https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8957

In re Estate of Onchonga (Deceased) (Succession Cause 477 of 2015) [2026] KEHC 8957 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 8957 (KLR) Republic of Kenya In the High Court at Kisii Succession Cause 477 of 2015 Sifuna Nixon, J June 4, 2026 IN THE MATTER OF THE ESTATE OF THE LATE MAINA ONCHONGA (DECEASED) In the matter of Alphonce Ogamba Maina Petitioner Ruling 1.This ruling is on the Summons for Rectification of the Grant herein. The same which is dated 24th April 2023, is made by Alphonce Ogamba Maina the Administrator of this estate. It is supported by his Supporting Affidavit sworn on even date. 2.This Application seeks the rectification of the Certificate of Confirmation dated 22nd June 2017. Which was issued by Okwany J, pursuant to the Summons of Confirmation dated 5th June 2017. The Certificate confirmed the Grant of Letters of Administration Intestate earlier issued to the said Alphonce Ogamba Maina on 31st August 2016. 3.The Certificate was as per the Distribution Schedule contained in the said Summons. It distributed the only property comprised in then this estate, namely, Kisii/Central Kitutu/Monyerero/117 measuring 1.6 Hectares. The Confirmation had distributed the estate by giving each beneficiary their respective share. They included a Purchaser by the name Anunda O. Mandere. It shared out the land as follows:1.32ft x 100ft to Anunda O. Mandere (a Purchaser).2.The remaining portion be shared equally among the following beneficiaries-a.Salvathony Ochonga Mainab.Jackson Mokaya Mainac.Caren Kwamboka Nyakundid.Alphonce Ogamba Maina (The Administrator) 4.Conversely, the intended Rectification is seeking to give a purchaser his respective share of 0.03 Hectares; then reserve to the Administrator the remainder 1.57 Hectares and register it in his name, to hold in trust for himself and the other three beneficiaries- (a) Salvathony Ochonga Maina (b) Jackson Mokaya Maina (c) Caren Kwamboka Nyakundi. All of whom are his siblings. 5.He is by this Summons for Rectification seeking to have the earlier Certificate of Confirmation, rectified and/or reviewed, so as to effect these changes in distribution. Determination 6.From the Summons, and from the new distribution proposed by it, I have identified three issues for determination, namely:a.When may a Court allow rectification of a Certificate of Confirmation (of a confirmed grant)?b.Can Administrator instead of distributing the estate among beneficiaries, instead register the entire estate or part of it in his name to hold in trust for the other beneficiaries?c.What orders are appropriate to make in this cause at this moment? The Legitimate Scope of Rectification 7.Under the Law of Succession Act (Cap 160 Laws of Kenya), the court’s power of rectification, is provided for in Section 74 of the Act, as read with Rule 43 of the Probate and Administration Rules made thereunder. The marginal note to the Section reads “Errors to be rectified by court”, and the Section itself is worded as follows:“Errors in names and descriptions, or in setting out the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court” 8.In the Estate of Nathan Muchina Shosia (Deceased) [2025] KEHC 2571 (KLR), Chirchir J, observed that rectification of a Grant of Letters of Administration is limited to matters set out under Section 74 of the Law of Succession Act and the procedure in respect of rectification, is provided under Rule 43 of the Probate and Administration Rules. 9.There are divergent positions at the High Court, on whether the power of rectification extends to a Certificate of Confirmation. While many judges have held in the affirmative, Musyoka J, for his part, has been of the position that only the Grant itself can be rectified, and not a Certificate of Confirmation. In so holding in Re Estate of Charles Kibe Karanja (Deceased) [2015] eKLR, he observed as follows:“It goes without saying that the provisions in Section 74 are on alteration of grants of representation, not certificates of confirmation of grant. A certificate of confirmation of grant is not a grant of representation.“A party wishing to have rectified or altered or amended a certificates of confirmation of grant, need not approach the court through Section 74 of the Law of Succession Act, for the reasons that I have given above; rather they ought to apply for review of the orders made upon the application for confirmation of grant, where the alterations sought are fundamental; or for amendment of the certificate under Rule 73 of the Probate and Administration Rules to address minor errors or mistakes in the body of the certificate.“A certificate of confirmation of grant is by its nature a formal order extracted from the orders made by the court on the application for confirmation of grant. If a party wishes to have the assets of the estate redistributed or there is discovery of new assets that were not available or had not been discovered at the time of distribution, among others; it would be imprudent to seek rectification or alteration or amendment of the certificate of confirmation of grant. Such changes are fundamental, not superficial. They go to the core of the distribution. They cannot be effected without touching the orders made by the court at the distribution of the estate. Consequently, such changes cannot and should be effected through a mere amendment of the certificate of confirmation of grant.“The proper approach ought to be an application for review of the orders made at the confirmation of the grant. 