https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7278

In re Estate of the Late Zakaria Murage Rithaa alias Nyaga (Deceased) (Civil Appeal E008 of 2023) [2026] KEHC 7278 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 7278 (KLR) Republic of Kenya In the High Court at Chuka Civil Appeal E008 of 2023 RL Korir, J May 26, 2026 IN THE MATTER OF THE ESTATE OF THE LATE ZAKARIA MURAGE RITHAA alias MURAGE NYAGA- Deceased Between Humphrey Mwathi Ntwiga Applicant and Charles Murithi Murage 1st Respondent Pacifica Kageni Zacharia 2nd Respondent Ruling 1.This matter relates to the estate of Zakaria Maraga Rithaa alias Murage Nyaga who died intestate. Letters of administration intestate were granted to Charles Murithi Murage and Pacifica Kageni Zakaria and a Certificate of Confirmation of Grant issued on 9th July 2024. 2.Presently for determination are two Applications: - 3.The Application dated 11th October 2025 filed by Charles Murithi Murage seeks the following orders: -i.Spentii.That the honourable court be pleased to review the judgment delivered on 27th June 2024 by deleting the name Lolaine Murage on the distribution of the deceased’s estate and who had passed on prior to the delivery of the judgment.iii.That this honourable court be pleased to rectify and/or amend the Certificate for Confirmation of grant dated 9th July 2024 and which the Applicant’s and the Respondent’s names thereof are not in conformity to their National Identity Card particulars.iv.That costs of the application be in the cause. 4.The application is premised on the sworn affidavit of Charles Murithi Murage the Applicant who deponed that judgment in the appeal was delivered on 27th June 2024 and consequently the estate was duly distributed. 5.That before the judgment was delivered one beneficiary of the estate Lolaine Murage passed on and that she was not married and had no children. 6.He stated that pursuant to the judgment, Lolaine’s share was a portion of land measuring 0.79 acres from Magumoni/Rubate/313 and 0.9 acres from LR. Magumoni/Itugururu/108. 7.The Applicant stated that the Certificate for confirmation of grant is not registrable in the lands office on account of erred names of the Applicant and the Respondent and the error in acreage on LR Magumoni/Itugururu and the demise of Lolaine Murage. 8.He stated that all the deceased’s dependants have resolved that the share of Lolaine Murage be redistributed. He proposed the Rectification and/or Amendment for Confirmation of Grant be as follows: -i.LR Magumoni/Rubate/313 measuring 4.67 acres or thereabout be distributed as follows: -a.Pacilia Kageni Zacharia to inherit 1.09 acresb.Charles Murithi Murage to inherit 1.09 acresc.Lenise Njeri to inherit 1.09 acresd.Alvin Njoka and Apolos Njeru to inherit 1.09 acres jointly and in equal sharese.Makena Nyaga, Maureen Kawira, Lena Wanja and Philomena Karwitha to inherit 1.09 acres jointly and in equal shares.ii.LR Magumoni/Itugururu/108 measuring 5.4 acres or thereabout be distributed as follows: -a.Pacilia Kageni Zacharia- 1.08 Hab.Charles Murithi Murage-1.08 Hac.Lenise Njeri -1.08 Had.Alvin Njoka and Apologos Njeru- 1.08 Ha jointly and equal shares.e.Makena Nyaga, Maureen Kawira, Lena Wanja and Philomena Karwitha- 1.08 Ha jointly and in equal shares. 9.The Respondent (in this Application) Pacilia Kageni Zacharia filed grounds of opposition dated 30th January 2025 raising the following grounds: -i.The application is incompetent, lacks merit and it’s an abuse of the court’s process.ii.The application offends the provisions of Section 74 of the Succession Act Cap 160 laws of Kenya.iii.The orders being sought are incapable of being sought in the rectification of grant and the application herein.iv.That the application seeks redistribution and rectification of grant and which orders are incapable of being issued as no letters of administration has been taken out to enable redistribution.v.That the application lacks merit and pray that it be dismissed with costs. 10.The 2nd Application Summons for Revocation dated 25th October 2024 filed by Humphrey Mwathi Ntwiga seeks the following orders: -i.That this honourable court be pleased to annul, cancel and/or revoke the Certificate of Confirmation of Grant issued on 9th July 2024.ii.That this honourable court be pleased to bequeath the share of Lolaine Murage alias Lolaine Kainda Zakaria in land parcel number Magumoni/Rubate/313 measuring 0.79 acres and Magumoni/Itugururu/108 measuring 0.9 acres to his nephew Humphrey Mwiathi Ntwiga.iii.That costs of the application be provided for. 11.The application is premised on the supporting affidavit of Humphrey Mwiathi Ntwiga, the Applicant. He deponed that Lolaine Murage alias Lolaine Kainda Zakaria (deceased) was a daughter to Zakaria Murage Rithaa alias Murage Nyaga (deceased) and a beneficiary of his estate. 