https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12994

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU SUCCESSION CAUSE NO.53 OF 2016 IN THE MATTER OF THE ESTATE OF CECILIA WANJIRU KIBICHE (DECEASED) (On Summons for Further Rectification of Grant dated 16th April 2026) RULING INTRODUCTION 1. Before the Court for determination is the Summons for Further Rectification of Grant dated 16th April 2026, brought by the Administrators pursuant to Section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules. 2. The Administrators seek the following orders:- a) Spent. b) THAT the Rectified Certificate of Confirmation of Grant issued herein on 25th February 2026 be further rectified so as to: i. Align the names of the beneficiaries with the names appearing in their respective National Identity Cards; and HC SUCC. NO.53 OF 2016 RULING - Page 1 of 11 ii. Specify that Plot No. 32 Kwambira and LIMURU/KAMIRITHU/538/62 “A” are separate and distinct properties. c) THAT the costs of this application be borne by the Estate. 3. The application is supported by the affidavit of Alice Wamaitha alias Alice Wamaitha Mwangi sworn on 16th April 2026. 4. The record shows that a Grant of Letters of Administration Intestate in respect of the Estate of Cecilia Wanjiru Kibiche was issued on 4th August 2005 to Alice Wamaitha and Harriet Wanjiru Githinji. The subsequent confirmation and distribution of the Estate became the subject of prolonged proceedings before the High Court and, thereafter, the Court of Appeal. 5. By a Ruling delivered on 23rd September 2016, the High Court determined the beneficiaries of the Estate and the assets available for distribution. The Administrators, being dissatisfied with part of that determination, lodged Nairobi Civil Appeal No. 222 of 2018 before the Court of Appeal. 6. In its Judgment delivered on 5th July 2024, the Court of Appeal allowed the appeal in part. The appellate court identified Alice Wamaitha, Eliud Gakuha Kibiche, Stella Cecilia Wanjiku, Cecilia Wanjiru, Loise Kanyi, Faith Nyambura and Eliud Charles Kibiche as the persons entitled to benefit from the Estate. It further directed that the assets specified in the judgment be shared equally among HC SUCC. NO.53 OF 2016 RULING - Page 2 of 11 them and that the shares of Loise Kanyi and Eliud Charles Kibiche, who were then Minors, be held in trust by Alice Wamaitha until they attained the age of eighteen years. 7. Pursuant to the Judgment of the Court of Appeal and the subsequent proceedings in this cause, the Court issued the Rectified Certificate of Confirmation of Grant dated 25th February 2026. 8. The Administrators now contend that the implementation of the confirmed grant has been impeded by discrepancies between the names appearing in the certificate and those appearing in the National Identity Cards of the beneficiaries. They further contend that the manner in which the schedule to the certificate is presently drawn gives the impression that Plot No.32 Kwambira and LIMURU/ KAMIRITHU/538/62 “A” constitute one and the same property, whereas they are distinct assets. ANALYSIS AND DETERMINATION 9. The issues falling for determination are:- a) Whether this Court has jurisdiction to rectify the grant and the certificate issued upon confirmation. b) Whether the corrections sought in respect of the names of the persons appearing in the certificate and the separate listing of Plot No.32 Kwambira and LIMURU/ KAMIRITHU/538/62 “A” fall within the permissible scope of rectification. HC SUCC. NO.53 OF 2016 RULING - Page 3 of 11 10. The jurisdiction of this Court in respect of rectification of grants is derived from Section 74 of the Law of Succession Act. The provision empowers the Court to correct errors appearing in a grant of representation and expressly permits the rectification of errors in names and descriptions, errors relating to the time and place of the deceased’s death, and errors concerning the purpose of a limited grant. The section further recognises that a grant of representation may be altered and amended accordingly, whether before or after confirmation. 11. The procedural mechanism for invoking that jurisdiction is provided under Rule 43(1) of the Probate and Administration Rules. The rule permits the holder of a grant to apply by summons for the rectification of an error as to the name or description of a person or thing, the time or place of the deceased’s death, or the purpose of a limited grant. Under Rule 43(3), the Court retains discretion either to determine the application without attendance or to direct that the matter be heard upon notice to such persons as the Court may consider appropriate. 