[2022] KEHC 1407 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

SUCCESSION CAUSE NO.304 OF 1997

IN THE MATTER OF THE ESTATE OF ABRAHAM WANYAHORA MUTAMBU (DECEASED)

FESTUS WANYAHORA MWANGI ……………3RD ADMINISTRATOR/APPLICANT

VERSUS

FRANCIS MBUTHIA WANYAHORA........….1ST ADMINISTRATOR/RESPONDENT

SAMUEL NDAIGA WANYAHORA.....………2ND ADMINISTRATOR/RESPONDENT

RULING

1. The 3rd administrator has filed an application dated 15th October 2020 being summons for rectification of grant that seeks for orders:

1. Spent

2. Spent

3. That the honorable court be pleased to grant stay of execution of the grant dated 15/12/2000.

4. That the grant issued by this court be rectified as per paragraph 8 of the affidavit in support hereto.

5. That costs be in the cause.

2. The application is based on grounds on the face thereof and supported by the affidavit of the 3rd administrator/applicant. The applicant contends that there are glaring errors on the face of the grant issued by this court on the 15/12/2000. That the grant does not represent the actual wishes of the beneficiaries as regards the distribution of the estate herein. That the respondents are in the process of transmitting the estate as per the erroneous grant. That if the estate is distributed as ordered some beneficiaries will end up losing greatly. That the beneficiaries had agreed on a mode of distribution as per an agreement marked FWM1 which was to be captured in the grant but which was not done. That the estate should be distributed and the grant rectified as follows:

i. Zeriba Njeri Wanyahora -0. 2 Acres

ii. Francis Mbuthia Wanyahora -2. 60 Acres

iii. SamuelNdaigaWanyahora -2. 60 Acres

iv. Festus Wanyahora Mwangi -1. 0 Acres

v. Beatrice Wanjiru Daniel -1. 3 Acres

vi. Paul Karanja Munogu -1. 0 Acres

Festus Wanyahora Mwangi, Paul Kagwa-Ini Mwangi, Timothy Ndaiga Mwangi, Cyrus Mbuthia Mwangi, Julius Njuki Mwangi and Joseph Wanjau Mwangi jointly to get

- 1. 3 Acres.

3. The application was opposed by the 1st and 2nd administrators, Francis Mbuthia Wanyahora and Samuel Ndaiga Wanyahora, vide the replying affidavit of the 1st administrator deposed on the 8th September 2020. The 1st administrator has in addition filed an application dated the same date seeking for orders:

1. That the Court do appoint the Deputy Registrar of this Court to execute/ sign all documents on behalf of the respondents to facilitate issuance of Land Control Board consent, partition of the resultant consolidated parcel of land LR. LOWER MUHITO/ NGAMWA/ 1068 and registration of resultant parcel of land after partition to fully effectuate the grant issued on the 15th December 2000.

2. That the production of identification documents of the respondents i.e. identity cards, P.I.N certificates, passport photographs of all persons entitled as per the grant be dispensed with.

3. That the Officer commanding the station Mukurwe-ini Police station do provide security at the time of partitioning of the parcel of land.

4. That costs be provided for.

4. The 1st administrator contends that the application by the 3rd administrator is an abuse of the process of the court and is meant to delay the effectuation of the grant. That the court in its order of 15/12/2000 allowed for consolidation of LR Nos. Lower Muhito/Ngamwa/635,689 and 690. That the land was consolidated into LR. No. Lower/Muhito/Ngamwa/1068 which was to be distributed as per the grant. That to date the grant is yet to be effectuated as the 3rd administrator and other heirs have declined to participate in the process by refusing to supply their requisite documents and to execute the necessary documents. Hence his prayer to have the Deputy Registrar of this court execute the documents for those beneficiaries who may refuse to do so.

5. The advocates for the applicant submitted that the applicant has shown by the annexed agreement that the grant did not capture the actual mode of distribution as agreed upon by all the beneficiaries. Counsel further submitted that the acreage on the ground is lesser that what is in the grant thereby making it practically impossible to transmit the grant. Counsel also submitted that the consolidation of the parcels of land was done without there being an order of the court permitting the consolidation.

6. The advocates for the respondents on the other hand submitted that what can be rectified in a grant under section 74 of Law of succession Act are minor errors and mistakes such as rectification of the name or description of a person or thing and the time or place of death of the deceased. That to the contrary the present application seeks re-distribution of the estate afresh. That such an act cannot be done under section 74 of the Law of Succession Act. Counsel urged the court to dismiss the 3rd administrator`s application and allow the respondents` application dated 8/9/2020.

7. I have considered both applications. The application by the 3rd administrator is made under section 74 of the Law of Succession Act and Rule 73 of the Probate & Administration Rules.

