https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12653

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **SUCCESSION CAUSE NO. 66 OF 2021** **IN THE MATTER OF THE ESTATE OF** **THE LATE ASOGA SHABANGA (DECEASED)** **BURTON ASOGA SHAVANGA ……….…………. ADMINISTRATOR/APPLICANT** **=VERSUS=** **BENJAMIN SHAHASI ASOGA ……………………………………….. RESPONDENT** **Coram: Before Justice R. Nyakundi** **M/S Osango & Co. Advocates** **Mr. Benjamin Shahasi Asoga** **RULING** 1. What is pending before this Honourable Court for determination is Summons dated 28th April 2026 brought pursuant to sections 48, 49, 83(e) & 100 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules where the Applicant/Administrator is seeking the following orders: - 2. *That this Honourable Court be pleased to amend and or rectify the Certificate of Confirmation of Grant issued on 18th February 2026 which was erroneously and by mistake drawn in the name of the Respondent herein Benjamin Shahasi Asoga instead of the Administrator/Applicant’s name Burton Asoga Shavanga.* 3. *That this Honourable Court be pleased to give effect and implement the orders made on 18th February 2026 confirming the Grant by Hon. Lady Justice J KAMAU by empowering the Deputy Registrar High Court Vihiga to execute and or sign in place of the Respondent who is not willing, ready and cooperative to execute and sign all necessary related documents including transfer forms, land control board forms and any other documents to facilitate sub division and transfer of land parcel known as TIRIKI/SEREM/147 through transmission to be shared as per the Certificate of Confirmation of Grant made on 18th**February 2026 among the listed beneficiaries and the attendance of the Respondent be dispensed with before the Land Control Board or even before the County Land Registrar Vihiga to receive all documents notwithstanding the surrendering of the original title deed.* 4. *That further this Honourable Court be and is hereby pleased to order the OCS SEREM POLICE STATION to provide adequate security during survey exercise on land parcel known as TIRIKI/SEREM/147 in the presence of the County Land Registrar and County Surveyor Vihiga County in order to implement and enforce the order made on 18th February 2026.* 5. *That the costs of this Application be in the cause.* 6. The Application is made on the following grounds on the face of it among others: - 7. *That the Administrator/Applicant was appointed as the Administrator by this Honourable Court on 17th October 2022.* 8. *That the said Grant was confirmed by this Honourable Court on 18th February 2026 and a Certificate of Confirmation of Grant issued.* 9. *That the said Certificate of Confirmation of Grant issued on 18th February 2026 was erroneously and by mistake drawn in the name of the Respondent herein Benjamin Shahasi Asoga instead of the Administrator/Applicant’s name Burton Asoga Shavanga as per the Grant issued to him.* 10. *That the said Certificate of Confirmation of Grant made on 18th February 2026 be rectified by deleting the name of Benjamin Shahasi Asoga and replaced by the Administrator/Applicant’s name Burton Asoga Shavanga.* 11. *That the Respondent has deliberately refused to sign and execute all the transfer forms and or even attend the Land Control Board for consent to partition and transmit the title numbers TIRIKI/SEREM/147 through transmission from the deceased herein to give effect to the Order made by this Honourable Court on 18th February 2026 according to the shares allocated to each beneficiary as per the Certificate of Confirmation of Grant.* 12. *That this matter is listed for Mention on 6th July 2026 to confirm compliance in accordance with Section 88 (g) of the Laws of Succession Act Cap 160 Laws of Kenya with a view of closing the file.* 13. *That the Administrator/Applicant is currently ailing and very sick undergoing treatment at Jumuia Friends Hospital Kaimosi where he attends dialysis twice a week.* 14. *That the instant application for rectification of the Certificate of Confirmation of Grant and further the Honourable Deputy Registrar of this Honourable Court be empowered to sign and execute on behalf of the Respondent herein who is unwilling and uncooperative to sign his part of all forms and or provides relevant documents including a copy of his National Identity Card, KRA PIN Certificate and Passport size photographs or any other requirements to pave way for transmission of the deceased’s estate forming land parcel known as TIRIKI/SEREM/147 as shared by this Honourable Court in the Certificate of Confirmation of Grant made on 18th February 2026.* 15. *That the attendance of the Respondent at the Land Control Board should be dispensed with since he is unwilling and uncooperative, the County Land Registrar Vihiga be directed to accept all transfer documents without the input of the Respondent who is extremely difficult to handle.