[2016] KEHC 1264 (KLR)
The court found that the application for rectification of the grant did not fall within the ambit of section 74 of the Law of Succession Act, as the rectification sought was not limited to correcting errors in names or descriptions but amounted to a substantive challenge to the confirmed grant. The court held that...
Source-derived case information.
- Citation
- [2016] KEHC 1264 (KLR)
- Parties
- Applicant: Kennedy Njue Nthiga; Respondent: Leah Ndia Njerera Njue
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 71 of 2005
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Grant
- Outcome
- Application for rectification of grant declined; matter referred for further directions.
- Legal Topics
- Rectification of Grant, Probate and Administration, Non Disclosure of Material Facts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Njue Nthiga
Applicant
Leah Ndia Njerera Njue
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Grant
Legal Issues
- 1 Whether the application for rectification of grant falls within the scope of section 74 of the Law of Succession Act.
- 2 Whether the administrator failed to disclose material facts regarding the beneficiaries of the estate of Alexander Njue.
- 3 Whether the rectification sought amounts to a substantive challenge to the confirmed grant.
Ratio Decidendi
The court found that the application for rectification of the grant did not fall within the ambit of section 74 of the Law of Succession Act, as the rectification sought was not limited to correcting errors in names or descriptions but amounted to a substantive challenge to the confirmed grant. The court held that such a challenge should be brought through proper substantive proceedings and not by way of rectification. Consequently, the matter was referred to the judge who confirmed the grant for further directions.
Court Disposition
Application for rectification of grant declined; matter referred for further directions.
Orders
- The application for rectification of the grant is declined.
- The matter is to be brought to the attention of Muchemi, J for further directions.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
SUCCESSION CAUSE NO. 71 OF 2005
IN THE MATTER OF THE ESTATE OF JOSIAH NJUE DANIEL MUCHANDI (DECEASED)
KENNEDY NJUE NTHIGA
LEAH NDIA NJERERA NJUE........ADMINISTRATORS/PETITIONERS
RULING
1. This is a summons for rectification of a grant confirmed by this court (Muchemi, J) on 15th June, 2015 and issued on 16th June, 2015. The summons is brought under Section 74 of the Law of Succession Act (Cap 160) Laws of Kenya and Rules 14 (I) and 43 of the Probate and Administration Rules.
2. According to the applicant's application, the administrator did not disclose material facts in particular that Leah Ndia Njerera Njue was not the sole beneficiary of the estate of Alexander Njue.
3. Additionally, the applicant states that Kennedy Njue who is a co-administrator of the estate of Alexander Njue was not consulted by the administrator when the application was made.
4. Finally the applicant states that Kennedy Njue was made a co-administrator with Leah Ndia Njerera Njue and for that reason the three acres of land given to Leah Ndia Njerera Njue forms part of the estate of Alexander Njue.
5. The summons for rectification is opposed by the administrator on the ground that the applicants seek to add a new beneficiary to the estate of Josiah Njue Daniel Michandi, which is not a matter contemplated for rectification of a grant under section 74 of the Laws of Kenya, amongst other grounds. Section 74 allows rectification of errors of names and description of the time and place of deceased death.
6. I have perused the rival submissions of both counsel. I find that the rectification sought is a challenge to the character of the confirmed grant of this court (Muchemi, J) made on 15th June 2015. It does not relate to rectification of errors in terms of section 74 of the Succession Act (Cap160) Laws of Kenya. In the circumstances the matter should be brought to the attention of Muchemi, J for further directions.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 2nd day of February 2016
In the presence of Mr Manyara holding brief for Mr Kimani for the applicant and in the absence of the respondent.
Court clerk Njue
J.M. BWONWONGA
JUDGE
02. 02. 16