(a) of the Law of Succession Act.
- An application dismissed for non-attendance, or withdrawn, has not been determined on merit and does not bar a subsequent application as res judicata.
Court orders
#- 1.Appeal dismissed
- 2.The finding of the learned Judge that the letters of administration and the confirmation of grant must be revoked upheld
- 3.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Succession Cause No. 357 of 1998
- Jurisdiction invoked
- First appellate jurisdiction over the High Court in succession matters (Law of Succession Act); appeal from the ruling of the High Court at Kitale
Relief refused
#Setting aside the High Court's revocation/annulment of the grant
The executors petitioned for letters of administration with will annexed instead of probate, rendering the process substantively defective and void
Declaration that the annulment application was res judicata
The earlier applications were never determined on merit
Costs
Each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we dismiss this appeal. In light of the circumstances of this matter, we find it appropriate to order each party to bear their own costs.
The consequent letters of administration and confirmation of grant issued to the Executors were substantively defective and this made the whole process void.
both applications never proceeded to full hearing and were therefore not determined on merit
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad.
Issues in the judgment
#The judgment is not signed by the judges; only typed names appear at the end, but it is styled 'JUDGMENT OF THE COURT' as a single judgment of the whole bench.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Too & another v Kimagut Arap Sang [2019] KECA 527 (KLR)", Case Analysis (2019). Civil Appeal No. 23 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/527/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.