[2022] KEHC 670 (KLR)

In re Estate of Kunundu Shisuvanga Musa (Deceased) (Succession Cause 652 of 2010) [2022] KEHC 670 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 670 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 652 of 2010

WM Musyoka, J

May 13, 2022

Ruling

1. The application for determination is the summons dated 21st July 2014. The same seeks correction or amendment of the certificate of confirmation of grant dated 29th July 2013, so that Kakamega/Shikulu/1787 is shared out in the ratios Christopher Matsivi Kunundu 0. 67 HA, John Luka Kunundu 0. 21 HA, Josephat Shikoli Bwetete 0. 20 HA and Gilbert Liyenzelo.

2. In his affidavit in support, the applicant, Christopher Matsivi Kunundu, avers to be the illiterate administrator of the estate, and I shall henceforth refer to him as the administrator. He says that he allowed one Gilbert Liyenzelo to prepare the application for confirmation of grant for him, and he signed the same, believing that it had been prepared as had been agreed. The grant was confirmed on 17th July 2013 and Kakamega/Shikulu/1787 was devolved as follows: Christopher Kunundu 0. 3 HA, John Luka 0. 3 HA and Gilbert Liyenzelo 0. 7 HA. He states that in that distribution a purchaser known as Joseph Shikoli Bwatete was left out, and Christopher Kunundu awarded himself a bigger share than what he occupied on the ground. He avers that distribution was done before survey was carried out on the ground, to bring out the figures on the ground, and that the figures in the confirmation application were fictitious. He states that survey works have been done on the ground, and the figures are those stated in the application, he would like the estate redistributed as per the results of the survey works, and the sketch attached to the application.

3. The response to the application is by Gilbert Liyenzelo, through an affidavit sworn on 14th July 2021. I shall refer to him hereafter as the respondent. He states that the administrator and his brother, who he identifies as John Luka Kunundu, were half-brothers, on account of having the same father but different mothers. All their parents are deceased. He avers that at the time of his death, the deceased father of the administrator had distributed Kakamega/Shikulu/1787 equally between his two wives, and boundaries marked. He avers that he had bought a portion of land from the administrator and his mother, and another portion from John Luka Kunundu, after which he amalgamated the two portions. The two wanted to raise money for a commemoration of the deceased, and to build houses for themselves. He avers that he then facilitated the instant succession cause in order to get title to the land, among other reasons. He asserts that they all signed consents to the distribution proposed, and none of the beneficiaries raised any issue at confirmation. He states that the administrator only began to raise issue with his portion in 2021 after he had sold his portion to Moses Museti. He states that that is the person that he now wants to introduce to the cause as a third party. He also states that Josephat Shikoli Bwetete was not a party to the cause, as he never raised objection at any stage. He avers that the application was being brought too late in the day, some seven years after the grant was confirmed. He has attached copies of the sale agreements between him, the administrator and John Luka Kunundu. He has also attached a copy of a title deed for Kakamega/Shikulu/4391, but there is no narration as to how that title is related to the dispute herein.

4. The provisions under which the application is brought are not stated. The Law of Succession Act, Cap 160, Laws of Kenya, and the Probate and Administration Rules do not provide for applications for correction of certificates of confirmation of grant. What is closest is rectification of grants, under section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules. These provisions are about correction of errors relating to names and descriptions or setting and place of the death of the deceased or the purpose of a limited grant. Section 74 and Rule 43 are about rectification of grants of representation, and not certificates of confirmation of grant. Even if they do, which is not the case, what is sought to be corrected has nothing to do with errors relating to names and descriptions or setting and place of the death of the deceased or the purpose of a limited grant. There is, therefore, no basis for me to exercise discretion to grant the orders sought based on those provisions.

5. The other provision under which the administrator can seek to alter the contents of the certificate of confirmation of grant is through review of the orders made on the confirmation application, from which the certificate is generated. Review is not expressly provided for in probate legislation, but it is introduced through Rule 63 of the Probate and Administration Rules, by way of adoption of provisions of the Civil Procedure Rules, some of which include those for review. Review is granted on account an error on the face of the record, discovery of an important piece of evidence which was not available at the time the order was made, and any other sufficient reason. From the material before me, there is no evidence of any error on the face of the record, nor discovery of evidence that the administrator did not have when the confirmation orders were being made, neither am I persuaded that any other sufficient reason exists for review. I, therefore, equally cannot exercise the discretion to review the confirmation orders to facilitate altering the contents of the certificate of confirmation of grant. .

6. The application that led up to the confirmation of the grant herein was by the administrator himself. The affidavit in support, which carried the proposals that the court confirmed, was that of the administrator. The administrator attended court before the Judge on 17th July 2013, when the grant was confirmed. He was in court together with his half-brother, John Kunundu, and the respondent herein, Gilbert Muchesia. Both the administrator and John Kunundu addressed the court, confirming that they had sold land to the respondent. If there was a mistake, with respect to the proposals, the administrator would surely have noted the same when he placed the same for confirmation before the Judge. The respondent did not address the court at all, and he did not file any papers at all. It cannot, therefore, be said that he was to blame in any way for what transpired in court.

7. The final orders that I shall make in the circumstances are that the application dated 21st July 2014, is wholly without merit, and I hereby dismiss the same. Each party shall bear their own costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 13TH DAY OF MAY, 2022WM MUSYOKAJUDGEErick Zalo, Court AssistantMr. Iddi, instructed by Nandwa & Co., Advocates for the applicant/administrator.Ms. Khateshi, instructed by Itaya & Company, Advocates, for the respondent.