https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7276

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **CIVIL APPEAL NO. E010 OF 2022** IN THE MATTER OF THE ESTATE OF THE LATE MURIANKI GAKIRI (DECEASED) MUTEMBEI GERRALD MURIANKI ……….1ST PETITIONER ELIUD MURUNGI MURIANKI………………2ND PETITIONER **RULING** 1. This matter relates to the estate of Murianki Gakiri (deceased) who died intestate on 15th June 1999. 2. Mutembei Murianki was issued with letters of administration on 9th March 2021. The dependants failed to agree on the mode of distribution and the trial court proceeded to distribute the estate vide the ruling dated 26th May 2022. 3. Dissatisfied with the ruling, the 1st Petitioner lodged an appeal and vide the judgment dated 12th October 2023 this court (GitariJ.) set aside the trial court’s ruling and proceeded with the distribution of the estate as had been proposed by the 1st Petitioner. 4. Subsequently, a Certificate of confirmation of grant dated 18th January 2024 was issued by the court with the distribution as follows: - 5. LR No. Mwimbi/Magumango/442 measuring approximately 2.02 Ha 6. Estate of the late Edwin Miriti Murianki- 0.31 Ha. 7. Eliud Murungi Murianki- 0.31 Ha 8. Herold Mugo Gerrald-0.31 Ha 9. Jemmima Kanyua Gerrald-0.31 Ha. 10. Esther Muthoni Gerrald-0.31 Ha 11. Derrick Mwenda Murianki-0.31 Ha 12. Murithi Gerrald-0.16 Ha 13. LR No. Mwimbi/Magumango/811 measuring approximately 1.41 Ha 14. Murithi Gerrald-0.15 Ha 15. Mutembei Gerrald-0.31 Ha 16. Ruth Karendi Gerrald- 0.31 Ha 17. Mwandiki Gerrald-0.31 Ha 18. Regina Kainyu Murianki- 0.31 Ha. 19. This ruling is in respect of the application dated 31st October 2024 filed by Mutembei Gerrald Murianku, the 1st Petitioner seeking the following orders: - 20. That this court be pleased to rectify/review the grant dated 18th January 2024 so as to correct names of some beneficiaries whose names were not correctly captured in the grant. 21. This court be pleased to redistribute some properties such as Mwimbi/N. Mugumango/442 and Mwimbi/N. Mugumango/811 22. Costs in the cause. 23. The Application is anchored on the grounds on the face of the Application and on the affidavit sworn jointly by the Petitioners Mutembei Gerrald Murianki and Eliud Murungi Murianki dated 31st October 2024. The Petitioners/Administrators stated that it had become difficult to distribute LR. Mwimbi/N.Mugumango/442 and Mwimbi/N. Mugumango/811 since some beneficiaries ‘official names were not correctly captured in the grant. From the Further affidavit dated 1st November 2025 deposed by Mutembei Gerrald Murianki, it was stated that three names were erroneously captured: - 24. Herold Mugo Gerrald instead of Harold Mugo Gerrad 25. Derrick Mwenda Murianki instead of Deric Mwenda Murianki 26. Mutembei Gerrald instead of Mutembei Gerrald Murianki 27. It was averred that the new proposed mode of distribution is as follows: - LR. Mwimbi/N. Mugumango/442 1. Eliud Murungi Murianki- 1.54 acres 2. Harold Mugo Gerrald- 1.35 acres 3. Derrick Mwenda Murianki-1.32 acres 4. Eliud Murungi Murianki- 0.73 acres (holding in trust for Murithi Gerald) 5. Eliud Murungi Murianki – 0.35 acres (holding in trust for Jemmima Kanyua Gerrald, Esther Muthoni Gerrald, Ruth Karendi Gerald, Regina Kainyu Murianki and Muthoni Gakiri Gerrald). LR Mwimbi/ N. Mugumango/811 1. Mutembei Gerrald Murianki – 1.57 acres 2. Mutembei Gerrald Murianki- 1.31 acres holding in trust for Mwandiki Gerald 3. Mutembei Gerrald Murianki- 0.58 acres (holding in trust for Murithi Gerald) 4. I have considered the Application, the grounds in support thereof, and the joint affidavit sworn by the Petitioners and the further affidavit by the 2nd Petitioner. 5. The basis of the Application was that it had proved difficult to implement the confirmed grant due to errors in the capture of some beneficiaries’ official names. The Petitioners have further proposed a revised mode of distribution which sets out specific acreage allocations and, in certain instances, provides that portions be held in trust for other beneficiaries. 6. At the hearing of the Application, I noted that some of the beneficiaries were present in court and expressly consented to the proposed mode of distribution. That fact is material and weighs significantly in the court’s determination. 7. I have isolated two issues for determination:- 8. Whether the orders sought for rectification/review of the grant dated 18th January 2024 are merited. 9. Whether, orders sought for redistribution are merited. 10. I begin by noting that the grant herein was confirmed on 18th January 2024. 11. The law governing review of decrees and orders is found under Section 80 of the Civil Procedure Act, Cap 21 Laws of Kenya and Order 45 Rule 1 of the Civil Procedure Rules, which provisions are applicable to succession proceedings by virtue of Rule 63 of the Probate and Administration Rules. Order 45 Rule 1 provides that a person aggrieved by a decree or order may apply for review on account of discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or for any other sufficient reason. 