[2022] KEHC 14935 (KLR)

In re Estate of Lydia Nyambura Kimandu (Deceased) (Succession Cause 2618 of 1995) [2022] KEHC 14935 (KLR) (Family) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14935 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2618 of 1995

MA Odero, J

October 14, 2022

IN THE MATTER OF THE ESTATE OF LYDIA NYAMBURA KIMANDU (DECEASED)

In the matter of

James Mwangi Kimandu

Applicant

Ruling

1. Before this Court for determination is the summons for Rectification of Grant dated 27th August 2020 by which the Applicant James Mwangi Kimandu seeks the following orders:-“1. That the certificate of Grant issued to the said James Mwangi Kimandu in this matter on 25th September 2018 be rectified and amended.2. The costs of this application be provided for.”

2. The summons was supported by the Affidavit of even date sworn by the Applicant.

3. The Respondent Grace Mugure Wamai opposed the application through her Replying Affidavit dated 12th October 2021. The summons was canvassed by way of written submissions. The Applicant filed the written submissions dated 24th November 2021 whilst the Respondent relied upon her submissions dated 27th June 2022.

Background 4. The Succession Cause relates to the estate of the late Lydia Nyambura Kimandu (hereinafter ‘the Deceased’) who died intestate on 27th June 1994. A copy of the Death Certificate Serial Number 336011 is annexed to the Supporting Affidavit sworn by the Respondent on 14th September 2017.

5. The Deceased was survived by the following persons-i.Grace Mugure Wamai – the Respondent herein.ii.Edith Wambui Kimanduiii.James Mwangi Kimanduiv.Priscilla Njoki Kimanduv.Margaret Wanjiru Kimanduvi.Martha Muringo Kimanduvii.Jesse Murigi Kimanduviii.Joyce Waweru Kimandu – Deceasedix.Cyrus Mitirii Kimandux.Alice Karen Wangechi – Deceased.

6. The estate of the Deceased comprised several assets. Following Court Annexed Mediation a Grant of letters of Administration Intestate were issued jointly to the Applicant James Mwangi Kimandu and Edith Wambui Kimandu, on 17th January 1996. The Grant was duly confirmed on 25th September 2018. The confirmed Grant set out the mode of distribution of the estate.

7. The Respondent Grace Mugure Wamai is one of the beneficiaries of the estate and a sister to the Applicant.

8. The Applicant by this summons seeks to rectify the confirmed Grant issued by the court on 25th September 2018. The Applicant avers that several properties belonging to the estate were erroneously described in the confirmed grant. The Applicant further averred that the confirmed Grant purported to distribute assets, which did not in actual fact belong to the Deceased. According to the Applicant the estate of the Deceased comprised of only two (2) properties namely:-(a)Kiine/Gacharo/592(b)Kiine/Kagio/1503

9. According to the Applicant only the above two (2) properties are available for distribution to the beneficiaries.

10. Finally the Applicant in his supporting Affidavit goes on to propose a fresh mode of distribution of the estate. He prays that the Grant be rectified/amended to incorporate these changes.

11. The application for rectification of Grant is strenuously opposed by the Respondent. She avers in her Replying Affidavit that all the assets listed in the confirmed grant belonged to the Deceased and therefore form part of the estate. The Respondent further avers that the Applicant and one of the other beneficiaries Jesse Munyi have continued to intermeddle with the estate.

12. The Respondent complains that to date the estate remains unadministered despite the Grant having been confirmed way back in the year 2018. The Respondent accuses the Applicant of illegally and fraudulently attempting to sell Title No. Kiine/Sagana/18 comprising two (2) acres and four (4) acres of land along the Nyeri-Sagana Road belonging to the estate. That the Applicant has infact sold and/or transferred other assets belonging to the estate before the Succession Cause was completed thereby denying the beneficiaries equity in the distribution of the estate.

13. Finally the Respondent submits that the changes being proposed by the Applicant cannot be achieved under a summons for rectification of Grant. That should the summons be allowed the Respondent as well as other beneficiaries will suffer prejudices, irreparable loss and damage. She urges the court to dismiss the summons entirely.

Analysis and Determination 14. I have carefully considered the summons before this court, the Reply filed by the Respondent as well as the written submissions filed by both parties. The only issue for determination is whether this summons for rectification of Grant ought to be allowed.

15. Rectification of grants is provided for in Section 74 of the Law of Succession Act, Cap 160, Laws of Kenya and Rule 43(1) of theProbate and Administration Rules. Section 74 provides as follows: -“74. Errors in names and descriptions, or in setting fourth the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.”

