[2023] KEHC 22106 (KLR)

In re Estate of Gerald Njoroge Wanyoike (Deceased) (Succession Cause 1984 of 1994) [2023] KEHC 22106 (KLR) (Family) (3 July 2023) (Ruling)

Neutral citation: [2023] KEHC 22106 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1984 of 1994

EKO Ogola, J

July 3, 2023

In The Matter Of The Estate Of Gerald Njoroge Wanyoike (Deceased)

Ruling

1. The Summons before this court is dated August 25, 2021. The administrators of the estate, Beatrice Wangari Njoroge and Faith Waithera pray for the following:-a.That the honourable court be pleased to include LR. Loc. 1/Kigio/T.23 in the inventory of assets in P& A 5 and amend the Certificate of Confirmation of grant issued on 16th February 1999 as per paragraph 9 of the Supporting Affidavit.b.That the cost of this Application be in the cause.

2. The Summons is supported by a joint affidavit sworn by both Administrators. It is deposed that the property is known as LR. Loc. 1/Kigio/T.23 was recently discovered to be owned by the late Gerald Njoroge Wanyoike. The said property had been sold by the deceased to one Lydia Wanjiku Karanja. However, the deceased died before officially transferring the property. In paragraph 9 of the supporting affidavit, the administrators pray that the certificate of confirmed grant be amended and the property be registered in the name of Lydia Wanjiku Karanja as a sole proprietor.

Determination 3. I have considered the Summons, the Affidavit and the Annextures. The Administrators pray for the Confirmed Grant to be amended to include newly discovered property that was not available or had not been discovered at the time of distribution. They further seek for the property to be distributed. Amendment of a Confirmed Grant is provided for by section 74 of the Law of Succession Act, cap 160, Laws of Kenya which 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, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.”

4. Rule 43(1) of the Probate and Administration Rules states as follows:-“43(1) 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 of descriptions of any person or thing or as to the time or place of the death of the deceased or, in he 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 issued.”

5. Amendment or rectification of a Confirmed Grant is allowed in order to correct a misdescription of a property or to correct a name which has not been fully or properly described in the Grant. In Re EstateofCharles Kibe Karanja (Deceased)2015 eKLR the Court held as follows:-“If there is discovery of new assets that were not available or had not been discovered at the time of distribution, among others; it would be imprudent to seek rectification or alteration or amendment of the certificate of confirmation of grant. Such changes are fundamental, not superficial. They go to the core of the distribution. They cannot be affected without touching the orders made by the court at the distribution of the estate. Consequently, such changes cannot and should not be effected through a mere amendment of the certificate of confirmation of grant. The proper approach ought to be an application for review of the orders made at the confirmation of the grant.”

6. From the foregoing I find that the sweeping changes proposed to be made by the summons do not fall under the scope of rectification under section 74. However, rule 73 of the Probate and Administration Rules provides that:-“Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

7. To meet the end of justice, I hereby allow the summons dated August 25, 2021 as prayed.

8. Cost of the application be in the cause.

9It is so ordered.

DATED and DELIVERED at NAIROBI this 3rd day of July 2023……………………………………E.K. OGOLAJUDGEIn the presence of:Ms. Mugo h/b for Mr. Mbolo for the ApplicantsGisiele Muthoni Court Assistant