12. The jurisdiction conferred by Section 74 and Rule 43 is, however, circumscribed. It is a jurisdiction intended to correct errors, mistakes, or mis-descriptions in a grant or certificate and not one designed to effect substantive alterations to the orders of confirmation, the identity of beneficiaries, or the distribution of the Estate. The question falling for determination, therefore, is whether the corrections sought in the present application are merely rectificatory in nature or whether, in HC SUCC. NO.53 OF 2016 RULING - Page 4 of 11 substance, they seek to alter matters already conclusively determined by the Court. 13. The scope and limits of this jurisdiction have been considered by the courts. In In the Matter of the Estate of Hasalon Mwangi Kahero [2013] KEHC 6071 (KLR), the Court held that:- “An error is essentially a mistake. For the purposes of Section 74 and Rule 43, it must relate to a name or description or time and place of the deceased's death, or the purpose of a limited grant. Is an omission of a name or in the description of a thing an error? It would be an error if say a word in the full name of a person is omitted or a word or number or figure in a description is omitted. But where the full name of a person or a full description of a thing or property is omitted, it would be stretching the meaning of the word “error” too far to say that that would amount to the error or mistake envisaged in Section 74 and Rule 43. In this case it cannot be said that the property was omitted by error or mistake as the administrators did not know of the property at the time they sought letters and confirmation thereof. The omission of the property is a matter that does not fall under the purview of Section 74 of the Law of Succession Act.” 14. The principle emerging from the above decision is that the jurisdiction of rectification is limited to correcting errors, mistakes, or mis- descriptions in matters already forming part of the grant or certificate. It HC SUCC. NO.53 OF 2016 RULING - Page 5 of 11 does not extend to introducing new property, altering the substance of a grant, or effecting changes that would amount to a reconsideration of the distribution of an estate. 15. In In the Matter of the Estate of Geoffrey Kinuthia Nyamwinga (Deceased) [2013] KEHC 3745 (KLR), the Court permitted the correction of an erroneous digit in a land reference number on the basis that the amendment merely corrected the description of an existing asset. The Court distinguished such correction from the introduction of an omitted property, holding that the latter would transcend the limited jurisdiction contemplated under Section 74 and Rule 43. 16. More recently, in In Re Estate of Lekinyot Ole Lanke (Deceased) [2024] KEHC 2486 (KLR), the Court rectified the description of an estate property where the amendment served only to provide its proper and complete description without altering the substance of the Judgment. The Court declined, however, to invoke the rectification procedure where the effect of the application would have been to confer a beneficial entitlement upon a beneficiary, holding that such a request concerned the substance of distribution rather than the correction of an error. The decision is therefore apposite in demonstrating that while the proper description of an asset already adjudicated upon may be rectified, a change affecting entitlement or distribution falls outside the scope of Section 74 and Rule 43. HC SUCC. NO.53 OF 2016 RULING - Page 6 of 11 17. In In Re Estate of Charles Kibe Karanja (Deceased) [2015] KEHC 2067 (KLR), the Court observed that a Certificate of Confirmation of Grant is a formal record of the orders made at confirmation and has no independent existence apart from those orders. The Court held that fundamental alterations, including redistribution of the estate or introduction of newly discovered assets, require an appropriate application for review or other substantive relief. The Court nevertheless recognised that errors of a clerical or transcriptional nature, including misspelt names, misdescription of property or persons, and extraction mistakes appearing on the certificate, may properly be corrected under the Court’s inherent jurisdiction preserved by Rule 73 of the Probate and Administration Rules. 