[2018] KEHC 5696 (KLR)
The court found that the application for rectification of grant was not supported by the unanimous consent of all beneficiaries, as required for a change in the mode of distribution. The administrator's attempt to alter the distribution based on the alleged wishes of the deceased could not be accommodated under the...
Source-derived case information.
- Citation
- [2018] KEHC 5696 (KLR)
- Parties
- Applicant: Elizabeth Ngunju Kariithi; Respondent: Paul Wanjohi Kariithi; Respondent: Mwangi Kariithi Gaitho
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 815 of 2012
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Grant
- Outcome
- application rejected
- Judges
- NA Matheka
- Legal Topics
- Succession, Rectification of Grant, Distribution of Estate, Consent of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Ngunju Kariithi
Applicant
Paul Wanjohi Kariithi
Respondent
Mwangi Kariithi Gaitho
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Grant
Legal Issues
- 1 Whether the summons for rectification of grant dated 9th March 2016 is merited.
- 2 Whether the proposed mode of distribution can be effected through rectification of grant without unanimous consent of all beneficiaries.
- 3 Whether the wishes of the deceased regarding distribution can be implemented via rectification of grant.
Ratio Decidendi
The court found that the application for rectification of grant was not supported by the unanimous consent of all beneficiaries, as required for a change in the mode of distribution. The administrator's attempt to alter the distribution based on the alleged wishes of the deceased could not be accommodated under the limited scope of rectification provided by Section 74 of the Laws of Succession Act and Rule 43 of the Probate and Administration Rules. The court further noted that the administrator's share was not properly delineated, and the ongoing disputes among beneficiaries indicated unresolved substantive issues that could not be addressed through rectification. Consequently, the...
Court Disposition
application rejected
Orders
- The application dated 9th March 2016 for rectification of grant is rejected.
- No orders as to costs.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO.815 OF 2012
IN THE MATTER OF THE ESTATE OF KARIITHI GAITHO GACHAU (DECEASED)
ELIZABETH NGUNJU KARIITHI.....................................APPLICANT
VERSUS
PAUL WANJOHI KARIITHI....................................1ST RESPONDENT
MWANGI KARIITHI GAITHO .............................2ND RESPONDENT
R U L I N G (2)
On 27. 2.2017, I delivered the ruling with respect to the summons for rectification of grant dated 9th March 2016 in which the administrator sought to change the mode of distribution of the estate from that which appeared in the certificate of confirmation of grant issued on 16th January 2014, which indicated that the property L.R NAROMORU/KIAMATHAGE/BLOCK 1/193 be shared equally among all the beneficiaries.
Having found that the newly proposed mode of distribution was not supported by the consents of all parties, I made the following orders:-
1. The petitioner to match each of the intended portions to each of the intended beneficiaries.
2. The petitioner to reveal the source of map annexed to the affidavit.
3. Each of the beneficiaries to personally appear in court on the 23rd March 2017 to confirm their consent to the new mode of distribution.
In reaction to those orders the petitioner filed a supplementary affidavit sworn on 23rd March 2017 to the effect that all she was doing was to share the estate according to the occupation on the ground by each beneficiary because the deceased had distributed the estate before he died, and she did not want to ‘alter’ the already established boundaries.
She annexed a consent dated 30th January 2014, and the sketch now bearing the stamp of Kamau Murimi, Surveyor for Homeland Surveyors showing the following distribution instead of 0. 84 HA each: -
1. 0. 73 HA – Mwangi Kareithi Gaitho
2. 0. 49 HA – Elizabeth Ngunju Kareithi
Lucy Gathoni Kareithi
3. 0. 14 HA – Elizabeth Ngunju Kareithi
Lucy Gathoni Kareithi
4. 0. 70 HA - Paul Wanjohi Kareithi
5. 1. 31 HA- James Maina Kareithi
This was followed by an opposing replying affidavit by Paul Wanjohi Kariithi and Mwangi Kariithi Gaitho stating that they had not been served with the Summons for Revocation of Grant of 9th March 2016, and only became aware of the proposed changes when the court directed the presence of all the beneficiaries on 23rd March2017. They denied giving any consent to the new mode of distribution, which they rejected for being unfair and merely intended to benefit some of the beneficiaries.
The administrator now filed a further affidavit restating that the estate was being distributed in accordance with the wishes of the deceased.
I have carefully considered the contents of the affidavits.
The only issue for determination is whether the summons for rectification of the grant is merited.
My concerns about the multiple attempts to rectify the grant on varying grounds are expressed in the ruling of 27th February 2017.
The administrator had given the impression that the application to rectify was not opposed. However, it is clear that it is not unanimous, and is subject to challenge. She is introducing issues that cannot be settled through summons for rectification.
Section 74 of the Laws of Succession Act, as read with Rule 43 of the P&A Rules provides for rectification of errors in names and descriptions, time and place of deceased’s death, purpose of a limited grant. The issue of the alleged wishes of the deceased cannot be dealt with by way of rectification of grant.
The administrator and some of the other beneficiaries are not in agreement as to the share of each of the beneficiaries. Of concern to this court is that the administrator’s share, as the window of the deceased is lumped together with one of the other beneficiaries and has not been given her own share or any provision made for her as is expected by law.
The administrator speaks of the wishes of the deceased. Some of the beneficiaries speak of an agreement to share the estate equally. It is obvious in the face of it that the administrator has been unable to distribute the estate as per the confirmed grant. All these efforts to rectify the grant, in my view are a window to underlying issues that were not addressed, and which cannot be addressed through her application for rectification of the grant.
The application is rejected. Should the administrator find that she cannot administer the estate, she is free to seek the revocation of the grant.
The application dated 9th March 2016 is rejected.
No orders as to costs
Dated, delivered and signed at Nyeri this 12th day of April, 2018.
Mumbua T. Matheka
Judge
In the presence of:-
Court Assistant- A. Atelu
Ms.Mwangi holding brief for Mr. Kiminda Advocate for respondents.
Mumbua T.Matheka
Judge