https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12775

In re Estate of Kuria (Deceased) (Succession Cause 20 of 2018) [2026] KEHC 12775 (KLR) (7 August 2026) (Ruling) Neutral citation: [2026] KEHC 12775 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 20 of 2018 RN Nyakundi, J August 7, 2026 IN THE MATTER OF THE ESTATE OF JOHN GERRY KURIA (DECEASED) In the matter of Ruth Nyambura Kuria Petitioner Ruling 1.Before this Court is Summons for Rectification of Grant dated 6th day of April 2023, expressed to be brought under Section 74 of the Law of Succession Act Cap 160 Laws of Kenya and Rule 43 (1) of the Probate and Administration Rules. The Petitioner seeks the following orders:a.That the Grant of Letters of Administration issued to the said Ruth Nyambura Kuria in this matter on 8th February, 2019 be rectified in the following respects as provided for by Rule 43 (1) of the Probate and Administration Rules:a.That, the deceased is erroneously stated to jointly own Eldoret Municipality Block 6/430 with another person.b.That the accurate position is that the deceased was the sole owner.c.That it is therefore necessary to rectify the grant of probate before the same is confirmed.b.That the costs of this application be in the cause. 2.The application is supported by the annexed affidavit of Ruth Nyambura Kuria who deponed as follows:a.That I am a female adult of sound mind, the Petitioner/Applicant herein hence competent to swear this affidavit.b.That I was issued with a Grant of Letters of Administration intestate on 8th February, 2019.c.That however, one of the properties listed as forming part of the deceased's assets in the Petition for Grant of Letters of Administration dated 18/05/2018, that is, Eldoret Municipality Block 6/430, is erroneously stated to be jointly owned by the deceased and another person.d.That the correct status is that the same was solely owned by the deceased and not jointly owned as indicated in the Petition.e.That given the forgoing, I am advised by my advocates that it is necessary to rectify the Grant of Letters of Administration Intestate before I can apply for confirmation of the aforesaid grant to ensure that the correct position is captured.f.That there is no objection to the rectification of the grant of letters of administration intestate granted to me by this Honorable Court.g.That as such, it would be fair and just to have the grant confirmed.h.That no person or party will be prejudiced if the orders sought herein are granted.i.That this Court has power to grant the orders and or relief sought herein Decision 3.The summon of rectification of grant in our jurisdiction is provided for under Section 74 of the Act and Rule 43(1) of the Probate & Administration Rules. What is Rectification of Grant, and When Is It Appropriate? Rectification of a grant is a legal process under Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules, which allows the Court to correct minor specific errors in a grant of representation or a certificate of confirmation. Courts have held that an error is essentially a mistake. That mistake, however, must fall within the ambit of Section 74 of the Law of Succession Act and Probate and Administration Rules 43 of the Probate and Administration Rules.Under the Law of Succession Act, rectification is appropriate only where the grant contains: Errors in names or descriptions of persons or things; Errors in setting forth the time and place of the deceased’s death; Errors regarding the purpose of a limited grant. 4.The context of this summons for rectification touching on the confirmation of grant issued on 8th February 2019 is a mixed grill of both rectification and review. What is a Review of Grant, and When Should It Be Sought?A review of a grant is governed by Order 45 of the Civil Procedure Rules, Section 80 of the Civil Procedure Act, and is imported into succession law by Rule 63 of the Probate and Administration Rules. Review is the appropriate remedy when: There is the discovery of new and important matter or evidence, which was not within the Applicant’s knowledge or could not be produced at the time of the grant’s confirmation; There is a mistake or error apparent on the face of the record (but the error does not fall within Section 74); or For any other sufficient reason. 5.These two typologies are mostly litigated post-confirmation of grant. This has necessitated the Probate Courts to interpret and construe the deferential minimum and maximum as between the doctrine of rectification with that of review as demonstrated by the following case law:In re Estate of John Omae Nyangweso (deceased) KEHC 4924 The Court held that rectification is limited to correcting errors in names, descriptions, or minor clerical details. Introducing new assets or beneficiaries must be done by applying for review or seeking a fresh confirmation of grant. “Rectification of a grant is limited to correction of errors in names or descriptions, or in setting out the time and place of the deceased’s death, or the purpose in a limited grant… Notably, inclusion of omitted beneficiaries or assets does not fall within the scope of rectification and must be canvassed through review or fresh confirmation proceedings.”In the Matter of the estate of Geoffrey Kinuthia Nyamwinga(deceased) KEHC E3745 KLR Justice W. Musyoka found that correcting clerical errors in property descriptions falls under rectification, but including omitted assets requires an application for review under Order 45 Civil Procedure Rules, as imported by Rule 63. The Court stated as follows: – “A grant and a certificate of confirmation of grant are Court orders taking the form of a certificate. The grant is made after the Court allows the petition for a grant of representation, whether it be of letters or of probate. A certificate of confirmation of grant is issued following a successful application for confirmation of the grant. The two are not pleadings, and therefore the principles which govern their rectification are not those applying to amendment of pleadings but those that apply to amendment of Court orders”.