[2016] KEHC 739 (KLR)
The court found that a genuine mistake had occurred in the Certificate of Confirmation of Grant by failing to specify the reversion of Plot No. 34 Kathiani to Joshua Muinde Kitolo and Lucas Mwendwa Muindi upon termination of the contract by Safaricom Company Ltd. Since the contract had terminated and the application...
Source-derived case information.
- Citation
- [2016] KEHC 739 (KLR)
- Parties
- Applicant: Joshua Muinde Kitolo; Applicant: Beatrice Mwanzia; Applicant: Ngei Ndunda; Applicant: Mutinda Wambua
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 377 of 2012
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Grant
- Outcome
- Application allowed; grant rectified as prayed.
- Judges
- DO Ogembo
- Legal Topics
- Rectification of Grant, Confirmation of Grant, Administration of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Muinde Kitolo
Applicant
Beatrice Mwanzia
Applicant
Ngei Ndunda
Applicant
Mutinda Wambua
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Grant
Legal Issues
- 1 Whether the Certificate of Confirmation of Grant should be rectified to specify that ownership of Plot No. 34 Kathiani reverts to Joshua Muinde Kitolo and Lucas Mwendwa Muindi upon termination of the contract by Safaricom Company Ltd.
- 2 Whether Plot No. 34 Kathiani should be confirmed to Joshua Muinde Kitolo and Lucas Mwendwa Muindi.
Ratio Decidendi
The court found that a genuine mistake had occurred in the Certificate of Confirmation of Grant by failing to specify the reversion of Plot No. 34 Kathiani to Joshua Muinde Kitolo and Lucas Mwendwa Muindi upon termination of the contract by Safaricom Company Ltd. Since the contract had terminated and the application was unopposed and supported by all administrators, the court exercised its discretion under Section 74 of the Law of Succession Act to rectify the grant and confirm the plot to the named individuals. The rectification was necessary to enable the applicants to fully administer the estate and register the property accordingly.
Court Disposition
Application allowed; grant rectified as prayed.
Orders
- The schedule in the Certificate of Confirmation of Grant issued to Joshua Muinde Kitolo, Beatrice Mwanzia, Ngei Ndunda and Mutinda Wambua on 25th July, 2014 is rectified in regards to Part II to read that the ownership of Plot No. 34 Kathiani reverts to Joshua Muinde Kitolo and Lucas Mwendwa Muindi, specifically,...
- Plot No. 34 Kathiani is hereby confirmed to Joshua Muinde Kitolo and Lucas Mwendwa Muindi, specifically.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 377 OF 2012
IN THE MATTER OF THE ESTATE OF NDUNDA KITOLO KITHANA – DECEASED
AND
IN THE MATTER OF AN APPLICATION FOR RECTIFICATION OF GRANT
BY:
JOSHUA MUINDE KITOLO …..….....…….1ST PETITIONERS/APPLICANTS
BEATRICE MWANZIA ……………...……2ND PETITIONERS/APPLICANTS
NGEI NDUNDA …………………………..3RD PETITIONERS/APPLICANTS
MUTINDA WAMBUA …………....……….4TH PETITIONERS/APPLICANTS
RULING OF THE COURT
1. The Summons for Rectification of Grant before the court is dated 9th December, 2015 and filed herein on 3rd February, 2016. The application seeks the following orders;
a. That the schedule in the Certificate of Confirmation of Grant issued to Joshua Muinde Kitolo, Beatrice Mwanzia, Ngei Ndunda and Mutinda Wambua on 25th July, 2014 be rectified in regards to Part II to read that the ownership of Plot No. 34 Kathiani revert to Joshua Muinde KitoloandLucas Mwendwa Muindi, specifically, upon termination of the contract by Safaricom Company Ltd.
b. That the Plot No. 34 Kathiani now be hereby confirmed to Joshua Muinde KitoloandLucas Mwendwa Muindi, specifically.
c. That costs of this application be provided for.
2. The application is supported by affidavit of Joshua Muinde Kitolo sworn on 9th December, 2015. The applicant’s case is that a Certificate of Confirmation of Grant was issued by this court to Joshua Muinde Kitolo, Beatrice Mwanzia, Ngei Ndunda & Mutinda Wambuaon 24th July, 2014. In the Schedule annexed to the Certificate of Confirmation of Granted a genuine mistake was made therein at part II whereby it was not specified that the ownership of Plot No. 34 Kathiani was to revert to Joshua Muinde Kitolo andLucas Mwendwa Muindi, specifically, upon termination of the contract by Safaricom Company Ltd. The contract has since terminated and the said Joshua Muinde Kitoloand Lucas Mwendwa Muindinow wish to have Plot No. 34 Kathiani confirmed in their name. The same cannot be confirmed without the orders of this court. The said plot No. 34 Kathiani be confirmed to Joshua Muinde KitoloandLucas Mwendwa Muindi. It is imperative that the sought orders of rectification be granted so as to enable the applicants wholly administer the estate of the deceased and to have the said Plot No. 34 Kathiani registered in the names of Joshua Muinde KitoloandLucas Mwendwa Muindi, the applicants herein.
3. The application is not opposed and is supported by the four administrators. I allow the application in the following terms;
a. That the schedule in the Certificate of Confirmation of Grant issued to Joshua Muinde Kitolo, Beatrice Mwanzia, Ngei Ndunda and Mutinda Wambua on 25th July, 2014 be rectified in regards to Part II to read that the ownership of Plot No. 34 Kathiani revert to Joshua Muinde KitoloandLucas Mwendwa Muindi, specifically, upon termination of the contract by Safaricom Company Ltd.
b. That the Plot No. 34 Kathiani now be hereby confirmed to Joshua Muinde KitoloandLucas Mwendwa Muindi, specifically.
c. That costs of this application shall be in the cause.
DATED AND DELIVERED AT MACHAKOS THIS 22NDDAY OF NOVEMBER, 2016.
E. OGOLA
JUDGE
In the presence of;
Mr. Kyalo holding brief for M/S Wambua for applicant
Court Assistant – Mr. Munyao