[2023] KEHC 25192 (KLR)
The court found that although the rectification sought was not strictly within the scope of section 74 of the Law of Succession Act, it was necessary to facilitate the implementation of the grant. The court exercised its discretion under section 47 of the Law of Succession Act and rule 73 of the Probate and...
Source-derived case information.
- Citation
- [2023] KEHC 25192 (KLR)
- Parties
- Applicant: Dores Kawira Murungi; Respondent: Kenneth Bundi Gerrald; Respondent: Johnson Kimandi Erastus
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 8 of 2017
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Grant
- Outcome
- Application allowed. Grant to be rectified as prayed. No order as to costs.
- Judges
- LW Gitari
- Legal Topics
- Rectification of Grant, Succession Procedure, Removal of Deceased Beneficiary
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dores Kawira Murungi
Applicant
Kenneth Bundi Gerrald
Respondent
Johnson Kimandi Erastus
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Grant
Legal Issues
- 1 Whether the grant of representation should be rectified to remove the name of a deceased beneficiary and allocate the land parcel solely to the surviving beneficiary.
- 2 Whether the court has discretion to order rectification in circumstances not strictly covered by section 74 of the Law of Succession Act.
Ratio Decidendi
The court found that although the rectification sought was not strictly within the scope of section 74 of the Law of Succession Act, it was necessary to facilitate the implementation of the grant. The court exercised its discretion under section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules to allow the rectification, as the application was unopposed and no prejudice would be caused. The name of the deceased beneficiary, Floric Mukwanjeru Bauni, was ordered to be removed from the grant to enable the surviving beneficiary, Lucy Gatune Bauni, to receive the land parcel as intended.
Court Disposition
Application allowed. Grant to be rectified as prayed. No order as to costs.
Orders
- The name of Floric Mukwanjeru Bauni, now deceased, shall be removed from the grant.
- The grant is rectified as prayed.
Full Case Text
Judgment text and source record
24 paragraphs
In re Estate of M'Bauni M'Ichirai alias Gerard Bauni alias Bauni Chirai (Deceased) (Succession Cause 8 of 2017) [2023] KEHC 25192 (KLR) (2 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25192 (KLR)
Republic of Kenya
In the High Court at Chuka
Succession Cause 8 of 2017
LW Gitari, J
November 2, 2023
Between
Dores Kawira Murungi
Applicant
and
Kenneth Bundi Gerrald
1st Administrator
Johnson Kimandi Erastus
2nd Administrator
Ruling
1. The applicant Kenneth Bundi Gerrald and Johnson Kimandi Erastus have filed an undated summons for Rectification of Grant filed in court on December 6, 2022.
2. Their prayer is that the rectified certificate of confirmation of grant issued to the applicants on July 8, 2019 be further rectified by replacing Floric Mukwanjeru Bauni with Caroline Gachoki Gerrald since Floric Mukwanjeru Bauni is now deceased.
3. The summons is supported by the Affidavit sworn by the applicant. The affidavit is undated. The applicants aver that Floric Mukwanjeru Bauni and Lucy Gatune Bauni were given Land Parcel No. Mwimbi/Chogoria/528 measuring 0. 50 acres. They aver that the grant should be rectified so that the land Parcel No, Mwimbi/Chogoria/528 goes to Lucy Gatune Bauni.
4. I have considered the application. I note that the two were jointly allocated the said land parcel. One is deceased. The grant ought to be amended to remove the name of the beneficiary who is deceased. I note that the application is not opposed. The rectification is necessary in order to facilitate the execution of the grant. Section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules gives this court discretion to issue such orders as may be necessary to meet the ends of justice or to prevent abuse of the process of the court and such orders as may be expedient.
5. In this matter though the change to be made on the grant is not what is envisaged under section 74 of the Law of Succession Act, it is my view that rectification is necessary to facilitate the implementation of the grant. There is no prejudice as the application is not opposed.
6. I find that the application has merits. I allow it and order that the grant be rectified as prayed. The name of Floric Mukwanjeru Bauni who is now deceased shall be removed from the grant.
7. I make no orders as to costs.
DATED, SIGNED AND DELIVERED AT CHUKA THIS 2NDDAY OF NOVEMBER 2023. L.W. GITARIJUDGE