In re Estate of Hanna Mudavadi alias Hannah Atsianzale Mudavadi (Deceased)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **SUCCESSION CAUSE NO. E005 OF 2025** **IN THE ESTATE OF THE LATE HANNAH MUDAVADI ALIAS HANNAH ATSIANZALE MUDAVADI – DECEASED** **AND** **WYCLIFF MUSALIA MUDAVADI ……………………………………….. PETITIONER** **Coram: Justice R. Nyakundi** **M/S Emily & Associates Advocates** **M/S Midikira Advocates LLP** **M/S V. Chokaa & Co. Advocates** **RULING** **Background** 1. This Court presided over by Judge coordinate having considered the procedural protocols in the making of the grant of letters of administration intestate estate of one Hannah Mudavadi alias Hannah Atsianzale Mudavadi issued the appropriate legal instrument in context on certificate of partial confirmation of grant dated 15th October 2025 which expressly stated as follows: **Schedule:** | | | | | --- | --- | --- | | **NAME** | **ASSET** | **SHARE** | | Wycliffe Musalia Mudavadi | Transnzoia/Kapkoi/798 | Equally | | Geoffrey Kegode Mudavadi | Transnzoia/Kapkoi/798 | 1. From this operative instrument an application was made before this Court by one Wycliffe Musalia Mudavadi as the Administrator of the Estate to have the Court amend the details on the administration of the intestate estate couched in the following language: 2. That Form P&A be amended to remove the names Geofrey Kegode Mudavadi as a proposed administrator. 3. That the sechedule of properties in Form P&A 5 be amended to delete property LR TRANS NZOIA/KAPKOI/1798 from the schedule and replace with the following properties: 4. North Maragoli/Chamakanga/1169 5. North Maragoli/Bugina/132 6. North Maragoli/Bugina/133 7. That the list of beneficiaries in Form P&A 5 be amended to delete the following: 1. Catherine Kilwatso Mudavadi 2. Jane Mudavadi 3. Reba Munyasa Mudavadi 4. Imali Mudavadi 5. Mudavadi Raymond Ongadi 6. That the beneficiaries to benefit from the estate to read as follows: 7. Jean Mudavadi 8. Ebby Mudavadi 9. Margret Mudavadi 10. Lydia Mudavadi 11. Getrude Mudavadi 12. Wycliff Musalia Mudavadi 13. That in support of the application this court considers his own affidavit in which he asserts as follows: 14. *THAT I am the petitioner herein thus competent enough to swear this affidavit.* 15. *THAT I together with the co-petitioner, we filed for grant of letters of administration intestate for the Estate of the Deceased.* 16. *THAT it has become necessary to amend the petition to ensure that it accurately reflects the true position regarding the estate and the persons entitled thereto.* 17. *THAT one of the proposed administrators, namely GEOFFREY KEGODE, no longer wishes to act as an administrator of the estate and has accordingly been removed from the petition.* 18. *THAT upon a further review of the petition, it was discovered that some names were inadvertently included among the survivors of the deceased, without being children or beneficiaries of the deceased's estate and were therefore erroneously listed.* 19. *THAT further, additional assets belonging to the deceased have since been identified and ought to be included in the schedule of assets forming part of the estate.* 20. *THAT fresh consent(s) have been obtained from the persons entitled to apply for the grant following the proposed amendments.* 21. *THAT the proposed amendments are made for the purpose of placing the correct and complete information before this Honorable Court.* 22. *THAT the proposed amendments are made in good faith and are intended to ensure that the petition contains complete and accurate information regarding the estate of the deceased.* 23. *THAT no party shall suffer any prejudice if the amendments sought are allowed.* 24. The application is supported by the consent signed by the beneficiaries namely: 25. Jeans Mudavadi 26. Ebby Mudavadi 27. Margaret Mudavadi 28. Lydia Mudavadi 29. Getrude Mudavadi 30. Wycliffe Musalia Mudavadi 31. On consideration of the matter it is appropriate to state the specifics of the law; Thus the **fundamental rule across common law jurisdictions is that courts possess wide discretionary power to allow the amendment of court processes and legal instruments at any stage of the proceedings before judgment, provided the amendment is made in good faith and does not cause an incurable injustice or prejudice to the opposing party.** 32. The import of the Civil Procedure Act and Rules within the framework of Section 100 of the Act and Order 8 Rule 3 of the Rules provides the necessary anchor on amendments as envisioned by the Applicant. For instance Order 8 Rule 3 of the Rules provides as follows: 33. *“Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.* 34. *Where an application to the court for leave to make an amendment such as is mentioned in sub-rule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such sub-rule if it thinks just so to do.* 35. *An amendment to correct the name of a party may be allowed under sub-rule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.* 36. *An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under sub-rule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued.* 37. *An amendment may be allowed under sub-rule (2) notwithstanding that its effect will he to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.”