10.In my considered view, once a Grant has been confirmed, and a Certificate of Confirmation issued, the Certificate is final, and has to be implemented as is, and the estate has to be distributed as set out in the Certificate. However, if it is later discovered that the Certificate has errors, those errors can be corrected through a rectification of the Certificate. Such corrections are intended to reflect the true intention of the court at the confirmation. 11.Generally, rectification should be limited to minor corrections such as:a.Correcting spelling errors in the beneficiaries’ names, but not changing the names or substituting the beneficiaries;b.Correcting errors in the descriptions or title numbers of the property;c.Correcting clerical or typographical errors;d.Aligning the Certificate or the Grant with the actual orders made by the court. 12.The question that this Court needs to determine is, whether the corrections and alterations proposed in this Summons, fall within the legitimate scope of rectification of a Certificate of Confirmation that a court has issued? I take the position that the purpose of an Application for Rectification of a Grant or a Certificate of Confirmation, is to correct mistakes, omissions or inaccuracies in the Certificate; so that it accurately reflects the decision of the court and the intended distribution of the estate. 13.Rectification cannot be used for completely overhauling or effecting radical changes to the Certificate of Confirmation, or to fundamentally change the substance of the Grant, or distribution. Neither should they be a redistribution, or be such as re-open the distribution. For instance, altering the list of beneficiaries, substituting the beneficiaries; introducing new beneficiaries; altering the list of properties; substituting properties; swapping properties; or introducing new properties that were not in the Certificate; or removing some properties from the Certificate. This to me, is beyond the scope and purpose of rectification. 14.It should generally be limited to correcting minor errors that do not go to the root of the Certificate. Those that are of a clerical, typographical or descriptive nature; and the correction which does not radically change or radically alter or diametrically upset the Certificate or Distribution Schedule. It should be such correction and rectification, as ensures that the certificate is accurate and free from clerical, typographical or descriptive errors. So that it can be properly or effectually implemented. 15.The purpose of rectification of the Certificate of Confirmation of Grant should be to enable the court correct errors appearing on the face of the Certificate and ensure it accurately reflects the Grant as confirmed by the court. It should therefore, be limited to such minor descriptive, clerical, typographical or arithmetical errors, or errors resulting from any accidental slip. It should operate in the same manner as the slip rule. 16.From the Certificate, the purported rectification is to radically change and overhaul the distribution confirmed by the court at the hearing of the summons for confirmation. The confirmation that the Summons seeks to rectify, distributed the property to beneficiaries, and to the said purchaser. Giving each beneficiary his respective share of the estate. Should an Administrator Acquire Ownership of the Estate 17.The next issue for determination is whether an Administrator can instead of distributing the estate among beneficiaries, instead register the entire estate or part of it in his name to hold in trust for the other beneficiaries? 18.The Administrator’s proposed rectification is intended to give the said purchaser his respective share, and then consolidate the remainder of the property comprising the sum total of all the beneficiaries’ shares and register it in his name, to hold in trust for them. Such rectification if endorsed by the court, is a re-distribution that tends to retain to the said purchaser his share, and remove the remainder of the land from the earlier distribution schedule contained in the Certificate of Confirmation. 19.I hold that an Administrator who is also a beneficiary is only a first among equals. His is merely a fiduciary role. By administration, he neither acquires ownership of the estate, nor substitutes the intestate. His mandate as Administrator is to collect what is due to the estate, pay the debts owed by the estate, distribute the estate to the beneficiaries, render an account, and close the books. 20.He does not by virtue of the letters of administration acquire proprietary rights in the property under administration. His role is like that of a cook. Whose mandate is to cook the food and serve it to those who are supposed to eat. He does not eat on their behalf. The ultimate goal of the Administrator is to distribute the estate. Not to take over ownership of the property and register it in his name to hold it in trust for adult beneficiaries as attempted by the Administrator in this matter. Final Disposition 21.In the end, I find that this Summons is misconceived; as the proposed rectification will go beyond the scope of rectification. It is therefore legally untenable and should be rejected. The Summons is therefore hereby dismissed accordingly. 22.This matter was filed in the year 2015. Which is almost 11 years ago. Having been in court that long. The Grant was confirmed and a Certificate of Confirmation was issued on 22nd June 2017. The Administrator is therefore hereby directed to complete the transmission of the respective share of each as per the said Certificate. This should be completed within 120 days from the date of this ruling. DATED AND DELIVERED AT KISII ON THIS 4TH DAY OF JUNE 2026.PROF (DR) NIXON SIFUNAJUDGE