[2022] KEHC 10730 (KLR)

In re Estate of Malusi Kaia Kitaa (Deceased) (Succession Cause 31 of 2011) [2022] KEHC 10730 (KLR) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10730 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 31 of 2011

GV Odunga, J

June 13, 2022

IN THE MATTER OF THE ESTATE OF THE LATE MALUSI KAIA KITAA-DCD AND IN THE MATTER OF;

Between

Teresia Mikayo Malusi

1st Administrator

Nicholas Wambua Malusi

2nd Administrator

and

Patrick Mbwika Mutiso

Objector

and

Douglas Mutua Malusi

Protestor

Ruling

1. By an amended Summons for Rectification of Grant dated 21st April, 2022, the Administrators herein seek to have the letters of administration intestate and the certificate of confirmation of grant issued herein further rectified as regards the name of the 2nd administrator, Nicholas Wambua Munyao to read Wambua Nicholas Munyao. According to the applicants. During the transmission it was discovered that the name of the said Wambua Nicholas Munyao had been erroneously indicated as Nicholas Wambua Malusi yet his ID Card indicates his name as the former.

2. This prayer was opposed by the 2nd Protestor primarily on the ground that there is no affidavit evidence that the deceased herein disclosed that Wambua Nicholas Munyao was his son. According to him, this Court’s power is only limited to distribution of the estate and not change of names and that if the said Wambua Nicholas Munyao intends to change his name he ought to approach the Bureau of Registration.

3. It was further sought that the name of Patrick Muthoka Kisingu, the 1st Protestor, be removed from the share of land number Machakos/Mua Hills/728 in the schedule of the distribution. According to the administrators, the said Patrick Muthoka Kisingu has already sold his share of Land Number Machakos/Mua Hills/728 to Collins Kitaka Kaloki hence it would be an expensive exercise to have his share go to him then transferred to the said Collins Kitaka Kaloki. A copy of an agreement for sale was attached.

4. While the said Patrick Muthoka Kisingu admitted that there was a sale transaction between him and the said Collins Kitaka Kaloki, it was his position that out of the 5 acres that he was entitled to, he only disposed of 3 acres hence he was entitled to retain the remaining 2 acres. The 2nd Protestor supported the position taken by the 1st Protestor.

5. The third prayer was for the removal of the name of Patrick Mbwika Mutiso from share number Machakos/Mua Hills/731 and replacement with Reginah Katulu Mbwika on the ground that the latter was the wife of the former who is now deceased. None of the parties opposed this limb of the application.

Determination 6. I have considered the application, the affidavit both in support of the application and contentions of the parties.

7. Section 74 of the Law of Succession Act provides that: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, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.

8. The 2nd Protestor seemed to have based hi objection to the first prayer on the decision of I associate myself with the decision of Musyoka, J in In re Estate of Ernest Kerry Komo (Deceased) [2016] eKLR that:“Once a grant is confirmed and the property is distributed, as is the case here, the probate court becomes functus officio. The property in question is no longer estate property. It no longer vests in the administrators. It is no longer subject to the Law of Succession Act, Cap 160, Laws of Kenya, from which the probate court draws its authority and jurisdiction.”

9. My understanding of that decision is that once the estate is distributed, the Court cannot, without reviewing the order confirming the Grant purport to deal with the estate since there would be no property belonging to the state to be dealt with. However, dealing with the estate is different from rectification of errors in names and descriptions whether or not the grant has been confirmed as expressed in section 74 of the Act. I associate myself with the decision of Mativo, J in A O O & 6 others vs. Attorney General & Another [2017] eKLR that:“This court is not powerless to grant a relief where the interests of justice demand...The fundamental duty of the court is to do justice. The court is required, where the circumstances so require, to act upon the assumption of the possession of an inherent power to do real and substantial justice for the administration, for which alone, it exists.”

10. The grant having been confirmed, the issue whether or not Wambua Nicholas Munyao was a son of the deceased is no longer in issue if it is shown that the person to whom the share was allocated as Nicholas Wambua Munyao is actually Wambua Nicholas Munyao. The 2nd protestor has not disputed that that is the position.

11. Accordingly, I find no merit in the objection to prayer 1. Accordingly, I direct that the letters of administration intestate and the certificate of confirmation of grant issued herein be and is hereby further rectified as regards the name of the 2nd administrator, Nicholas Wambua Munyao to read Wambua Nicholas Munyao.

12. Regarding the 2nd prayer, the Certificate of Confirmation of Grant herein dated on 29th October, 2019 reveals that Land Parcel No. Machakos/Mua Hills/728 was to be given to Collins Kitaka Kaloki and Patrick Muthoka Kisingu. It is not in dispute that 3 acres thereof ought to go to Collins Kitaka Kaloki. Accordingly, I direct that the said Certificate of Confirmation of Grant be further rectified to show that 3 acres of Land Parcel No. Machakos/Mua Hils/728 be registered in the name of Collins Kitaka Kaloki.

13. It is so ordered.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 13TH DAY OF JUNE, 2022. G. V. ODUNGAJUDGEIn the presence of:Mr Muumbi for the ApplicantMr Patrick Muthoka KisinguMr Nichlas Wambua MunyaoMr Collins Kitaka KalokiMs Teresia Kyalo MalusiCA Susan