[2023] KEHC 25613 (KLR)

In re Estate of Francis Kamuyu Kamau (Deceased) (Succession Cause 278 of 2017) [2023] KEHC 25613 (KLR) (Family) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25613 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 278 of 2017

MA Odero, J

November 17, 2023

Between

Virginia Wanjiku Kamuyu

Administrator

and

Joseph Karega Kamau

Interested Party

Ruling

1. Before the court for determination is the summons dated May 2, 2023 by which the applicant Joseph Karega Kamuyu seeks the following orders:-1. Spent

2. Spent

3. The applicant be enjoined as an interested party in these proceedings.

4. The certificate of confirmation of grant issued to Virginia Wanjiku Kamuyu on the March 9, 2021 in this cause, be altered and amended/rectified in the following respects as provided for by rule 49 and 43(1) and (2) of the Probate and Administration Rules;-a.The property, Title No. Dagoretti/Kangemi/330 be removed or struck out from the Certificate of Confirmation of grant, as it does not form part of the Estate of Francis Kamuyu Kamau(deceased).b.To reflect a 1/3 share, interest in Title No. /Kangemi/328 held by Francis Kamuyu Kamau(deceased) and not the entire parcel, as indicated thereof, to be absolute

5. That the cost of this application be provided for.”

2. The application was premised upon section 74 and 75 of the Law of Succession Act, and rules 47(1) and (4) , 49,43(1) and (2) and 40(8) of the Probate and Administration Rules and was supported by the affidavits of even date sworn by the applicant.

3. The respondent /administrator Virginia Wanjiku Kamuyu opposed the application through her Replying Affidavit dated May 12, 2023.

4. The matter was canvassed by way of written submissions. The interested party filed the written submissions dated June 20, 2023 whilst the respondent relied upon her written submissions dated May 26, 2023.

Background 5. The Succession cause relates to the estate of the late Francis Kamuyu Kamau (hereinafter the deceased) who died intestate on October 24, 2016. A copy of the death certificate serial No xxxx is annexed to the petition for Grant of Letters of Administration interstate dated February 24, 2017. [According to the chiefs letter dated November 25, 2016, the deceased was survived by the following persons :-1. Virgina Wanjiku Kamuyu – Widow2. Sarah Njoki Kamuyu –Daughter3. Agnes Wambui Kamuyu-Daughter4. William Kamau Kamuyu – Son5. Evelyn Wanjiru Kamuyu - Daughter6. The estate of the deceased was said to comprise of the following assets:-i.LR No. Dagoretti/Kangemi/399Valued at Kshs.5,000,000/=ii.LR. No. Dagoretti/Kangemi/255Valued at Kshs.1,000,000/=iii.LR No. Dagoretti/Kangemi/331Valued at Kshs.5,000,000/=iv.1/3rd share in LR. No. Dagoretti/kangemi/328 – valued at Kshs.90,000,000/=v.Motor Vehicle Registration Number KBK 346WValued at Kshs.600,000/=Total estimated value of estate – Kshs.101,600,000/=

7. Following the demise of the deceased his window Virginia Wanjiku Kamuyu was on 10th July 2017 issued with a Grant of Letters of Administration interstate. The Grant was duly confirmed on 9th March 2021. The certificate of Confirmed Grant detailed how the estate was to be distributed.

8. The applicant Joseph Karega Kamuyu is a brother to the deceased. He avers that the properties known as LR. No. Dagoretti/Kangemi/328 and LR No. Dagoretti/Kangemi/330 are both subject matters in Succession Cause No. 2561 of 2009, Re: Estate of William Kamau Kamuyu.

9. That the same two parcels of land are also subject matters in Succession Cause No. 306 of 2017 – Estate of Serah Njoki Kamau.

10. The applicant complains that plots 330 and 328 are both indicated as belonging absolutely to the deceased in the Certificate of Confirmed Grant issued on March 9, 2021. He argues that this is not the correct position.

11. According to the applicant plot 328 is jointly owned by his late mother Serah Njoki Kamau, himself and the deceased and therefore the estate of the deceased was only entitled to a 1/3rd share of plot 328. He further claims that LR No. Dagoretti/Kangemi/330 was the matrimonial home of his late mother and cannot form part of estate of deceased.

