[2021] KEHC 2961 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO.213 OF 1997

IN THE MATTER OF THE ESTATE OF PERMIUSM’MUGAMBI Alias PERMINUS

MUGAMBI RINTURI Alias M’MUGAMBIRINTURIAlias P.M MUGAMBI (DECEASED)

CAROLINE GACHERI MURERWA...................................................................APPLICANT

VERSUS

FLORENCE KINAITORE IMATHIU............................PETITIONER/1ST RESPONDENT

LYDIA KURI MURERWA.........................................................................2ND RESPONDENT

ERIC MUGUNA MURERWA...................................................................3RD RESPONDENT

STEPHEN MWONGERA RINTURI.......................................................4TH RESPONDENT

AND

TABITHA MWARI ITWARUCHIU.....................................................INTERESTED PARTY

RULING

1. The application I am called upon to determine is dated 3/3/2021, brought pursuant to Rule 43(1) of the Probate and Administration Rules. In it, the petitioner/1st respondent, Florence Kinaitore Imathiu, seeks rectification of the certificate of confirmation of grant in the following respects:- inclusion of Land Parcel No. NTIMA/IGOKI/1812 and the same to go to Festus Guantai Mugambi; rectification of the name of the deceased herein to read Perminus M’Mugambi Alias Perminus M’Mugambi Rinturi Alias M’Mugambi Rinturi Alias Mugambi Rinturi Alias P.M Mugambiinstead of Perminus M’Mugambi Alias Perminus M’Mugambi Rinturi Alias M’Mugambi Rinturi Alias P.M Mugambi.

2. The application is supported by the affidavit of the petitioner sworn on even date and grounds set out therein. She argues that NTIMA/IGOKI/1812, which was inadvertently left out, ought to be included so that administration of the estate can be completed. She further avers that they are all in agreement that the said property should go to Festus Guantai Mugambi absolutely. She further wishes to have the name of the deceased rectified, so that it conforms to the name indicated on the title to the said property. The application was not opposed by as intimated to court by both Mr Muthomi and Miss Kaunyangi.

3. On 4/8/2021, counsels for the applicant and the interested party intimated to court that they would not be opposing this application at all. This being a family matter, civil claim by nature, the dispute belongs to the parties and the court cannot infer a dispute if parties say there is a consensus. I have borne in mind the fact that rectification of a grant under Section 74 of the Law of Succession and Rule 43(1) of the Probate and Administration rules is in respect of errors and mis-descriptions only. see Re Estate of Njagi Rurima (Deceased)[2020] eKLR. the estate.”

4. The court is satisfied with the explanation on the need to rectify the name of the deceased to align with the name on the title to NTIMA/IGOKI/1812. It has equally been established that the said property was inadvertently left out of the schedule for distribution. It is undisputed that the said property formed part of the deceased estate as evidenced by the annexed certificate of official search. It was further confirmed that all the beneficiaries were agreeable to the proposed rectification. To that end, I invoke the provisions of section 47 of the Act and accordingly allow the application dated 3/3/2021 in its entirety and as prayed.

5. When the matter was in court on the 12/5/2021, it was directed that all outstanding issues be coalesced and resolved once and for all so that the path is paved for the conclusion of the administration. For that reason, it was directed that parties file submissions and take positions on how the estate property known as Meru Municipality/Block 11/147 should be shared out. That direction was informed by the decision of the court, Gikonyo j, dated the 16/12/2020, by which the distribution of that single property was left for determination by the court at a later date.

6. Pursuant to such directions, only the applicant and the interested party filed written submission as Ms Maore intimated to court that her client was not interested in the subject property. It thus turns out that the dispute is between the applicant and the interested party and limited to the question whether the property be shared equally between the two sons of the deceased or if it be shared into three equal parts between a son to the deceased and two grandchildren on account of their deceased father.

7. I have perused and appreciated the two sets of submissions and the record of the file including the decision by Gikonyo J dated the 14/12/2020. It is of note that in the application partly determined by Gikonyo j, it was proposed that the said property should be sold, and the proceeds therein shared equally among the 3 beneficiaries. In the submissions by the interested party, filed on 26/7/2021, she proposes that the contested property ought to be shared equally between the two sons of the deceased; namely Stephen Mwongera Rinturi and Francis Murerwa (now deceased). That share of Francis Murerwa (now deceased) was to be held by his widow Lydia Gacheri Murerwa in trust for Caroline Gacheri Murerwa and Eric Muguna Murerwa.

8. The applicant in her submissions filed on 9/7/2021 maintains that the contested property ought to be shared equally among the 3 beneficiaries, in strict compliance with the certificate of confirmation of grant dated 21/7/2011.

9. I have keenly looked at the decision of Emukule J dated 1/4/2009 and in particular at the distribution of the contested property. He directed that the contested property be distributed as follows:

MERU MUNICIPALITY KIRUKURI BLOCK 11/149 (Undeveloped prime double plot in Meru Town)

1. To Lydia Kuri Murerwa in trust for

a) Caroline Gacheri Murerwa

b) Eric Muguna Murerwa In equal shares

and

2. Stephen Mwongera Rinturi

10 My understanding upon reading of the above decision on distribution is that Lydia would be holding her deceased husband’s share in trust for her two children, who were then minors. There was no separate interest to be held or acquired by the two minors. Their share was one half of the property while the other half would remain with their uncle Stephen Mwongera Rinturi. That is the plain and reasonable understanding and interpretation of the judgment by Emukule j. It thus matters not that a certificates of confirmation of grant dated 28/05/2010 and that of 21/07/2011 gave each of the children of the deceased beneficiary each equal share with their uncle. That is an error which however caused must be corrected. It is imperative for correction because a certificate of confirmation of grant, is a formal expression of the decision of the court and has no option but to conform with the decision. On the basis that the two certificates of confirmation do not conform with the decision, I do direct that they be rectified in so far as Parcel No Meru Municipality/ Kirukuri Block 11/149to show that the property be share equally so that Caroline Gacheri Murerwaand Eric Muguna Murerwatake one half while the other half goes toStephen Mwongera Rinturi

11. The upshot from the foregoing analysis is that there shall be issued a rectified certificate of confirmation of grant forthwith to reflect the distribution of the subject property as decreed by the judgment of Emukule j dated 1st April 2009.

12. Upon the certificate so issuing, let the administrator move and have the administration concluded by way of transfer the estate to the beneficiaries. The matter will be mentioned on the 09/03/2021 to confirm compliance.

DATED SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 13TH DAY OF OCTOBER, 2021

PATRICK J.O OTIENO

JUDGE

In presence of

Mr. Mutuma for administrator

Mr. Muthomi for applicant/beneficiaries

PATRICK J.O OTIENO

JUDGE