12.The Applicant stated that Lolaine died intestate on 27th July 2023.That he is related to Lolaine by virtue of being her nephew who at the time of the demise of Lolaine she was not married nor did she have any children. 13.It was further averred that the court awarded Lolaine two portions of land Magumoni/Rubate/313 measuring 0.79 acres and Magumoni/Itugururu/108 measuring 0.9 acres but Lolaine died before her share was transferred to her name thus the same ought to be distributed. 14.He stated that the Lolaine had sworn an affidavit on 23rd July 2021 that in case of her demise, her share be transferred to him. 15.The 1st Respondent filed a replying affidavit dated 28th October 2024 stating that the court rendered its judgment on 27th June 2024 which judgment has not yet been appealed against. That the said judgment raised no doubts and/or ambiguities that the Applicant in the application dated 25th June 2024 had no entitlement to the estate of the late Zakaria Murage Rithaa for reasons that he was not a child of the deceased and that his father was provided for by the deceased during the deceased’s lifetime. 16.He averred that at no time did Lolaine bequeath her share to the Applicant as she died before the appeal was finalized therefore practically impossible for her to bequeath the Applicant. 17.It was further averred that the affidavit referred to by the Applicant was not signed by Lolaine and the same does not qualify to be her will. Analysis and Determination 18.The two Applications were canvassed by way of written submissions. The Applicant filed his written submissions dated 9th October 2025. The 1st Respondent filed his written submissions dated 13th October 2025 while the 2nd Respondent filed his written submissions dated 7th November 2025. 19.The Applicant raised one issue for determination being whether he is entitled to the prayers sought. 20.The 1st Respondent submitted generally on the merits of the application. 21.The 2nd Respondent raised the following issues for determination being whether the review and rectification are merited. 22.I will first consider the application dated 11th October 2024. From the Application, the grounds of opposition and the respective submissions of the parties, the issue arising for my determination is whether the review orders are merited. 23.The Applicant submitted that review applications must meet the threshold as laid down in the case of John Mundia Njoroge & 9 Others v Cecilia Muthoni Njoroge & Another [2016] KEHC 6254 (KLR) and In Re Estate of Onesmus Kibira Wanjohi (deceased) [2025] KEHC 4079 (KLR). 24.It was submitted that there is an error on the face of record as the suit property LR. No. Magumoni/Itugururu/108 appears on the certificate of official search as 5.4 hectares while the confirmation of grant indicates the same as 5.4 acres. 25.Secondly, that the name of the 1st administrator Charles Murithi Murage is captured as Charles Murithi while the 2nd administrator’s name Pacilia Kageni Zacharia is captured as Pacifica Kageni thus the court should review the grant to indicate the names as they appear on the national identity cards. 26.The Respondent submitted that the name of Lolaine (deceased) cannot be deleted in the manner sought by the Applicant. That there is no ground that warrant the court to review the orders granted on 27th June 2024. 27.She also submitted that the court is unable to rectify the errors in names that haven’t been pointed out in the application. Similarly, the acreage cannot also be rectified as provided for under Section 74 of the Law of Succession Act. 28.In regards to this issue, Humphrey Mwathi Ntwiga (the Applicant in the application dated 25th October 2025) submitted that that there was no mistake or error on the face of the record and that the summons for revocation was made without unreasonable delay. 29.Mr. Humphrey Mwathi further submitted that the Application seeks to rectify the substantive grant which is removing the name of one of the beneficiaries and her share to be re-distributed to the beneficiaries as proposed. He relied on the case of In Re Estate of Hasalon Mwangi Kahero [2013] eKLR where the court stated that an error is essentially a mistake and must relate to a name or description or time and place of the deceased’s death or the purpose of a limited grant. 30.He also relied on the case of In Re Estate of Charles Kibe Karanja (deceased) [2015] eKLR where the court noted that changes should not be made or effected through a mere amendment of the certificate of confirmation of grant. 31.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. 32.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.” 33.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.” 34.Guided by the foregoing principles, I now turn to the specific issues raised by the Applicant. 