“A Court order made by a civil Court can only be amended through a review application, and not through an application for amendment of pleadings. The Law of Succession Act does not provide for amendment of pleadings in succession causes, but it does provide amendment of grants. This is through either Section 74 of the Law of Succession Act to the extent provided in that provision, or through a review application through Order 45 of the Civil Procedure Rules. Order 45 was formerly Order XLV, which is one of the provisions of the Civil Procedure Rules imported into succession practice through Rule 63 of the Probate and Administration Rules”“Where a proposed amendment of a grant cannot be dealt with under the provisions of section 74 of the Law of Succession Act, the Applicant ought to approach the Court under order 44 of the Civil Procedure Rules. A review under order 44 of the Civil Procedure Rules may be sought upon discovery of new and important matter or on account of some mistake or error apparent on the face of the record, or for any sufficient reason. The Applicant in this case should have moved the Court under this provision – order 44 of the Civil Procedure Rules on account of some mistake or error apparent on the face of the record and on the ground that there exists a sufficient reason for review of the certificate of the confirmation of the grant – the omission of the two properties from the confirmation application and the certificate of grant respectively.” 6.In Kenya review of judgment or ruling based on error apparent on the face of a record, self-evident mistake, sufficient cause and discovery of new evidence is provided for Under Section 80 of the CPA and Order 45 Rule 1 of the CPR. A review cannot be substituted for an appeal or simply because another Judge may have reach another conclusion. The other fundamental principles are that the Applicant must show sufficient cause or reasons or newly discovered evidence to have the ruling reviewed so that the decision is equitable and just. 7.The Courts have navigated these provisions as demonstrated by the following Authorities: National Bank of Kenya vs. Ndungu Njau (1996) eKLR (Civil Appeal 211 of 1996): This landmark ruling emphasizes that an error must be apparent on the record itself, not an erroneous conclusion of law or misconstruction of a statute. Wangechi Kimita and Another v Mutahi Wakabiru [1980-88] 1KAR 977: Confirmed that review can be granted for "other sufficient reasons," which need not be restricted to the discovery of new evidence or errors of record. Commissioner of Domestic Taxes vs. W.E.C Lines Kenya Limited (2022) eKLR (Ruling): Held that the phrase "or any sufficient reason" gives Courts discretion to review cases in the interest of justice, extending beyond narrow legal errors. Ithiga v Mwangi (Environment & Land Case 170 of 2014) [2025] KEELC: Defined "sufficient cause" as a "good cause" requirement that justifies reversing or modifying a Court order, imposing a burden on the Applicant to explain the necessity of the review. Justus Chania Lyunga vs. Standard Chartered Bank Limited (2013) eKLR: Addressed the scope of setting aside judgements and the threshold for mistake. 8.Rectification is a discretionary equitable remedy that allows a Court to amend a written legal instrument so that it accurately reflects the true, common intention of the parties. It corrects the recording of an agreement, not the underlying agreement itself. Some of the key elements required before a legal instrument or in our case the grant or letters of administration include inter alia the following: Common Continuing Intention: Both parties must share a single, continuing intention regarding a specific term or matter up to the exact time the instrument is executed. Outward Expression of Accord: There must be an objective, outward manifestation of agreement or understanding between the parties prior to or at the time of drafting. Discrepancy by Mistake: Due to an error or mistake in drafting, the final written document fails to accurately record that shared intention. Clear and Convincing Proof: The party seeking the remedy must provide high-standard, precise evidence (such as prior drafts or contemporaneous correspondence) leaving no reasonable doubt of the error. Fraud: Rectification may be granted if one party intentionally introduced an error or concealed a discrepancy through fraudulent behavior. Unilateral Mistake: Allowed narrowly only if one party was mistaken and the other party unconscionably knew of the mistake at execution and tried to exploit it. No Third-Party Prejudice: Courts will deny rectification if it negatively impacts the rights of bona fide purchasers or third parties who acquired rights in good faith 9.This is what the Court had in mind Sudha Singh v Munshi Ra, [1927] AIR Cal 605 in which it made the following observations; that the principle on which the Courts acts in correcting instruments is that the parties are to be placed in the position as they would have been if no error had been committed. The remedy is founded on the fact that the relevant instrument does not accord with the intention of the parties. It must be very clearly shown that the parties had come to a final and genuine agreement and that the instrument had failed to record it. The prior agreement need not necessarily be a concluded and binding contract; what must be present is a common continuing intention with regard to a particular provision or aspect of the agreement. If, on the other hand, the document has correctly represented the prior intention of the parties, rectification would serve little purpose. The rationale for granting rectification is that the common intention of the parties to a contract is not correctly represented in an agreement.6 Hence, there is a need to rectify the contract to bring the true intention of the parties to light so that they can conform to what they have agreed to do. 10.This function of rectification under Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules should be described as the correction of mistakes or errors for reason that the instrument does not accurately express the intention of the parties on inheritance rights. The remedy of rectification exists under the law to correct but not to improve an instrument. Based on the observation above it is clear that rectification cannot be adjudged unless the Court has ascertained and satisfied what the intention of the parties was and also that the words as they stand fail to express it. Therefore, there is no dispute rectification permits a document to be amended so as to reflect the agreement originally intended by the parties; it may be considered as a retrospective validation of the original transaction. If granted, rectification relates back to the time when the instrument was executed, and after rectification, the instrument is to be read as if it had been originally drawn in its rectified form. 11.For the above reasons I hereby exercise discretion to allow the application dated 6th April 2023 and a rectified grant be and is hereby issued denoting that the deceased is the sole proprietor of Eldoret Municipality/Block 6/430 absolutely. Orders accordingly. DATED, SIGNED AND DELIVERED VIA CTS & EMAIL THIS 7TH DAY OF AUGUST 2026………………………………………R. NYAKUNDIJUDGE