12. In **National Bank of Kenya Ltd v Ndungu Njau****[1997] eKLR**, the Court of Appeal held: - **“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission… The error must be self-evident and should not require an elaborate argument.”** 1. Further in **Nyamogo & Nyamogo Advocates v Kogo [2001] eKLR**, the Court explained what amounts to an error apparent in the following words: - **“An error apparent on the face of the record cannot be one which requires an elaborate argument… it must be obvious and patent.”** 1. The first prayer in the Application seeks to have the names of some of the beneficiaries altered to match the names as stated in the copies of their national identity cards attached to the Application. 2. Section 74 of the Law of Succession Act, Cap 160 Laws of Kenya grants the court power to rectify errors in names and descriptions in grants. The section provides as follows: - **“Errors in names and descriptions, or in setting forth the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court.”** 1. Further, Rule 43(1) of the Probate and Administration Rules empowers the court to rectify such errors upon application. 2. **In Re Estate of Halson Mwangi Kahero [2013] eKLR** where Musyoka J. stated as follows: - **“An error is essentially a mistake. For 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 name or in the description of a thing an “error” it would be an error if say such 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 full description of a thing or property is omitted it would be stretching the meaning of the word “error” too far to say that would amount to the error or mistake envisaged in Section 74 and Rule 43.”** 1. I am satisfied that the errors relating to the names of the mentioned beneficiaries fall squarely within the ambit of Section 74 of the Law of Succession Act and are therefore amenable to rectification. The corrections sought do not alter the substance of the distribution but merely seek to align the names appearing in the grant with the beneficiaries’ identification documents for purposes of registration and transmission. 2. In the foregoing, the prayer for rectification of the names of the afore mentioned beneficiaries is allowed. 3. The second issue for determination concerns itself with redistribution of Mwimbi/N. Mugumango/442 and Mwimbi/N. Mugumango/811. 4. In respect to this order, the proposed changes involve reallocation of acreage and the introduction of trust arrangements, which go beyond the narrow confines of rectification envisaged under section 74. 5. As earlier observed, some of the beneficiaries appeared before this Court and intimated that they had mutually consented to a redistribution of the estate. Such concurrence, by itself, does not furnish a sufficient legal basis to warrant this Court departing from the strict confines of Section 74 of the Law of Succession Act. The jurisdiction donated under the said provision is circumscribed and limited to rectification of errors contemplated therein, and cannot be invoked as a vehicle for substantive redistribution of an estate or alteration of the confirmed mode of distribution. 6. The Petitioners were granted leave to file a Further Affidavit detailing the reasons for the redistribution. The Affidavit failed to make any explanation other than that the beneficiaries had agree. 7. The extensive redistribution now sought by the parties transcends the narrow ambit of rectification and would, in effect, amount to a review and reopening of the judgment of Gitari J. issued on 12th October 2023. Such relief cannot properly be granted within the present proceedings. The appropriate recourse lies in the institution and determination of fresh summons properly inviting the Court to review, vary, or reconsider the confirmed distribution upon sufficient legal and evidential basis being laid before it. Consequently, the prayer for redistribution cannot be considered in this Application. 8. In the end, I make the following orders: - 9. That the name Herold Mugo Gerrald be rectified to read as Harold Mugo Gerrald 10. The name Derrick Mwenda Murianki be rectified to read as Deric Mwenda Murianki 11. That the name Mutembei Gerrald be rectified to read as Mutembei Gerrald Murianki 12. The order for redistribution is struck out. 13. This being a family matter, each party shall bear their costs. **Ruling delivered, dated and signed at Chuka this 26th day of May, 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **Ruling delivered in the presence of Mr. Kinyanjui holding brief Mr. Mutegi for the Petitioners, and in the absence of the Respondents. Muriuki (Court Assistant).**