[2023] KEHC 26689 (KLR)

In re Estate of M’mwari Makangu (Deceased) (Succession Cause 276 of 2002) [2023] KEHC 26689 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26689 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 276 of 2002

TW Cherere, J

December 14, 2023

IN THE MATTER OF THE ESTATE OF M’MWARI MAKANGU (DECEASED)

Between

Alice Mukami M’itwamwari

Petitioner

and

Cornelius Mbaya M’itwamwari

1st Administrator

Henry Miriti Jacob

2nd Administrator

and

Faith Ithima Mwita & 4 others

Interested Party

Ruling

1. I have considered the summons for rectification dated September 27, 2023 supported by the affidavits of Faith Ithima Mwita and Caroline Karwira Rimta both sworn on October 3, 2023, the annexures thereto and the affidavit in response sworn by Henry Miriti Jacob on November 20, 2023.

2. 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 the Probate and Administration Rules and 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. I may add that such other minor errors in that genre could also be rectified

3. In the matter of the estate of Geoffrey Kinuthia Nyamwinga (deceased) [2013] eKLR where the court stated;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…….

4. In the matter of the estate of Hasalon Mwangi Kahero [2013]eKLR, the court stated:“when dealing with an application for rectification of grant to add a full name of person who was omitted. 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 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.

5. In this case the applicants seek to redistribute the estate without consensus from other beneficiaries. Cornelius Mbaya M’Itwamwari who is alleged to have surrendered his share in LR. Abothuguchi/Ruiga/348 has not sworn an affidavit to confirm that position. Additionally, the application introduces new beneficiaries to the estate without explaining the basis on which they ought to benefit from deceased’s estate. Furthermore, there is no surveyor’s report to support the allegation that LR. Abothuguchi/Mariene/818 cannot be distributed in three equal shares as directed by the court nor are death certificates annexed to confirm the death of some of the beneficiaries.

6. From the foregoing, I find that the summons for rectification dated September 27, 2023 is unmerited and it is disallowed.

7. I note that the certificate of confirmation of grant in this matter has not been implemented since it was issued on March 13, 2019 and subsequently amended on November 5, 2019.

8. Having been appointed administrators of the estate, notice is issued to Cornelius Mbaya M’Itwamwari and Henry Miriti Jacob that the court will not hesitate to revoke their appointment if they do not discharge their duties under section 83 of the Law of Succession Act cap 63 Laws of Kenya.

9. This cause shall be mentioned on March 7, 2024 to confirm distribution of the estate

DATED AT MERU THIS 14TH DAY OF DECEMBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Applicant & I.Parties - N/A for Maitai Rimita & Co AdvocatesFor 1st Administrator - N/AFor 2nd Administrator - Mr. Gichunge for Gichunge Muthuri & Co. Advocates