35.The first complaint relates to the acreage of LR No. Magumoni/Itugururu/108. The Applicant contends that whereas the certificate of official search reflects the acreage as 5.4 hectares, the confirmed grant erroneously indicates the same as 5.4 acres. 36.I have gone through the record and noted that the certificate of official search presented by the Applicant indicates that LR No. Magumoni/Itungururu/108 measures 5.4 acres. From the judgment of Gitari J issued on 27th June 2024, the said property is indicated as measuring 5.4 acres. Therefore, I do not see any apparent error to warrant review in respect of measurement of the said property. 37.The second complaint concerns the names of the administrators as captured in the confirmed grant. The Applicant states that his names appear as “Charles Murithi” instead of “Charles Murithi Murage” while the 2nd administrator’s name appears as “Pacifica Kageni” instead of “Pacilia Kageni Zacharia.” I note that 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.” 35.Further, Rule 43(1) of the Probate and Administration Rules empowers the court to rectify such errors upon application. 36.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.” 37.I am satisfied that the errors relating to the names of the administrators 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 administrators’ identification documents for purposes of registration and transmission. 38.I now turn to the prayer seeking deletion of the name of Lolaine Murage from the mode of distribution and redistribution of her share amongst the surviving beneficiaries. The Applicant contends that Lolaine Murage passed away on 27th July 2023 prior to delivery of the judgment on 27th June 2024 and prior to confirmation of the grant. It was further stated that she died unmarried and without children and therefore her share ought to revert to the estate for redistribution amongst the surviving beneficiaries. 39.Upon consideration of the material placed before court, I find merit in the Applicant’s position. The death of Lolaine Murage before delivery of the judgment constitutes a new and important matter which was not brought to the attention of the court at the time the judgment was rendered. Had the court been apprised of the fact of her demise before delivery of judgment, the court would not have proceeded to allocate a share of the estate directly to a deceased beneficiary. 40.The Applicant has demonstrated that the fact of Lolaine’s death prior to judgment is material and directly affects implementation of the confirmed grant. This constitutes good reason to warrant review. 41.I am persuaded that the circumstances herein satisfy the threshold for review. The continued retention of the name of Lolaine Murage in the certificate of confirmation of grant would create practical and legal difficulties in execution of the grant since the beneficiary had already passed away before the judgment and confirmation of the grant. This court cannot shut its eyes to a material fact which fundamentally affects the implementation of its orders. 42.I further take into account the uncontested deposition that Lolaine Murage died unmarried and without children. In the circumstances of this case, I am satisfied that sufficient cause has been established to warrant review of the judgment and consequential rectification of the certificate of confirmation of grant. 43.Consequently, I allow the prayer for review and direct that the name of Lolaine Murage be deleted from the mode of distribution in the judgment delivered on 27th June 2024 and the Certificate of Confirmation of Grant issued on 9th July 2024. Her share in LR No. Magumoni/Rubate/313 and LR No. Magumoni/Itugururu/108 shall revert to the estate. 44.While arriving at this conclusion, I must note that the Applicant (Charles) in his supporting affidavit dated 11th October 2025 and in his submissions, introduced the issue of the redistribution of Lolaine’s share which issue was not substantially raised in the pleadings. 45.It is trite that parties are bound by their pleadings. In Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] eKLR, the Court of Appeal held that: -“It is trite that issues for determination in a suit generally flow from the pleadings. A court cannot make a determination on issues not pleaded.” 46.Similarly, in Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR, the Court of Appeal affirmed that a court cannot introduce issues not founded on the pleadings, observing:“Parties are bound by their pleadings, which set the agenda for the trial.” 47.The upshot of the foregoing is that I find no merit in the issue the same having not been substantially pleaded. 