12. The applicant states that as he has now moved into that property it now belongs absolutely to him. The applicant prays that the certificate of confirmed Grant should now be altered/amended to reflect this position. He further prays that the Certificate be amended to reflect that one Francis Kamuyu Kamau (the deceased herein) held a 1/3rd share of LR No. Dagoretti/Kangemi /328 and that the inclusion of LR No. Dagoretti/Kangemi/330 as part of the estate of the deceased ought to be struck out.

13. The Respondent reiterates that she is the legally appointed representative of the estate of the deceased. She asserts that the assets listed in the confirmed grants as belonging to the deceased reflects the correct position.

14. The Respondent told the court that vide the confirmed Grant the mother of the deceased Serah Njoki Kamau was to inherit LR No. Dagoretti/Kangemi/330. However when the mother died Hon. Lady Justice Muigai on November 22, 2018 issued orders that Francis Kamuyu Kamau and Joseph Karega Kamau would equally share plot 330 after completion of all loan payments due on the property.

15. The Respondent argues that being the widow of Francis Kamuyu Kamau, she is fully entitled to one a half share in Dagoretti /Kangemi/330. The widow insists that the certificate of confirmed Grant issued on March 9, 2021 provides a true and correct reflection of the extent of the estate of the deceased she prays that the current application be dismissed with costs.

Analysis and Determination 16. I have carefully considered the application before this court, the reply filed thereto as well as the written submissions filed by the parties.

17. The interested party has prayed to be enjoined as a party in this succession cause. The applicant is a brother to the deceased. There is no evidence to suggest that the applicant was dependant on the deceased immediately prior to his demise. The applicant does not fall within the definition of dependants envisaged by section 29 of the Law of Succession Act.

18. The fact that the applicant is challenging the inclusion of certain assets in the estate does not qualify him to be an interested party in this Succession Cause. I find that the applicant is a stranger to the estate and the prayer to be enjoined in this Cause is denied.

19. However for completion I will proceed to consider prayer (4) of the summons.

20. The applicant has prayed to have the confirmed Grant issued on March 9, 2021 amended/rectified to remove or exclude LR. Dagoretti/Kangemi/330 as an asset belonging to the estate and to reflect that the estate of the deceased is only entitled to a 1/3rd share of LR No.Dagoretti/Kangei/328

21. Rectification of grants is provided for in section 74 of the Law of Succession Act, cap 160, Laws of Kenya and rule 43(1) of the Probate and Administration Rules. Section 74 provides as follows:74. Errors may be rectified by court: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 and the grant of representation , whether before or after confirmation, may be altered and amended accordingly.”Rule 43(1) provides as follows:“Where the holder of a grant seeks pursuant to the provisions of section 74 of the Act rectification of an error in the grant as to the names or descriptions of any person or thing or as to the time or place of death of the deceased or, in the case of a limited grant, the purpose for which the grant was made, he shall apply by summons in form 110 for such rectification through the registry and in the cause in which the grant was made.From the language of section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration rules, the scope of rectification of grants of representation is limited to “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. I may add that such other minor errors in that genre could also be rectified.”In Re estate of Geoffrey Kinuthia Nyamwinga (deceased) [2013]eKLR where the court stated:“The law on rectification or alteration of grants in section 74 of the Law of Succession Act and rule 43 of the Probate and Administration Rules……what these provisions mean is that errors may be rectified by the court where they relate to names or descriptions, or setting out of the time or place of the deceased’s death. The effect is that the power to order rectification is limited to those situations, and therefore the power given to the court by these provisions is not general…”

22. The applicant does not bring this application to merely amend minor errors and/or omissions in the Grant. The amendments which the applicants is seeking/proposing are far-reaching and will affect the entire nature of the estate. Such amendments cannot be granted under a summons for rectification of grant.

23. If the applicant is aggrieved by the inclusion of certain properties in the confirmed Grant then he has liberty to sue the Administrator of the estate.

24. Similarly if the applicant deems that certain of the asset listed in the confirmed Grant do not form part of the estate of deceased but belong to other parties then he is at liberty to file a suit in the Environmental and Land Court (ELC) which under article 162 (b) of the Constitution of Kenya , 2010 was set up to determine questions of ownership use and occupation of land.

25. Finally I find no merit in this application. The same in my view is misplaced. Accordingly I dismiss in its entirety the summons dated 2nd May 2023.

26. Cost will be met by the applicant.

DATED IN NAIROBI THIS 17TH DAY OF NOVEMBER, 2023…………………………………MAUREEN.A ODEROJUDGE