16. Rule 43(1) provides as follows:-“Where the holder of a grant seeks pursuant to the provisions of section 74 of the Act rectification of an error in the grant as to the names or descriptions of any person or thing or as to the time or place of death of the deceased or, in the case of a limited grant, the purpose for which the grant was made, he shall apply by summons in Form 110 for such rectification through the registry and in the cause in which the grant was made.”

17. From the language of section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules, the scope of ‘rectification’ of Grants of representation is limited to errors in names and descriptions, or in setting forth the time and place of the deceased’s death, or the purpose in a limited Grant. Such other minor errors in that genre can also be rectified through a Summons for rectification of Grant.

18. The Applicant has prayed to have the Grant rectified in order to correct properties which were mis-described in the confirmed Grant. This certainly would fall under the scope of Section 74.

19. However, the Applicant did not stop there. He went on to claim that certain assets that were included in the confirmed Grant did not actually form part of the estate of the Deceased. The Applicant then went ahead to propose a fresh mode of distribution of the estate, which was entirely different from that contained in the certificate of confirmed Grant, dated 25th September 2018.

20. The changes being proposed by the Applicant are substantial and far reaching. They materially alter/affect the confirmed Grant issued by the court. In no way can the proposed amendments be described as minor errors in names and descriptions.

21. The question of when a Grant may be rectified has been addressed severally by the courts in Kenya.

22. In the matter of the Estate of Hasalon Mwangi Kahero [2013] eKLR it was states as follows: -“An error is essentially a mistake. For the purposes of Section 74 and Rule 43, it must relate to a name or description or time and place of the deceased’s death, or the purpose of a limited grant. Is an omission of a name or in the description of a thing an error? It would be an error if say, a word in the full name of a person is omitted or a word or number or figure in a description is omitted. But where the full name of a person or a full description of a thing or property is omitted, it would be stretching the meaning of the word “error” too far to say that that would amount to the error or mistake envisaged in Section 74 and Rule 43. ” (own emphasis)

23. Similarly in the matter of the estate of Geoffrey Kinuthia Nyamwinga (deceased) [2013] eKLR the Court held that:-“The law on rectification or alteration of grants is Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules……..What these provisions mean is that errors may be rectified by the Court where they relate to names or descriptions, or setting out of the time or place of the deceased’s death. The effect is that the power to order rectification is limited to those situations, and therefore the power given to the court by these provisions is not general……………Where a proposed amendment of a grant cannot be dealt with under the provisions of Section 74 of the Law of Succession Act, the applicant ought to approach the Court under Order 44 of the Civil Procedure Rules. A review under Order 44 of the Civil procedure Rules may be sought upon discovery of new and important matter or on account of some mistake or error apparent on the fact of the record, or for any sufficient reason. The applicant in this case should have moved the court under this provision – Order 44 of the Civil Procedure rules on account of some mistake or error apparent on the face of the record and on the ground that there exists a sufficient reason for review of the certificate of the confirmation of grant. (own emphasis)

23. This is a Succession Cause that has been ongoing since 1995. It is a very contentious matter. The parties were referred to mediation at which consensus was eventually reached. It boggles the mind that four (4) years after the Grant had been confirmed the Applicant suddenly realizes that some of the properties listed in the Grant do not in fact belong to the estate. In my view there is certainly more to this summons than meets the eye.

24. In any event the changes/amendments being proposed by the Applicant are in my view substantial as they go to the root or core of the entire estate as well as the distribution thereof. A summons for rectification of Grant cannot be the correct vehicle to remove assets from an estate and/or to materially alter/amend the mode of distribution as contained in the confirmed Grant. The scope of rectification provided for by Section 74 of the Law of Succession Act is limited and cannot cover such substantial alterations. The changes being proposed by the Applicant require much more interrogation and may only be endorsed by the court after a full hearing. The remedy available to the Applicant is to seek ‘review’ under Order 44 of the Civil Procedure Rules 2010 the confirmed Grant and to apply for issuance of a new confirmed grant, which would incorporate the changes he is now proposing.

25. Finally I find no merit in this application. The summons for rectification of Grant dated 27th August 2020 is dismissed in its entirety. This being a family matter each side will bear its own costs.

DATED IN NAIROBI THIS 14TH DAY OF OCTOBER, 2022. ................................MAUREEN A. ODEROJUDGE