48.I will now turn to the application dated 25th October 2025. I have considered the Summons for revocation, the responses thereto and submissions by the parties, I find one sole issue for determination being whether the Applicant has established sufficient grounds for the revocation and/or annulment of the Certificate of Confirmation of Grant issued on 9th July 2024. 49.The Applicant (Humphrey) submitted that therefore should make orders as it deems fit and just given the circumstances of the case. He relied on the case of In the Matter of the estate of Esther Wanjiru Mucheru (deceased) where the court noted that Section 76 of the Law of Succession Act is discretionary in that it gives the court discretion whether to revoke or annul a grant. 50.The Applicant submitted that it is the duty of the of an Applicant to prove that any of the grounds set out under Section 76 has been committed before the court can revoke a grant already issued. He relied on the case of Kennedy Opiche Olela v William Ogida Ochuodho & Another [2014] eKLR. 51.He further submitted that the power to revoke a grant is discretionary as provided for in the case of Albert Imbuga v Recho Kavai Kisigwa [2016] eKLR where the court held that the power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. 52.The Applicant also submitted that he had proved that he was a nephew to Lolaine and the deceased had made express wishes on what was to transpire upon her demise in regard to her of the estate. He relied on the case of Mercy Njoki Irungu v Lucy Wamutu Maruru [2016] eKLR. 53.On his part, Mr. Charles Murithi (1st Respondent) submitted that the affidavit relied on by Mr. Humphrey Mwathi is not a will. That the property in issue being LR No. Magumoni/Rubate/313 measuring 0.79 acres was not a subject of the proceedings herein. He argued that the same did not belong to Lolaine since she died before confirmation. He added that even if the same was to legally belong to Lolaine, then the same would be governed by Section 39 (c) of the Law of Succession Act. 54.The law governing revocation of grants is Section 76 of the Law of Succession Act which provides as follows: -“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.” 55.The principles governing revocation of grants have been considered in several decisions of the superior courts. In the case of Matheka and Another v Matheka [2005] KECA 2 KLR 455, the Court of Appeal held that an applicant seeking revocation must strictly bring himself within the grounds set out under Section 76 of the Act. 56.Similarly, in In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR) Musyoka J observes as follows: -“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.” 57.From the material placed before this court, the Applicant’s principal complaint is that Lolaine Murage alias Lolaine Kainda Zakaria died before transmission of her share and that her entitlement ought therefore to devolve upon him as her nephew. However, I note that the Applicant has not demonstrated any defect in the process through which the grant and certificate of confirmation were obtained. There is no allegation of fraud, concealment of material facts or misrepresentation on the part of the administrators in obtaining the confirmed grant. The application is therefore not founded upon any of the statutory grounds contemplated under Section 76 of the Act. 58.The Applicant also relied on an alleged affidavit sworn by Lolaine expressing her wishes that her share devolves to him upon her demise. I have considered the said contention. Section 11 of the Law of Succession Act provides for the formal requirements of a valid written will, including execution by the testator and attestation by competent witnesses. The alleged affidavit does not meet the threshold of a valid testamentary instrument under the Act. Consequently, the same cannot confer any enforceable proprietary rights upon the Applicant. 59.Ultimately, I find that the Applicant has failed to establish any of the grounds envisaged under Section 76 of the Law of Succession Act to warrant revocation or annulment of the Certificate of Confirmation of Grant issued on 9th July 2024. 60.Accordingly, the Summons for Revocation dated 25th October 2024 is hereby dismissed. 61.In the end, I make the following orders: -i.The grant shall be amended to bear the name Charles Murithi Murage in place of Charles Murithi and Pacilia Kageni Zacharia in place of Pasfica Kageni.ii.That the share of Lolaine Murage which had not been transmitted to her before her demise shall revert to the estate of the deceased.iii.The Application dated 25th October 2025 is declined. 62.This being a family matter, each party shall bear their own costs. RULING DELIVERED, DATED AND SIGNED AT CHUKA THIS 26TH DAY OF MAY 2026...........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Wakoko for the1st Administrator, Ms. Musyimi for the Applicant and N/A Ndeke for 2nd Administrator. Muriuki (Court Assistant).