https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7726

In re Estate of Ngari Mwai (Deceased) (Succession Cause 111 of 2003) [2026] KEHC 7726 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 7726 (KLR) Republic of Kenya In the High Court at Nyeri Succession Cause 111 of 2003 DKN Magare, J May 26, 2026 IN THE MATTER OF THE ESTATE OF NGARI MWAI (DECEASED) In the matter of Benard Mwai Ngari Applicant Ruling 1.This Ruling is in respect of the Summons for Rectification of Grant dated 19.5.2025 and filed by the Applicant. 2.The Summons seeks for the following reliefs:a.The Certificate of Confirmation of Grant issued on 27.6.2020 be rectified to reflect Stephen Mwangi Muriithi is holding the property in trust for himself and the following siblings:i.Douglas Muthiro Muriithiii.Peter Ngari Muriithib.The rectified certificate of conformation of grant to read Stephen Mwangi Muriithi as trustee for himself and Douglas Muthiro Muriithi and Peter Ngari Muriithi instead of Stephen Mwangi Mriithi (as trustee for his siblings).c.The rectified grant be used for the purpose of effecting transfer of the estate of the deceased and the Land’s Office.d.The costs be provided for. 3.The application is supported by the Affidavit of Benard Mwai Ngari sworn on 19.5.2025 reiterating the grounds of rectification. The application is unopposed. Analysis 4.The issue before me for determination is whether the grant issued on 27.6.2020 should be rectified in the manner desired by the Applicant. 5.Rectification of grant is provided for in Section 74 of the Law of Succession Act, Cap 160 Laws of Kenya and Rule 43(1) of the Probate & Administration Rules. Section 74 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, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly. 6.Rule 43(1) provides:-Where the holder of the grant seeks pursuant to the provisions of section 74 of the Act rectification of an error in the grant as to the names or descriptions of any person or thing or as to the time and place of death of the deceased or, in the case of a limited grant, the purpose for which the grant was made, he shall apply by summons in Form 110 for such rectification through the registry and in the cause in which the grant was made. 7.The errors that can be corrected through rectification include errors in names, description of any person or thing or an error as to the time or place of death of the deceased or the purpose for which a limited grant was issued. As was observed by Muchemi J in In re Estate of Kahiga Mwathi (Deceased) [2022] eKLR, rectification of grant of letters of administration is limited to matters set out in section 74 of the Law of Succession Act in principal to corrections of error which the court may order without changing the substance of the grant. These include errors in names, description of any person or thing or an error as to the time or place of death of the deceased or the purpose for which a limited grant was issued. An error which is envisaged under the section is a mistake which may occur on the face of the grant like typing errors in names of persons or things. As was held in the matter of the Estate of Hasalon Mwangi Kahero [2013] eKLR:“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. 8.The nature of the errors sought to be rectified herein relate to the amendment of the grant to read Stephen Mwangi Muriithi as trustee for himself and Douglas Muthiro Muriithi and Peter Ngari Muriithi instead of Stephen Mwangi Mriithi (as trustee for his siblings). In the Matter of the Estate of Geoffrey Kinuthia Nyamwinga (Deceased) [2013] eKLR, the court stated thus:“The law on rectification or alteration of grants is Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules….What these provisions mean is that errors may be rectified by the court where they relate to names or descriptions, or setting out the time or place of the deceased’s death. The effect is that the power to order rectification is limited to those situations, and therefore the power given to the court by these provisions is not general….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.” 9.It is the Applicant’s case that the rectification is desired to enable transfer of the estate. The rectification sought by the Applicant is also not opposed and is noncontentious. I will therefore allow the rectification to facilitate distribution of the estate without any contrary information that persons who are not beneficiaries are being introduced. In the case of Charles Mutua M’anyoro vs. Maria Gatiria [2009] eKLR it was held that:“…in mandatory language, the proviso to section 71 of the Law of Succession Act enjoins the court, in case of intestacy, to confirm the grant only if it is satisfied as to the respective identities and shares of all persons beneficially entitled to the estate. Another safeguard in ensuring that only the deceased person’s dependants benefit from the estate is in Rule 40(3) of the Probate and Administration Rules which requires that before a grant can be confirmed the particulars of the dependants must be disclosed…It is imperative under the rules that all the dependants be in attendance during the hearing of the application for confirmation save where the dependants have signed a consent in writing. See Rule 40(8).” 10.The net effect is that I partly allow the application and rectify the grant. Determination 11.In the upshot, I make the following orders:i.The Certificate of Confirmation of Grant dated 27th June 2020 is hereby rectified as follows:a.Stephen Mwangi Muriithi, Douglas Muthiro Muriithi and Peter Ngari Muriithi to share - Githi/Kirerema/Kihora/356 -6.6 acres equally.b.Stephen Mwangi Muriithi, Douglas Muthiro Muriithi and Peter Ngari Muriithi) to share Githi/Kiharo/73 - 4.8 acres equallyc.Bernard Mwai Ngari - 4.8 acres absolutely out of Githi/Kiharo/73.ii.Stephen Mwangi Muriithi, Douglas Muthiro Muriithi and Peter Ngari Muriithi) - money held in the public trustee to be share equally.iii.Each party shall bear own costs.iv.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 26TH DAY OF MAY, 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Applicant presentCourt Assistant – Martin