[2017] KEHC 1377 (KLR)
The court found that the deceased had indeed subdivided the original parcel (LR NO. ABOGETA/KITHANGARI/449) into LR NOS. 1174 and 1175 during his lifetime, but the Will was not updated to reflect this. The applicant had already received LR NO. 1174, and LR NO. 1175 remained in the deceased's name. The Objector's...
Source-derived case information.
- Citation
- [2017] KEHC 1377 (KLR)
- Parties
- Applicant: Corrence Gloria Kinanu Gichuru; Respondent: Daphine Wangari Gichuru
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Separation Cause 343 of 2006
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Grant
- Outcome
- application allowed
- Judges
- A Mabeya
- Legal Topics
- Rectification of Grant, Will Interpretation, Matrimonial Property, Land Subdivision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Corrence Gloria Kinanu Gichuru
Applicant
Daphine Wangari Gichuru
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Grant
Legal Issues
- 1 Whether the Certificate of Confirmation of Grant should be rectified to reflect the correct land parcel number as per the deceased's intentions in the Will.
- 2 Whether the Objector's challenge to the Will and claim to matrimonial property precludes rectification of the grant.
Ratio Decidendi
The court found that the deceased had indeed subdivided the original parcel (LR NO. ABOGETA/KITHANGARI/449) into LR NOS. 1174 and 1175 during his lifetime, but the Will was not updated to reflect this. The applicant had already received LR NO. 1174, and LR NO. 1175 remained in the deceased's name. The Objector's challenge to the Will and claim to matrimonial property had already been addressed in a prior divorce judgment, and her application for revocation of grant had not been prosecuted for nearly a decade. The court concluded that the rectification sought was meritorious and necessary to give effect to the deceased's intentions as expressed in the Will, and that the Objector's...
Court Disposition
application allowed
Orders
- The grant of letters of administration with a will annexed issued to the Petitioner on 8th June 2007 is rectified to reflect that LR NO. ABOGETA/U-KITHANGARI/449 should read as LR NO. ABOGETA/U-KITHANGARI/1175.
- Costs in the application to be in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 343 OF 2006
IN THE MATTER OF THE ESTATE OF ALEXANDER GICHUR M’MBUI (DECEASED)
CORRENCE GLORIA KINANU GICHURU…… PETITIONER
VERSUS
DAPHINE WANGARI GICHURU ……………… OBJECTOR
RULING
1. Before me is a Summons for rectification of the Certificate of Confirmation of grant dated 18th June, 2007. It is brought under section 74 of the Law of Succession Act CAP 160 of the Laws of Kenya and Rule 43 of the Probate and Administration Rules. The Petitioner seeks the following orders:-
“(a) THAT the Grant of Letters of Administration with a will annexed issued to the Petitioner in this matter on 8th June 2007, be rectified in the following respects:-
“that the LR NO. ABOGETA/U-KITHANGARI/449 be rectified to read as L.R. NO. ABOGETA/U-KITHANGARI/1175.
(b) THAT costs in this application be in the cause.”
2. The gist of the application is that paragraph 9 of the deceased’s Will dated 8th September, 2000 devised to the applicant LR NO. ABOGETA/KITHANGARI/449, that the said land was subsequently subdivided by the deceased during his lifetime to LR NOS. ABOGETA/U-KITHANGARI/1174 and 1175 but the Will remained unchanged. The applicant further contended that LR NO. ABOGETA/U-KITHANGARI/1175 remained in the deceased’s name while LR NO. ABOGETA/U-KITHANGARI/1174 was transferred to her and that for that reason she could not be registered as the proprietor of LR NO. ABOGETA/U-KITHANGARI/1175 unless the grant herein is rectified.
3. The Application was opposed via a Replying Affidavit sworn by the Objector on 18th September, 2009 wherein she deposed, inter alia, that; she had challenged the Will because when it was made, the deceased was seriously ill and that the deceased could not have willed to the Petitioner her matrimonial property to the exclusion of the other children and herself; that according to the Will, the land which the deceased allegedly gave out was Land Parcel No. ABOGETA/U-KITHANGARI/449 which did not exist and that the Applicant cannot purport to change her documents to rhyme with what is not in the Will. She urged the Court to reject the application.
4. I have carefully considered this Application and the rival contentions by the parties. When the matter came up for hearing on 8th November, 2017, there was no appearance for the Objector. Mr. Mbogo for the Petitioner urged that the application be allowed as prayed.
5. The grounds upon which the application is based is that the deceased bequeathed the Petitioner Plot No. 449 which he later subdivided into Plot Nos. 1174 and 1175 respectively but did not change the Will; that while he transferred Plot No. 1174 to the Petitioner, Plot No. 1175 still remained in the deceased’s name.
6. The Respondent alleges that she is the wife of the deceased and that Plot No. 1175 is where they had established their matrimonial home. Firstly, that is an issue which she had raised in her application for revocation of grant filed on 2nd July, 2008. That application has remained unprosecuted for close to 10 years now. Secondly, there is a judgment on record made in the Meru CM Coourt Divorce Cause No. 25 of 2004 Alexander Gichuru M’Mbui vs Daphane Charity Wangari wherein the marriage between the deceased and the Objector was dissolved on 27th November, 2004. In this regard, it is misleading for the Objector to refer to herself as the widow of the deceased in her replying affidavit sworn on 18th September, 2008. That replying affidavit has not effectively displaced the Petitioner’s case for rectification of the grant.
7. Accordingly, I find the application dated 17th April, 2009 to be meritorious and I allow the same as prayed.
DATED and DELIVERED at Meru this 7th day of December, 2017
A. MABEYA
JUDGE