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Mukesh Manchand Shah & Harish Raichand Shah v. Priyat Shah & Mona Shah

(2015) JELR 98856 (CA)

Court of Appeal  •  Civil Appeal 39 of 2014  •  17 Jul 2015  •  Kenya

Coram
Milton Stephen Asike Makhandia, William Ouko, Kathurima M'inoti

Judgement

JUDGMENT OF THE COURT

The sole issue for our consideration and determination in this appeal is the construction of Order 37 of the Civil Procedure Rules and its application to the facts presented in the High Court by an originating summons procedure.

Chandrakant Devchand Meghji Shah died tostate on 7th August, 2013 having appointed in his last will and testament dated 25th July 2011 as executors, Mukesh Manchand Shah and Harish Raichand Shah, the appellants. The deceased was survived by a daughter, Mona Shah and a son, Priyat Shah, the respondents as the only immediate beneficiaries, his wife having predeceased him. The respondents were at the time of his death minors. In the will, the deceased directed the appellants to hold in trust 40% and 60% of the residue of the estate for Mona Shah and Priyat Shah, respectively. The respondents having attained the age of majority and on the advice of their advocate formed the opinion that the will of the deceased was ambiguous and uncertain, and …

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