[2024] KEHC 8111 (KLR)
The court found that the application to amend the certificate of confirmation of grant was unopposed in substance, as the respondent's affidavit did not address the orders sought but instead raised issues about the original confirmation proceedings and an intended appeal. There was no evidence of a filed record of...
Source-derived case information.
- Citation
- [2024] KEHC 8111 (KLR)
- Parties
- Applicant: Serah Wairimu Thuku; Applicant: Tony Wataka Thuku; Applicant: Aliet Wawira Gachathi; Applicant: Mary Wambui Mukui; Applicant: Debora Wanjiru Gathimba; Applicant: Joseph Githiku; Applicant: James Muiruri; Respondent: Respondent (unnamed)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 332 of 2009
- Procedural Posture
- Succession Cause / Ruling on Summons for Amendment of Certificate of Confirmation of Grant
- Outcome
- application allowed
- Judges
- PM Nyaundi
- Legal Topics
- Succession, Confirmation of Grant, Amendment of Certificate, Distribution of Estate, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Serah Wairimu Thuku
Applicant
Tony Wataka Thuku
Applicant
Aliet Wawira Gachathi
Applicant
Mary Wambui Mukui
Applicant
Debora Wanjiru Gathimba
Applicant
Joseph Githiku
Applicant
James Muiruri
Applicant
Respondent (unnamed)
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Amendment of Certificate of Confirmation of Grant
Legal Issues
- 1 Whether the certificate of confirmation of grant should be amended to reflect the correct acreage of Ngenda/Gathage/244.
- 2 Whether the respondent's opposition, based on an intended appeal, is sufficient to bar the amendment.
Ratio Decidendi
The court found that the application to amend the certificate of confirmation of grant was unopposed in substance, as the respondent's affidavit did not address the orders sought but instead raised issues about the original confirmation proceedings and an intended appeal. There was no evidence of a filed record of appeal or any stay of proceedings. The applicant provided credible evidence from the District Survey Office and an official search confirming the actual acreage of the subject parcel. All beneficiaries had signed the necessary forms to facilitate the subdivision as proposed. The court held that, in the absence of substantive opposition and with the consent of all beneficiaries,...
Court Disposition
application allowed
Orders
- The certificate of confirmation of grant is amended in respect of parcel Ngenda/Gathage/244 as follows: Serah Wairimu Thuku 1.8 acres; Tony Wataka Thuku 1.27 acres; Aliet Wawira Gachathi 0.74 acres; Mary Wambui Mukui 0.60 acres; Debora Wanjiru Gathimba 0.60 acres; Joseph Githiku 0.345 acres; James Muiruri 0.345 acres.
- Each party will bear their own costs.
Full Case Text
Judgment text and source record
15 paragraphs
In re Estate of Joseph Thuku Gachathi (Deceased) (Succession Cause 332 of 2009) [2024] KEHC 8111 (KLR) (Family) (7 June 2024) (Ruling)
Neutral citation: [2024] KEHC 8111 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 332 of 2009
PM Nyaundi, J
June 7, 2024
IN THE MATTER OF THE ESTATE OF JOSEPH THUKU GACHATHI (DECEASED)
Ruling
1. This ruling is with regard to Summons for Amendment of Certificate of Confirmation of Grant dated 29th November 2022 and presented under rules 49 and 73 of the Probate and Administration Rules. The Application is supported the Affidavit of Serah Wairimu Thuku sworn on the same date.
2. The Application is rather straight forward, at the time of transmission it was discovered that the actual acreage of the subject parcel of land Ngenda/ Gathage/244 is approximately 5. 7 acres and not 7. 5 as assumed at the time of the confirmation of the grant. This fact is proved by the District Survey Office in letter addressed to Gichahi and Co Advocates and certificate of official search for the parcel of land dated 21st April 2022.
3. The Respondent has filed a replying affidavit sworn on 20th February 2022 (sic), he does not state so but it is assumed that is sworn in opposition to the Application. He does not respond to the orders sought but instead challenges the proceedings leading to the confirmation of the grant. He submits that he and other parties intend to appeal the ruling of 25th October 2018. But apart from filing the Notice of Appeal, there isn’t evidence show that the Respondent has filed the record of appeal. His position is further weakend by the fact that beneficiaries have all signed the relevant forms to facilitate the subdivision of the parcel of land as prayed.
4. I have no hesitation in finding that the Application as presented is not opposed and will therefore allow it on the following terms;1. That the summons for confirmation of grant be amended in respect of parcel Ngenda/ Gathage/244 as followsa.Serah Wairimu Thuku 1. 8 acresb.Tony Wataka Thuku 1. 27 acresc.Aliet Wawira Gachathi 0. 74 acresd.Mary Wambui Mukui 0. 60 acrese.Debora Wanjiru Gathimba 0. 60 acresf.Joseph Githiku 0. 345 acresg.James Muiruri 0. 345 acres2. Each party will bear their own costs
SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF JUNE, 2024. P M NYAUNDIJUDGEIn the presence of:Kimani h/b Gichachi Advocates for the ApplicantAdvocates for the RespondentSylvia Court Assistant