[2017] KEHC 1005 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

PROBATE AND ADMINISTRATION CASE NO. 1801 OF 1995

IN THE MATTER OF THE ESTATE OF GEOFFREY KIMANDU GITAU (DECEASED)

RULING

1. The application the subject of this ruling is dated 12//7/2017. The said application is to correct an error in the judgment of this court dated 7th April 2017. The applicant seeks two prayers; That this Court be pleased to amend its ruling dated 7th April 2017. That the amended grant be further re-amended to read as follows;

a. L.R. Number Ngenda /Kahuguini/687 was left out and be included in the grant and the same to be given to David Gitau Kimandu.

b. L.R. Number Ngenda/Kahuguini/T 687 to read as Land Parcel no Ngenda /Kahuguini/ 687 at page 15 of the ruling.

c. Ngenda /Kahuguini/ 387 to read as parcel no. Ngenda /Kahuguini/ T387 at page 19 of the ruling.

d. That Kahawa West plot number DD15 was erroneously entered as Kahawa West Plot no. DD and the same should be amended to read Kahawa West Plot no. DD15.

e. That the name Mary Wambui was wrongly captured as Mary Wangui and the same be rectified to read as Mary Wambui.

f. Shares with Mboi Kamiti on page 18 and 19 of the ruling be amended to read as shares with Mboi Kamiti and shares with Kahuguini irigithani.

g. The estate of Damaris Wanjiru was erroneously entered as estate of Damaris Wangui at page 19 and the same be amended to read the estate of Damaris Wanjiru.

h. That costs of the application be paid out of the estate.

2. The application is supported by the sworn affidavit of one David Gitau Kimandu. He avers that the court by its decision dated 7th April 2017 re amended the grant dated 14th May 1999. That he noted that the same had a lot of ambiguities making it hard for him to implement the same. That a property Ngenda/Kahuguini/687 was left out during distribution. Kahawa West /687 was mis-described as Kahawa West Plot DD instead of Kahawa West Plot Number DD 15 (see page 5 paragraph 6 of the ruling); shares in Mboi Kamiti irigithani instead of shares with Mboi Kamiti and shares in Kuthuguini irigithani (see page 18 paragraph 22(iv) of the ruling). That some beneficiaries’ names were mixed up while others were misspelled namely Mary Wangui instead of Mary Wambui (see page 8 paragraph 10 of the ruling); the name Margaret Wairimu Gikandi instead of Margaret Wairimu Kimandu (see page 15 paragraph 19). That the court had intended to give him parcel no. Ngenda/ Kahuguini/687 instead of Ngenda/Kahuguini/T47 as indicated on page 19 while the said parcel of land was not available for distribution. Adding that he is advised that the said re-amended grant need to be further re-amended to capture the sought recommendations.

3. Margaret Wairimu Kimandu in her replying affidavit dated 2/10/2017 avers that she has no issue with the re-amendment part save for prayer no. 2 (a) which states that L.R. No. Ngenda/Kahuguini/687 was left out and that it be given to David Gitau Kimandu. That in his pleadings the applicant had proposed that the aforesaid property be distributed to the estate of Jane Muthoni and Eunice Nyokabi equally whilst she had suggested the same be distributed to Mary Wambui and Alice Wangui. That the parcel of land 14225/133 does not belong to the estate of the deceased but the court still went ahead to distribute the same. That the court failed to distribute Plot no. 0053 at Kamuthi Housing Co-operative Society. That should the grant be further amended there may be need for viva voce evidence to be called. That L.R. No. 14225/133 has since been subdivided into 3 parcels. She avers that she is agreeable if the applicant is granted L.R. Ngenda/ Kahunguini/687 if she will be given plot no. 0053.