* 16. *That an Order be issued by this Honourable Court directing the OCS SEREM POLICE STATION to provide adequate security during the survey exercise to partition Land known as TIRIKI/SEREM/147 in the presence of the County Land Registrar Vihiga and County Surveyor Vihiga in order to implement and enforce the Orders of this Honourable Court made on 18th February 2026.* 17. *That it is in the interest of justice that orders sought be granted as prayed.* 18. The Application is supported by the annexed Affidavit sworn by Burton Asoga Shavanga, the Administrator/Applicant who deponed as follows: - 19. *That I was appointed as the Administrator by this Honourable Court on 17th October 2022.* 20. *That the said Grant was confirmed by this Honourable Court on 18th February 2026 and a Certificate of Confirmation of Grant issued.* 21. *That the said Certificate of Confirmation of Grant issued on 18th February 2026 was erroneously and by mistake drawn in the name of the Respondent herein BENJAMIN SHAHASI ASOGA instead of my name BURTON ASOGA SHAVANGA as per the Grant issued to me.* 22. *That I humbly pray that the said Certificate of Confirmation of Grant made on 18th February 2026 be rectified by deleting the name of Benjamin Shahasi Asoga and replaced by my name Burton Asoga Shavanga.* 23. *That the Respondent has deliberately refused to sign and execute all the transfer forms and or even attend the Land Control Board for consent to partition and transmit the title numbers TIRIKI/SEREM/147 through transmission from the deceased herein to give effect to the Order made by this Honourable Court on 18th February 2026 according to the shares allocated to each beneficiary as per the Certificate of Confirmation of Grant.* 24. *That this matter is listed for Mention on 6th July 2026 to confirm compliance in accordance with Section 88 (g) of the Laws of Succession Act Cap 160 Laws of Kenya with a view of closing the file.* 25. *That I am apprehensive that unless this Honourable Court grants the prayers sought, this file will be closed.* 26. *That I am currently ailing and very sick undergoing treatment at Jumuia Friends Hospital Kaimosi where I attend dialysis twice a week. Annexed hereto and marked “BAS 3” is a copy of a report dated 28th April 2026 from Jumuia Friends Hospital Kaimosi evidencing the same.* 27. *That in the premises I swear this Affidavit in support of my instant application for rectification of the Certificate of Confirmation of Grant and further the Honourable Deputy Registrar of this Honourable Court be empowered to sign and execute on behalf of the Respondent herein who is unwilling and uncooperative to sign his part of all forms and or provides relevant documents including a copy of his National Identity Card, KRA PIN Certificate and Passport size photographs or any other requirements to pave way for transmission of the deceased's estate forming land parcel known as TIRIKI/SEREM/147 as shared by this Honourable Court in the Certificate of Confirmation of Grant made on 18th February 2026.* 28. *That the attendance of the Respondent at the Land Control Board should be dispensed with since he is unwilling and uncooperative, the County Land Registrar Vihiga be directed to accept all transfer documents without the input of the Respondent who is extremely difficult to handle.* 29. *That I also pray this Honourable Court to Order the OCS SEREM POLICE STATION to provide adequate security during the survey exercise to partition Land known as TIRIKI/SEREM/147 in the presence of the County Land Registrar Vihiga and County Surveyor Vihiga in order to implement and enforce the Orders of this Honourable Court made on 18th February 2026.* **Analysis and Determination** 1. Having considered the application and the supporting affidavit, the issues arising for determination by this Honourable Court are: - 2. *Whether the Certificate of Confirmation of Grant should be rectified.* 3. *Whether the Deputy Registrar should be empowered to execute documents on behalf of the Respondent.* 4. *Whether the Respondent's attendance should be dispensed with.* **Whether the Certificate of Confirmation of Grant should be rectified.** 1. The legal framework on the rectification of grant is provided for in section 74 of the Law of Succession Act as read with Rule 43 of the Probate and Administration Rules. Specifically, section 74 provides as follows; ***74. Errors may be rectified by Court*** *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, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.* 1. Rule 43(1) of the Probate and Administration Rules also provides as follows: *'Where the holder of a 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 time or place of the death of the deceased or, in the case of a limited grant, the purpose for which the grant was made.'