18. Turning to the present application, the National Identity Cards exhibited as “AW 1” provide documentary confirmation of the names sought to be reflected in the certificate. There is no evidence before the Court that the corrected names relate to different persons from those whose entitlement to the Estate has already been determined. Rather, the affidavit of Alice Wamaitha alias Alice Wamaitha Mwangi links each name appearing in the certificate to the corresponding name appearing in the relevant identity document. 19. The correction from Alice Wamaitha to Alice Wamaitha Mwangi, together with the corresponding amendments relating to Harriet Wanjiru Githinji and the beneficiaries, neither introduces, removes, nor substitutes any person. The amendments merely provide the accurate description of the same administrator and beneficiaries HC SUCC. NO.53 OF 2016 RULING - Page 7 of 11 whose identities and beneficial interests have already been determined by the Court. They therefore fall within the statutory ambit of Section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules as corrections relating to the names and descriptions of persons. 20. Similarly, the removal of the description “minor” in respect of Loise Kanyi and Eliud Charles Kibiche, and the inclusion of their full surnames as reflected in their identity documents, does not occasion any alteration to their beneficial entitlement. It is a correction of description to reflect their present identity and status. For avoidance of doubt, nothing in this determination varies, modifies, or interferes with the shares allocated by the Court of Appeal. 21. With regard to Plot No. 32 Kwambira and LIMURU/KAMIRITHU/ 538/62 “A”, the record demonstrates that the two properties were treated as distinct assets in the proceedings leading to confirmation of the grant. The earlier confirmation record separately identified Plot No. 32 from LIMURU/KAMIRITHU/538/62 “A”, while the ownership documents exhibited as “AW 2” similarly relate to Plot No. 32 as a separate property. The rectified certificate of confirmation of grant issued on 25th February 2026, however, presents the two descriptions together in a manner that may reasonably be construed as referring to a single asset. 22. The separation of the two entries is therefore not an attempt to introduce an additional asset into the Estate or to reopen the HC SUCC. NO.53 OF 2016 RULING - Page 8 of 11 distribution already determined by the Court. It neither increases the value or composition of the Estate, alters the beneficiaries, nor affects the equal shares directed by the Court of Appeal. Rather, it constitutes a correction of the manner in which assets already forming part of the adjudicated Estate have been described and extracted in the certificate. The amendment accordingly falls within the permissible scope of rectification as an error in the description of a thing and as an extraction error capable of correction by the Court. 23. The requested separation is, in the circumstances, a faithful correction of the record. It ensures that the certificate accurately reflects the assets previously identified and adjudicated upon, without reopening the merits of the succession proceedings or purporting to vary, amend, or interfere with the Judgment of the Court of Appeal. 24. On the issue of costs, Rule 69 of the Probate and Administration Rules vests the Court with discretion in that regard. The present application was necessitated by the need to correct the formal instrument through which the Estate is to be transmitted and distributed. In the circumstances, the Court considers it appropriate that the costs of the application be borne by the Estate. 25. Accordingly for the foregoing reasons, the Summons for Further Rectification of Grant dated 16th April 2026 is well founded in both law and fact and ought therefore to succeed. Those Summons are allowed, and consequently:- a) The Rectified Certificate of Confirmation of Grant issued on 25th February 2026 is further rectified by:- HC SUCC. NO.53 OF 2016 RULING - Page 9 of 11 i. Aligning the names of the beneficiaries with their names as they appear on their respective Kenyan National Identity Cards in the manner and style set out at Paragraph 3 of the Supporting Affidavit of Alice Wamaitha alias Alice Wamaitha Mwangi dated 16th April 2026 and as supported by annexure “AW 1” thereto; and, ii. Specifying that PLOT NO.32 KWAMIBIRA is a separate and distinct property from LIMURU/ KAMIRITHU/538/62 “A” and consequently listing the two properties separately and distinctly. b) The costs of the Application shall be borne by the Estate. Orders accordingly. DATED, SIGNED AND DELIVERED AT KIAMBU THIS 14TH DAY OF JULY 2026. _______________________________________ BAHATI MWAMUYE MBS JUDGE HC SUCC. NO.53 OF 2016 RULING - Page 10 of 11 HC SUCC. NO.53 OF 2016 RULING - Page 11 of 11