[2017] KEHC 5889 (KLR)
The court held that in the absence of consent from all beneficiaries, including Silas Mwiti, and without clear evidence regarding the status of the property and the proposed new beneficiaries, the application for rectification of the grant could not be granted. The court emphasized the necessity of procedural...
Source-derived case information.
- Citation
- [2017] KEHC 5889 (KLR)
- Parties
- Applicant: Alikanjero Kiambi; Respondent: Silas Mwiti
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 378 of 2006
- Procedural Posture
- Miscellaneous Succession Cause / Ruling on Summons for Rectification of Grant
- Outcome
- Application for rectification of grant deferred pending compliance with court directions.
- Judges
- A Mabeya
- Legal Topics
- Rectification of Grant, Consent of Beneficiaries, Distribution of Estate, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alikanjero Kiambi
Applicant
Silas Mwiti
Respondent
Procedural Posture
Miscellaneous Succession Cause / Ruling on Summons for Rectification of Grant
Legal Issues
- 1 Whether the certificate of grant can be rectified to alter the names of beneficiaries without the consent of all beneficiaries.
- 2 Whether there is sufficient evidence to support the proposed changes to the distribution of the estate.
Ratio Decidendi
The court held that in the absence of consent from all beneficiaries, including Silas Mwiti, and without clear evidence regarding the status of the property and the proposed new beneficiaries, the application for rectification of the grant could not be granted. The court emphasized the necessity of procedural fairness and compliance with statutory requirements, directing that the application be served on Silas Mwiti and that the administrator procure and file the consent of all beneficiaries before any final orders could be made. The court declined to dismiss or strike out the application outright to avoid unnecessary expense, instead issuing directions to ensure all parties are properly...
Court Disposition
Application for rectification of grant deferred pending compliance with court directions.
Orders
- The application to be served upon Silas Mwiti within 14 days.
- The administrator to procure the consent of all beneficiaries and file the same in court within 30 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISCELLENIOUS SUCCESSION CAUSE NO. 378 OF 2006
In the Matter of the Estate of ABURI NJERU ALIA M’ABURI M’NCERI (DECEASED)
ALIKANJERO KIAMBI ………………………………… PETITIONER
RULING
1. The Summons before me is dated 16th February, 2017 and is brought under Section 74 of the Law of Succession Act Cap 160, Laws of Kenya. It seeks the rectification of the certificate of grant by altering the names of the beneficiaries.
2. The application is supported by the Affidavit of Alikanjero Kiambi sworn on 16th February, 2017. The grounds for the application have been given as; that the original Petitioner Joyce Igoki M’Aburi died on 14th June, 2015; that her share of 0. 4 Acres be inherited by his son Alikanjero Kiambi; that one Felix Mbae be given 0. 50 Acres and that the share of one Silas Mwiti given to him of 0. 50 Acres be allocated to one Jediel Kinoti Nkiria.
3. I have considered the affidavit and the record carefully. I note that there is nothing on record to show that the other beneficiaries have consented to the changes sought to be made. More importantly, Silas Mwiti, who all along was referred to as a son of the deceased and was allocated 0. 50 Acres in the distribution of 15th July, 2009 is now being said not to be such a son. In an Affidavit sworn by Alikanjero Kiambi on 19th March, 2015, it was alleged that the said Silas Mwiti had sold his share to Felix Mbae and had gone to his biological father. In the present application, Alikanjero Kiambi is purporting to give the same said Felix Mbae his share of 0. 50 Acres and that the share of Silas Mwiti be allocated to Jediel Kinoti Nkiria.
4. It is not clear from the Affidavit in Support who the said Jediel Kinoti Nkiria is. It is also not clear how Felix Mbae who earlier on in the application dated 19th March, 2015 which is on record, was said to be intermeddling with the estate having purchased the share of Silas Mwiti is now being allocated a share by Alikanjero and a new person Jediel Kinoti Nkiria being introduced to take his share that had been allegedly sold to him by Silas Mwiti.
5. In the premises, in the absence of the consent of all the beneficiaries including SILAS MWITI to the proposed rectification, the application cannot stand. Further, there is no evidence that the property is still in the name of the deceased.
6. In order not to subject the parties to further expense by dismissing or striking out the application, I make the following directions under Section 47 of the Law of Succession Act and Article 159 of the Constitution of Kenya:-
(a) let the application be served upon Silas Mwiti within 14 days;
(b) let the Administrator procure the consent of all the beneficiaries and file the same in Court within 30 days.
(c) this matter be mentioned on a day to be fixed for final Orders.
It is so ordered.
DATED AND DELIVERED AT MERU THIS 18TH DAY OF MAY, 2017.
A. MABEYA
JUDGE
18/05/2017