[2021] KEHC 944 (KLR)
The court found that L.R. NO. KISUMU/BORDER/1247 was omitted from the estate's inventory because it had been sold by the deceased to George Atito Fuaye during his lifetime, but the transfer had not been completed. Both the applicant and the sole surviving beneficiary confirmed the facts and agreed to the...
Source-derived case information.
- Citation
- [2021] KEHC 944 (KLR)
- Parties
- Applicant: Allan Jasper Ochieng Misumba; Respondent: Eunice Benta Akinyi
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1076 of 2015
- Procedural Posture
- Succession Cause / Ruling on Application for Rectification of Grant
- Outcome
- Application for rectification of grant allowed.
- Legal Topics
- Rectification of Grant, Omitted Assets, Estate Administration, Transfer of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allan Jasper Ochieng Misumba
Applicant
Eunice Benta Akinyi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Rectification of Grant
Legal Issues
- 1 Whether L.R. NO. KISUMU/BORDER/1247 should be included in the list of assets of the deceased's estate.
- 2 Whether the Certificate of Confirmation of Grant should be rectified to include the omitted property and facilitate its transfer to the purchaser.
Ratio Decidendi
The court found that L.R. NO. KISUMU/BORDER/1247 was omitted from the estate's inventory because it had been sold by the deceased to George Atito Fuaye during his lifetime, but the transfer had not been completed. Both the applicant and the sole surviving beneficiary confirmed the facts and agreed to the rectification. The court held that, in accordance with the Law of Succession Act and probate practice, the grant should be rectified to include the property and facilitate its transfer to the purchaser, as there was no dispute among the beneficiaries and the omission was not fraudulent.
Court Disposition
Application for rectification of grant allowed.
Orders
- L.R. NO. KISUMU/BORDER/1247 is to be incorporated into the list of assets of the deceased's estate.
- The Certificate of Confirmation of Grant is rectified to include the said property.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
SUCCESSION CAUSE NO. 1076 OF 2015
IN THE MATTER OF THE ESTATE OF THE LATE JOHN ALFRED MISUMBA (DECEASED)
AND
IN THE MATTER OF AN APPLICATION BY ALLAN OCHIENG MISUMBA FOR
AMENDMENTOF INVENTORY OF ASSETS AS CAPTURED ON FORM P & A 5
RULING
The application before me is for the rectification of the Grant.
1. It has transpired that one property which belonged to thedeceased had been omitted from the list of the propertiesconstituting the Estate of the lateJOHN ALFRED MISUMBA.
2. The property in issue is L.R. NO. KISUMU/BORDER/1247.
3. The Applicant, ALLAN JASPER OCHIENG MISUMBA, swore anaffidavit explaining that the said property had been sold by the deceased during his lifetime. The person who purchased it was said to beGEORGE ATITO FUAYE.
4. Having perused the Sale Agreement dated 10th August 2000, I am satisfied that the property was sold to George Atito Fuaye in 2000.
5. As the Applicant has stated, on oath, it is because that property had been sold prior to the demise of John Alfred Misumba, that it was not put on the list of the assets comprising the estate.
6. EUNICE BENTA AKINYI, who is the only surviving beneficiary to the estate, has sworn an affidavit confirming the facts set out by the Applicant.
7. She said that there had been an assumption that the property in issue had been transferred to George Atito Fuaye.
8. As it is now clear that the deceased had not effected the transfer of the title; and because the beneficiaries are in agreement about the need to complete the said transfer, it is now ordered that;
(i) L.R. NO. KISUMU/BORDER/1247 was one of the assets belonging to the deceased,and it is therefore to be incorporated tothe list of the assets.
(ii) The Certificate of Confirmation of Grant is rectified, to include the said property; and it is further ordered that the property be transferred to GEORGE ATITO FUAYE.
(iii) I make no order as to costs of the application.
DATED, SIGNED AND DELIVERED AT KISUMUTHIS 20TH DAY OF DECEMBER 2021
FRED A. OCHIENG
JUDGE