4. The applicant submits that the parcel of land Ngenda/Kahuguini/687 was omitted in the distribution of the deceased’s assets. He also urges the court to give the said parcel to the applicant as it had earlier intended. That from the proceedings, it is clear that the land parcel no. Ngenda/Kahunguini/T.47 had been sold and it is from the said sale proceeds were used to purchase 3 plots Kamuthi-Thika share number 4556, 4557, 0137 which were subdivided and distributed as follows;

i. Kamuthi-Thika Share no. 4556 to David Gitau Kimandu

ii. Kamuthi-Thika Share no. 4557 to Mary Wambui Kimandu

iii. Kamuthi-Thika Share no. 0137 to Alice Wangui Gikandi

5. The issue of sale of parcel no. 14225/133 allegedly sold to Mary Wambui was nullified and the said parcel reverted back to the deceased as no documentations was adduced in regards to the alleged sale. That he concedes that plot number 0053 can be given to the respondent and that land parcel number Ngenda/ Kahuguini/687 be given to him.

6. The respondent is not opposed to the prayers for correction of clerical errors. She submits that in the further affidavit sworn on 26th January 2016, she stated that the title to L.R. No. `4225/`33 was issued to her in the year 2000 yet the deceased died in 1993. That the facts were not controverted and that it was an error on the part of the court to include the said property within the estate as the title thereof would revert to the respondent in her own name as of right and not as an administrator. That the property is not available for distribution. She urges the court to; correct the clerical errors as cited, include properties Ngenda/ Kahuguini/687 and plot No. 0053 Kamuthi Housing Co-operative Society in the grant, distribute Ngenda/ Kahuguini/687 as the court may deem just and fair, distribute plot No. 0053 in favor of the respondent and decline the inclusion of parcel no. 14225/133 in the grant and also not distribute the same as it does not belong to the estate.

DETERMINATION

7. From a look at the judgment herein it is clear that there were a few clerical errors which touching on names and mis-description of properties this court therefore gives the following orders; Let all mention of Mary Wangui be replaced with Mary Wambui. Let all mention of Ngenda/Kahunguini T687 be replaced with Ngenda/Kahunguini/687.

8. In regards to Plot no. 14225/133 this court had made a finding that the alleged sale was not proved by adduction of documents and as such revoked the same and ordered that the title so changed be reverted to the names of the deceased and the same be shared equally by all the deceased’s children namely, Alice Wangui; David Gitau; Mary Wambui; Estate of Jane Muthoni; Estate of Eunice Nyokabi; Estate of Damaris Wangui.

9. Both the applicant and respondent are agreeable that the clerical errors in the said judgment be rectified. The only issue emerging is that the respondent indicated that Plot No. 0053 was not re-distributed. The respondent is agreeable to have parcel no. Ngenda/Kahunguini/687 allocated to the applicant David Gitau Kimandu while she gets Plot No. 0053 which had been erroneously omitted by this Court. From the fore going it is evident that there are no contentious issues arising should this Court amend the Judgment delivered on 7th April 2017. ws;

10. This court therefore orders as follow;

i. L.R. Number Ngenda /Kahuguini/687 erroneously left out be included in the grant and the same to be allocated to David Gitau Kimandu

ii. The parcel of land mis-described as L.R. Number Ngenda/Kahuguini/T 687 be rectified to read as L.R. Number Ngenda /Kahuguini/ 687

iii. The parcel of land mis-described as Ngenda /Kahuguini/ 387 to read as parcel no. Ngenda /Kahuguini/ T387

iv. That Kahawa West plot number DD15 was erroneously entered as Kahawa West Plot no. DD to be amended to read Kahawa West Plot no. DD15.

v. That the name Mary Wambui which was wrongly captured as Mary Wangui be rectified to read as Mary Wambui.

vi. Shares described as shares with Mboi Kamiti irigithani on page 18 and 19 of the ruling be amended to read as shares with Mboi Kamiti and shares with Kahuguini irigithani.

vii. The estate of Damaris Wanjiru erroneously entered as the Estate of Damaris Wangui at page 19 and the same be amended to read to read The Estate of Damaris Wanjiru.

viii. Parcel of land known as Plot No. 0053 erroneously omitted in the re-amended grant be included and the same to be given to Margaret Wairimu Kimandu

No orders as to costs. It is so ordered.

Dated, Signed and delivered this 5th day of December,2017.

R. E. OUGO

JUDGE

In the presence of;

Miss Mary Wambui Present

John Gitau & AnnWanjiku Present

Ms. Charity Court Clerk