* 1. Rectification of a grant of Letters of Administration is therefore limited to matters set out under section 74 of the [Law of Succession Act](https://new.kenyalaw.org/akn/ke/act/1972/14). Under this provision rectification of grant deals specifically with correction of error which the Court may order without changing the substance of the grant. This includes 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 visualized under the Section is a mistake which may occur on the face of the grant like typing errors in names of persons or the things. A rectification seeking to include properties which were not in the schedule of the assets when filing the cause and not included in the grant may not fit in the matters provided under Section 74 of the [Act](https://new.kenyalaw.org/akn/ke/act/1972/14). 2. [**In the matter of the Estate of Hasalon Mwangi Kahero**](http://kenyalaw.org/caselaw/cases/view/86693)**[2013] eKLR,** the Court stated: - *“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.”* 1. Similarly, the Court in **Re Estate of Charles Kibe Karanja (Deceased) [2015] eKLR (W Musyoka J)** interpreting section 74 of the Law of Succession Act elaborated as follows: *'From the wording of Section 74, it is plain that the same was not tailored to for amendment of such documents as certificates of confirmation of grant, but rather of grants of representation themselves, be they full or limited, confirmed or not. 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.'* 1. The Applicant has demonstrated that he was appointed administrator of the estate on 17th October 2022 and that no order has ever been made removing him from that office. The Certificate of Confirmation of Grant issued on 18th February 2026, however, bears the name of the Respondent instead of that of the Applicant. It is apparent to this Court that the inclusion of the Respondent's name in the Certificate of Confirmation of Grant was purely accidental and amounts to a clerical error. The Court record clearly identifies the Applicant as the administrator and there is no evidence suggesting that the Court intended to substitute him with the Respondent. 2. The law does not permit procedural or clerical errors to defeat substantive justice. The Court possesses jurisdiction to correct accidental slips and omissions so that its record accurately reflects the orders actually made. The rectification sought does not alter the substance of the confirmed grant or vary the beneficiaries' respective shares. It merely aligns the certificate with the grant already issued by the Court. 3. Although the application cites Sections 48, 49 and 100 of the Law of Succession Act, the power to correct such errors is also donated by **section 74 of the Law of Succession Act**, which permits rectification of grants where errors relating to names or descriptions arise. The inherent jurisdiction preserved under **Rule 73 of the Probate and Administration Rules** equally empowers this Court to make such orders as may be necessary to meet the ends of justice. 4. The Court therefore finds merit in the prayer for rectification of the Certificate of Confirmation of Grant by substituting the name **Benjamin Shahasi Asoga** with that of **Burton Asoga Shavanga**, the duly appointed Administrator. **Whether the Deputy Registrar should be empowered to execute documents on behalf of the Respondent.** 1. Section 83(e) of the Law of Succession Act obligates personal representatives to complete the administration of the estate by distributing the assets to the beneficiaries in accordance with the confirmed grant. The evidence placed before the Court shows that the Respondent has allegedly refused to execute transfer documents or cooperate in the implementation of the confirmed grant. Such conduct, if left unchecked, would defeat the very purpose of confirmation of grant and unnecessarily delay distribution of the estate. 2. The consequences of an administrator’s failure to sign completion documents were well elaborated in; **Re Estate of Wilfred Munene Ngumi (Dcd) [2020] eKLR**, where the learned judge stated: - *Section 83(g) of the Act mandates administrators of an estate to, within six months of confirmation of grant or longer period as the Court may allow, complete the administration of the estate, and to produce to the Court a full and accurate account of the completed administration. This undertaking cannot be done unless the necessary documents are executed by the relevant parties…...”* 1. The Court further cited Rule 49 of the Probate and Administration Rules which provides: - *A person desiring to make an application to the Court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported if necessary, by affidavit.