* 38. The Superior Courts have spoken at various levels on grant of this remedy on amendment of pleadings or legal instruments which forms part of the justiciable process in the administration of justice. The Court in *Institute for Social Accountability & Another v Parliament of Kenya & 3 Others [2014] eKLR* illuminated as follows: *“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings….The court will normally allow parties to make such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, no new or inconsistent cause of action is introduced, and no vested interest or accrued legal right is affected and that the amendment can be allowed without an injustice to the other side.”* 1. In addition, the Court of Appeal outlined the principles in amendment of pleadings in the case of *Elijah Kipngeno Arap Bii (2013) eKLR* in which it stated as follows: *“The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; power to so amend can be exercised by the court at any stage of the proceedings(including appeal stages); that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; that the proposed amendment must not be immaterial or useless or merely technical; that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action; that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts.”* 1. What the Kenyan jurisprudence highlights on amendments is that judicial discretion should be exercised freely unless there is evidence that such amendments would cause injustice or in any event the evidential material fails the test of good faith. Therefore it is the Court’s duty to look out for elements of malicious intent or the amendment is set to introduce a completely new case than the one originally intimated by the parties. 2. So what should be kept in mind by the Court in an application of this nature? 3. The intention of the applicant seeking to amend pleadings; 4. The question of limitation if applicable 5. Refusal or acceptance of amendment should not lead to injustice or injury to opponent side; 6. Efforts should be made to avoid multiplicity of litigation; 7. The nature of the suit and cause of action originally set-up and 8. If the amendment is necessary for the purpose of determination of the real question in controversy between the parties provided subject matter of suit remains unchanged. 9. The doctrine of amendment and rectification is an equitable remedy used by Courts to correct a written legal instrument so that it accurately reflects the true shared intention of the parties involved. It should not be confused with the principle held within the common law jurisdiction that Courts do not rewrite or change the underlying bargain or contract. It is therefore mainly granted by Courts in the case of mutual mistake both parties are mistaken about how the text reads and if it is executed in that format it will be flawed or fatally defective in law. 10. In the instant application, the Administrator to the Estate one Wycliffe Musalia Mudavadi swore an affidavit dated 14 July 2026 which demonstrates the limits of the amendments sought from this Court with regard to the partial Certificate of Confirmation of Grant to the intestate estate of the deceased. The Court in Wilson vs Wilson [1854] 5 HL Cas 40, 66-67, 10 ER 811, 822 on this same subject matter in issue stated as follows: *Now it is a great mistake if it is supposed that even a Court of Law cannot correct a mistake, or error, on the face of an instrument: there is no magic in words. If you find a clear mistake, and it admits of no other construction, a Court of Law, as well as a Court of Equity, without impugning any doctrine about correcting those things which can only be shown by parol evidence to be mistakes — without, I say, going into those cases at all, both Courts of Law and of Equity may correct an obvious mistake on the face of an instrument without the slightest difficulty. [Correcting clear errors by construction] enables the court to correct an obvious clerical error in a document that it may conform with the obvious intention of the parties. Although in a loose sense the document is rectified, indeed the process is sometimes referred to as common law rectification, it is not rectification in the correct sense. It remains an exercise in construction.* 1. One thing that is clear is that the proposed amendment/rectification will serve the interest of justice in the administration of the estate as manifested in the intention of the parties. What happens next is to exercise judicial discretion to grant the amendments in terms of Clause 1, 2, 3 and 4 of the instruments dated 14th July 2026. This conclusion is bolstered by the Court issuing the amended certificate of confirmation of grant for the particular purposes of identification of the beneficiaries, the net estate to be distributed and the core legal representative who will be sitting in the armchair of the deceased to fulfil her wishes as if she was surviving to oversee the distribution of the estate to the heirs within the consanguinity and affinity lineage. It is so ordered. **GIVEN UNDER MY HAND AND SEAL OF THIS HONORABLE COURT THIS 8TH DAY OF SEPTEMBER 2026.** **……………………………..………** **R. NYAKUNDI** **JUDGE**