Kisanga and Mfalila, JJ.A. and Mapigano Ag. J.A.: The record in the matter before us shows that the respondent has petitioned for, and was duly granted, probate by the High Court (Chua, J.) in respect of the estate of her father, the late Adolf D. G Ghikas. Subsequently the appellant who is also the child of the deceased, applied for a revocation of the grant to the respondent, but the High Court (Mroso, J.) refused the application.
It is from that refusal that this appeal is preferred. Before us the appellant is represented by Mr. C.M. Ngalo, learned advocate, while Mr. C.J. Maruma, learned advocate is H for the respondent.
When the appeal was called on for hearing counsel for both sides informed us that they were applying for a consent order to provide for, inter alia, a variation of the Grant of Letters of Administration issued to the respondent so as to include the appellant I
KISANGA JJA, MFALILA JJA, MAPIGANO AG. JA
as a joint grantee of Letters of Administration in respect of the estate in question. A
It was at once apparent that there was a serious problem in the matter. While the learned counsel are asking us to vary the Grant of Letters of Administration issued to the respondent, the record makes it quite plain that what was issued to the respondent B was not a Grant of Letters of Administration; it was a Grant of Probate duly issued in pursuance of the respondent's application for the same. It is therefore impossible to make the consent order as proposed by counsel for the simple reason that we cannot vary a Grant of Letters of Administration which was never issued in the first instance. C
But the matter does not end there. There is the further question of the validity of the said Grant of Probate issued to the respondent. Section 24(1) of Probate and Administration Ordinance (Cap.445) provides that: D
24-(1) Probate may be granted only to an executor appointed by the will.
And rule 33 of the Probate Rules requires, inter alia, that: E
(a) the last will of the deceased and all codicils thereto shall accompany the petition for grant of probate.
The reading of both provisions makes it abundantly clear that the petition for, and grant of, probate presuppose the existence of a will. In the instant case, however, the F purported position for probe by respondent was not accompanied by any will, and going through the entire record there is no mention whatsoever of any will left by the deceased. Indeed the very fact that counsel are asking for consent order, to vary the grant of Letters of Administration so as to make the appellant a joint grantee of G Letters of Administration clearly suggests that no will of the deceased exists or has been traced.
In the circumstances, therefore, it seems plain to us that the petition for probate by the respondent was grossly misconceived and the purported grant of the same was simply H null and void. When those matters were pointed out to the learned counsel for the parties, they readily conceded.
In the result we set aside the purported grant of probate as being null and void, and as this is entirely a family matter we make no order for costs.
I Order accordingly.
A
________________