* 1. It also cited Rule 73 which provides for the inherent powers of the Court to make such orders as may be necessary to meet the ends of justice, or to prevent abuse of the process of the Court. The Court while allowing the application for the Deputy Registrar of the Court to execute completion documents thus held: - *“…...It is evident from the Applicant’s affidavit in support of the application and oral arguments by her Advocate, Mr. Kahiga, that the respondents have refused to sign the necessary documents to facilitate execution of the Court’s Judgment/decree. To prevent abuse of the Court process, by the above legal provisions, this Court has inherent powers to prevent such abuse. I therefore find, and hold that the petitioner’s summons dated 23/9/2019 and filed on the 25/9/2019 to be merited………...”* **18. In re Estate of the Late Kubuta Kamara Nguuro alias Pharis Njegegu (Deceased) [2021] KEHC 9235 (KLR),** the Court held as follows: - *25. However, this Court being a succession Court has ample powers donated to it by Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to resort to, in order to meet the ends of justice. The task of administering the estate is still on the shoulders of the respondent (administrator). As I have already noted, despite the grant having been confirmed in the year 2007 and even after the subsequent amendment by Muchemi J (which included the Wang’uru Plot in the certificate), the respondent has nonetheless failed to administer the estate. I believe that Court orders ought not to be issued in vain but must be complied with. Further, the office of administrator of estate of a deceased person is an office which is built on the foundation of trust and goodwill. Where such is seen to be lacking, then the Court ought to invoke its powers to ensure that justice is done to the beneficiaries more so where the administrator puts the beneficiaries in an unenviable position.* *26. In the instant case, the administrator having failed to distribute the estate and without any valid reason, the Deputy Registrar of this Court ought to be ordered to sign all the relevant documents to effect the transfer of the properties to the beneficiaries. As such I allow prayer 5 of the application.* 1. Courts possess inherent jurisdiction to ensure that their lawful orders are not rendered nugatory through deliberate non-compliance by parties. Where a beneficiary or interested party refuses to execute documents necessary to implement a confirmed grant, the Court may authorize the Deputy Registrar to execute the requisite documents on behalf of such party so as to give effect to its judgment. 2. This Court is therefore satisfied that it is necessary to empower the Deputy Registrar of the High Court at Vihiga to execute all transfer forms, Land Control Board documents and all ancillary documents necessary to facilitate subdivision, transmission and registration of **Land Parcel No. TIRIKI/SEREM/147** in accordance with the confirmed grant. **Whether the Respondent's attendance should be dispensed with.** 1. The Court has already found that the Respondent has allegedly frustrated implementation of the confirmed grant by refusing to cooperate in the execution of documents. Since the Deputy Registrar shall execute all necessary documents on behalf of the Respondent, requiring the Respondent to attend before the Land Control Board or the County Land Registrar would serve no useful purpose and would likely occasion further delay. 2. To facilitate expeditious administration of the estate, this Court finds it appropriate to dispense with the Respondent's attendance before the Land Control Board and direct the County Land Registrar, Vihiga, to receive and process all duly executed documents signed by the Deputy Registrar in implementation of the confirmed grant. 3. Consequently, the application dated 28th April 2026 is merited and is allowed in the following terms: - 1. *The Certificate of Confirmation of Grant issued on 18th February 2026 is hereby rectified by deleting the name Benjamin Shahasi Asoga and substituting it with Burton Asoga Shavanga, the duly appointed administrator.* 2. *The Deputy Registrar of the High Court at Vihiga is hereby authorized to execute all transfer forms, Land Control Board forms and all other documents necessary to facilitate subdivision, transmission and registration of* ***Land Parcel No. TIRIKI/SEREM/147*** *in accordance with the Certificate of Confirmation of Grant where the Respondent fails or refuses to execute the same.* 3. *The attendance of the Respondent before the Land Control Board and the County Land Registrar, Vihiga, is hereby dispensed with and the Land Registrar shall accept and process all documents duly executed pursuant to this order.* 4. *The Officer Commanding Station (OCS), Serem Police Station, shall provide adequate security during the survey, subdivision and implementation of the confirmed grant solely for the purpose of maintaining law and order.* 5. *The costs of this application shall be in the cause.* 4. Orders accordingly. **DATED, SIGNED AND DELIVERED VIA CTS AND EMAIL THIS 7TH DAY OF AUGUST 2026** **……………………………………** **R. NYAKUNDI** **JUDGE**