[2013] KEHC 6203 (KLR)
The court found that the application, though styled as a rectification under Section 74 of the Law of Succession Act, was in substance a request to change the mode of distribution of the estate, which cannot be achieved through rectification but only by review. Since all beneficiaries consented to the proposed...
Source-derived case information.
- Citation
- [2013] KEHC 6203 (KLR)
- Parties
- MISSING: Peter NjongE Mwongi (Deceased); Applicant: Widow of the deceased (administrator); Respondent: Children of the deceased (beneficiaries)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1970 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application for Rectification of Certificate of Confirmation of Grant
- Outcome
- Application for review of confirmation proceedings allowed; certificate of confirmation of grant to be issued as per the proposed changes.
- Judges
- DN Musyoka
- Legal Topics
- Succession of Estates, Rectification of Grant, Review of Court Orders, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter NjongE Mwongi (Deceased)
MISSING
Widow of the deceased (administrator)
Applicant
Children of the deceased (beneficiaries)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Rectification of Certificate of Confirmation of Grant
Legal Issues
- 1 Whether the application for rectification of the certificate of confirmation of grant is properly brought under Section 74 of the Law of Succession Act.
- 2 Whether the court can review the mode of distribution of the estate as sought by the administrator.
- 3 Whether the court should exercise its inherent powers to allow the proposed changes to the distribution of the estate.
Ratio Decidendi
The court found that the application, though styled as a rectification under Section 74 of the Law of Succession Act, was in substance a request to change the mode of distribution of the estate, which cannot be achieved through rectification but only by review. Since all beneficiaries consented to the proposed changes, the court exercised its inherent powers under Rule 73 of the Probate and Administration Rules to invoke the review provisions of Order 45 of the Civil Procedure Rules. The confirmation proceedings were reviewed, and the changes to the distribution of the estate were allowed as proposed in the application.
Court Disposition
Application for review of confirmation proceedings allowed; certificate of confirmation of grant to be issued as per the proposed changes.
Orders
- The confirmation proceedings conducted on 9th June 2010 are reviewed in the terms proposed in the application dated 8th May 2013.
- A fresh certificate of confirmation of grant shall issue accordingly.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
SUCCESSION CAUSE NO: 1970 OF 2009
IN THE MATTER OF THE ESTATE OF PETER NJONGE MWONGI (DECEASED)
RULING
The summons dated 8th May 2013 is for rectification of the certificate of confirmation of grant dated 19th May 2010.
The grant made to the administrator on 20th January 2010 was confirmed on 9th June 2010. Under the certificate of confirmation of grant, the landed property was to be held by the widow of the deceased for the benefit of the children of the deceased. This rectification application seeks to determine the trust so that the landed property passes to the widow absolutely.
Although the application is premised on Section 74 of the Law of Succession Act and is said to be for rectification; the reality is that there are no errors of the sort envisaged by Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules. What the administrator seeks to to do is not to have errors rectified but to change the mode of distribution. Such a thing can only be achieved through review. Review is provided for under Rule 63 of the Probate and Administration Rules, which imports the review provisions from Civil Procedure Rules.
As the beneficiaries appear to be in agreement with the proposed changes, as evidenced by the consents filed with the application, I will exercise inherent powers under Rule 73 of the Probate and Administration Rules to invoke Order 45 of the Civil Procedure Rules. The confirmation proceedings conducted on 9th June 2010 are hereby reviewed in the terms proposed in the application dated 8th May 2013. A fresh certificate of confirmation of grant shall issue accordingly.
DATED, SIGNED and DELIVERED AT NAIROBI THIS 27th DAY OF June 2013.
W.M. Musyoka
JUDGE