[2014] KEHC 7278 (KLR)
The court held that the application for rectification of grant was incompetent because the applicant was not the holder of the grant, as required by Section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules. However, recognizing the need for continued representation of the...
Source-derived case information.
- Citation
- [2014] KEHC 7278 (KLR)
- Parties
- Applicant: Paul Mwangi Gitao; Respondent: Joseph Muhia Gitao
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 202 of 1988
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Grant and Directions on Representation
- Outcome
- Application for rectification dismissed in part; applicant appointed co-administrator; fresh grant to issue.
- Judges
- DN Musyoka
- Legal Topics
- Succession, Grant Rectification, Administrator Substitution, Probate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mwangi Gitao
Applicant
Joseph Muhia Gitao
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Grant and Directions on Representation
Legal Issues
- 1 Whether the applicant, not being the holder of the grant, can seek rectification under Section 74 of the Law of Succession Act.
- 2 How to ensure continued representation of the deceased administrator's house in the administration of the estate.
Ratio Decidendi
The court held that the application for rectification of grant was incompetent because the applicant was not the holder of the grant, as required by Section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules. However, recognizing the need for continued representation of the deceased administrator's house, and the failure of the family to agree on a replacement, the court exercised its discretion to appoint the applicant, Paul Mwangi Gitao, as co-administrator in place of his deceased brother. The court further directed that a fresh grant of letters of administration intestate issue to Paul Mwangi Gitao and Joseph Muhia Gitao, while dismissing the...
Court Disposition
Application for rectification dismissed in part; applicant appointed co-administrator; fresh grant to issue.
Orders
- Paul Mwangi Gitao is appointed co-administrator of the estate in place of his deceased brother, David Muhia Gitao.
- A fresh grant of letters of administration intestate shall issue to Paul Mwangi Gitao and Joseph Muhia Gitao.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 202 OF 1988
IN THE MATTER OF THE ESTATE OF JEREMIAH GITAU MUHIA – (DECEASED)
RULING/DIRECTIONS
1. This matter is for directions with regard to representation.
2. The issue of directions arises from the Summons for Rectification of grant dated 23rd January 2013 filed by Paul Mwangi Gitao. He seeks a string of changes in the cause – that he substitutes a dead administrator, that the names of two deceased heirs be removed from the list of beneficiaries and that two dead heirs be substituted with the names of their widows.
3. It must be stated from the outset that the application dated 23rd January 2013 is incompetent in view of Section 74 of the Law of Succession Act. The effect of Section 74, as read with Rule 43(1) of the Probate and Administration Rules, is that rectification of a grant can only be sought by the holder of the grant sought to be rectified. The applicant herein, Paul Mwangi Gitao, is not the holder of the grant sought to be rectified and he cannot therefore obtain the orders that he is seeking.
4. However, I do note that one administrator has died. The dead administrator represented one of the two houses that make up the family of the deceased person the subject of these proceedings. It is imperative that that house be represented in the administration of the estate. The family has failed to agree on the matter. I do note that the said Paul Mwangi Gitao comes from the side of the family represented by the dead administrator.
5. The directions that I will give in the circumstances are:-
(a) That Paul Mwangi Gitao be and is hereby appointed a co-administrator of the estate of the deceased in the place of his deceased brother, David Muhia Gitao.
(b) That a fresh grant of letters of administration intestate shall issue upon Paul Mwangi Gitao and Joseph Muhia Gitao.
(c) That the rest of the prayers in the application are untenable as they are sought in an application filed by a person who had no capacity to bring an application seeking the orders of the character sought in the said application.
DATED, SIGNED and DELIVERED at NAIROBI this31st DAY OF January, 2014.
W. MUSYOKA
JUDGE