8. The 3rd administrator says that the land which is the subject of this succession cause was consolidated without an order of the court. I have perused the grant issued by the court on 15/12/2000. It connotes the property for distribution as follows:

“ Lower Muhito/Ngamwa/635, 689 & 690Formerly Lower Muhito/Ngamwa/238 consolidated and shared asfollows-”

9. In view of the clear orders of the court as seen herein, it is misleading for the 3rd administrator to allege that there was no court order for consolidation of the three parcels of land.

10. The 3rd administrator alleges that the acreage on the ground is less that what is in the grant.The annexed search certificate for the consolidated land shows that the land measuresapproximately 4. 03 Ha which is equivalent to about 10. 0 acres.The total land in the confirmed grant is 10. 18 acres. This means that the land in the confirmed grant is more that the land in the search certificate by 0. 18 acres. In other words, the land on the ground is less than what is in the confirmed grant. It seems that this is what has caused a stalemate between the parties since the time the grant was confirmed some 21 years ago. It is apparent that the 1st and 2nd administrators want to proceed with the process even when it is clear that the land on the ground is less than what is in the grant.

11. The 3rd administrator is seeking to unlock the stalemate by having the grant rectified under section 74 of the Law of Succession Act. 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, maybe be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.

12. It is clear that section 74 of the Law of Succession Act is meant to be applied in rectifying minor errors and mistakes that may be found in the grant after it has been issued. It is apparent clear that what the 3rd administrator is seeking in his application and in paragraph 8 of his supporting affidavit is a fresh re-distribution of the estate. The distribution of the estate was arrived at with the consent of the parties. The same therefore cannot be regarded as an error to be corrected under section 74 of the Law of Succession Act. The 3rd administrator should instead have sought for revocation of the grant under section 76 of the Law of Succession Act and fresh re-distribution of the estate.

13. Section 76 of the Law of Succession Act gives a probate court power to revoke or a null any grant even after confirmation has been done where the court is satisfied, inter alia, that the grant has become “useless and inoperative” through subsequent circumstances. This can be done either on the court`s own motion or on application by a party. Rule 73 of the P & A Rules grants the court inherent power to make such orders as may be necessary to meet the ends of justice. It is clear to me that it is difficult to effectuate the grant seamlessly as the land on the ground is less that what is in the confirmed grant. In my view the grant has become in operative. In the premises, there is reason for this court to intervene and re-distribute the estate afresh so as to harmonize the grant with the land on the ground and to meet the ends of justice.

14. I have considered the mode of distribution proposed by the 3rd administrator in paragraph 8 of his supporting affidavit. He proposes that the changes be effected as follows:

The 1st administrator`s portion be reduced from 2. 66 acres to 2. 60 acres.

The 2nd administrator`s portion be reduced from 2. 66 acres to 2. 60 acres.

The portion for Beatrice Wanjiru Daniel be reduced from 1. 33 acres to 1. 30 acres.

The portion for Festus Wanyahora Mwangi and others be reduced from 1. 33 acres to 1. 30 acres.

15. The 1st and 2nd administrators did not respond to the proposed mode of distribution by the 3rd administrator apart from arguing that the application was defective. I find the changes being proposed by the 3rd administrator to be minor adjustments to cater for the missing land on the ground. The majority of the beneficiaries are going to lose something small so as to bring the grant within what is on the ground. Parties should be willing to embrace such sacrifice for the benefit of all. I do thereby accept the changes and make the following orders:

(1) That the certificate of confirmation of grant issued by this court on the 15/12/2000 is hereby revoked and a fresh grant is hereby issued jointly the three administrators herein.

(2) That the estate is re-distributed as follows:

1. Zeriba Njeri Wanyahora - 0. 2 Acres

2. Francis Mbuthia Wanyahora - 2. 60 Acres

3. Samuel Ndaiga Wanyahora - 2. 60 Acres

4. Festus Wanyahora Mwangi - 1. 0 Acres

5. Beatrice Wanjiru Daniel - 1. 30 Acres

6. Paul Karanja Munogu - 1. 0 Acres

7. Festus Wanyahora Mwangi, Paul Kagwa-Ini Mwangi, Timothy Ndaiga Mwangi, Cyrus Mbuthia Mwangi, Julius Njuki Mwangi and Joseph Wanjau Mwangi jointly to get

- 1. 30Acres.

16. In view of the fact that it has become difficult to effectuate the grant in this matter due to disagreements between the beneficiaries on transmission of the land, I do grant the orders sought by Francis Mbuthia Wanyahora and Samuel Ndaiga Wanyahora in the application dated 8th September 2020, safe that the grant to be effectuated therein is the one to be issued pursuant to this ruling.

Orders accordingly.

As this is a family matter, each party to bear its own costs.

DELIVERED, DATED AND SIGNED AT NYERI THIS 10TH DAY OF MARCH, 2022

J. N. NJAGI

JUDGE