[2017] KEHC 9428 (KLR)
The court found that the application for rectification to add omitted assets to the schedule of distribution was justified and granted, as the omission was established and the assets identified. However, the court determined that the application for confirmation of the rectified grant was premature due to incomplete...
Source-derived case information.
- Citation
- [2017] KEHC 9428 (KLR)
- Parties
- Applicant: Henry Moses Thairu; Applicant: David Morgan Gichuhi Thairu; Applicant: Isaac Njoroge Thairu; Respondent: Mary Nyaruai Wanaina; Respondent: Samuel Mungai Thairu; Respondent: Margaret Wambui Mbugua; Respondent: Bernard Kungu Thairu; Respondent: Martha Wangui Ngobe
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 800 of 2013
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Grant
- Outcome
- Application for rectification to add omitted assets granted; application for confirmation of rectified grant adjourned.
- Judges
- BA Mitullah
- Legal Topics
- Rectification of Grant, Succession, Distribution of Estate, Omitted Assets
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Moses Thairu
Applicant
David Morgan Gichuhi Thairu
Applicant
Isaac Njoroge Thairu
Applicant
Mary Nyaruai Wanaina
Respondent
Samuel Mungai Thairu
Respondent
Margaret Wambui Mbugua
Respondent
Bernard Kungu Thairu
Respondent
Martha Wangui Ngobe
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Grant
Legal Issues
- 1 Whether the rectification of the grant should be allowed to include omitted assets in the estate distribution.
- 2 Whether the error in the description and acreage of Dagoretti/Kinoo/128 justifies rectification of the grant.
- 3 Whether the consent to distribution is valid given that not all beneficiaries have signed and some may be minors.
Ratio Decidendi
The court found that the application for rectification to add omitted assets to the schedule of distribution was justified and granted, as the omission was established and the assets identified. However, the court determined that the application for confirmation of the rectified grant was premature due to incomplete consent from all beneficiaries, the possibility of minor beneficiaries whose interests were not adequately protected, and the absence of a surveyor's report confirming the actual measurements and findings regarding the land. The court emphasized the need for full and proper evidence before confirming the rectified grant, particularly regarding the division of property and the...
Court Disposition
Application for rectification to add omitted assets granted; application for confirmation of rectified grant adjourned.
Orders
- Rectification of the grant to include omitted assets is allowed.
- Application for confirmation of the rectified grant is adjourned pending filing of a surveyor's report and completion of consents and trustee appointments.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION MILIMANI LAW COURTS
SUCCESSION CAUSE 800 of 2013
IN THE MATTER OF THE ESTATE OF FRANCIS THAIRU MUNYUA
RULING
1. The Court now has before it a Summons for Rectification of Grant for the Estate of Francis Thairu Munyua (“the Deceased”) who passed away on 11th May 2003. The Letters of Administration Intestate were issued on 9th July 2003 and confirmed on 24th September 2014. The Summons for Rectification and/or Amendment of the Letters of Administration and the Certificate of Confirmation was filed on 3rd March 2017.
2. The Application is brought by Henry Moses Thairu, David Morgan Gichuhi Thairu and Isaac Njoroge Thairu who are the Administrators of the Estate.
3. The Grounds for Rectification are that the Administrators firstly failed to include certain assets in the Schedule of Distribution. In addition, on of the Properties that was included, known as Dagoretti/Kinoo/128 contained an error. The error is not described. It is said that the error came to light when the Administrators “applied for a consent to subdivide the parcel of land known as Dagoretti/Kinoo/128 as the mutation plans had different acreage than those exhibited in the certificate of confirmation of grant”. The Supporting Affidavit does not explain how the error arose. However, from the evidence produced it seems that the suggested distribution put forward in the Summons for Confirmation of Grant was not feasible as it denotes different acreage than that recorded by the Surveyor. That was only discovered after the Surveyor had measured the land (6. 9 acres) with a view to subdivision. The intended subdivision is marked on the attached Mutation Form. It is said that reflects the current occupation. The Court has no way of knowing whether that is in fact the position on the ground.
4. In addition, the Administrators seek rectification in relation to certain assets of the Estate that were inadvertently omitted from the Schedule of Distribution. Those were:
(1) 700 Shares in Co-Operative Bank of Kenya Limited
(2) 5350 Shares in Kenya Commercial Bank Limited
(3) 486 Shares in East African Breweries Ltd (Dividend Notice Attached)
5. The Assets are to be distributed according to the Schedules attached to the Consent of Distribution that has been signed by the intended recipient beneficiaries.
6. The Persons said to be entitled to receive a share in the additional Shares are:
(a) Henry Moses Thairu,
(b) Mary Nyaruai Wanaina (widow of Charles Wanaina Thairu)
(c) Samuel Mungai Thairu,
(d) David Morgan Gishuhi Thairu,
(e) Margaret Wambui Mbugua
(f) Bernard Kungu Thairu
(g) Isaac Njoroge Thairu; and
(h) Martha Wangui Ngobe (widow of Peter Muhoho Thairu)
7. However the only persons who have signed the consent are:
(a) Mary Nyaruai Wanaina
(b) Samuel Mungair Thairu,
(c) Bernard Kungu Thairu; and
(d) Martha Wangui Ngobe
In the circumstances, the consent to distribution is incomplete. In addition one or more of the beneficiaries may still be minors, and therefore their share must be held on trust by two trustees until they attains majority. That share is not designated, nor recognised. Nor are the three trustees named.
8. In relation to the Land there is no report from the Surveyor or indeed any document signed by him stating what his findings were in relation to the land. In the circumstances, the Application for rectification by adding additional assets to the Schedule is granted. However, the Application for confirmation of the Rectified Letters of Administration is premature in the face of missing evidence. That Application is adjourned to allow the Parties an opportunity to put before the Court full details of distribution in particular the divisions of the Property. The Administrators shall also file a Report from the Surveyor who completed the mutation setting out the exact measurements and his findings.
Order accordingly,
FARAH S.M. AMIN
JUDGE
Signed and Delivered in Nairobi on this the 9th day of May 2017
In the Presence of:
Court Assistant:
Applicants: