[2023] KEHC 25497 (KLR)

In re Estate of Ramesh Mulchand Shah (Deceased) (Succession Cause 2355 of 2012) [2023] KEHC 25497 (KLR) (Family) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25497 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2355 of 2012

EKO Ogola, J

November 16, 2023

In the matter of

Anisha Ramesh Shah

Executor

Ruling

1. Before this Court is summons for rectification of grant dated 14th February 2019. The executrix prays for the following orders: -a.That the Grant of Probate issued to the said Anisha Ramesh Shah and Indira Ramesh Mulchand Shah (who is since deceased) in this matter on the 24th January, 2013 be rectified in the following respects: -i.The number of Barclays Bank of Kenya Limited shares be amended from 1282 shares to 34180 sharesii.Indira Ramesh Mulchand Shah who is since Deceased be removed as an Executrix in the Estate of the Deceased and Anisha Ramesh Shah remain as the sole Executrix of the Estateiii.That beneficiary of the Estate Indira Ramesh Mulchand Shah who is now deceased be substituted with Nainesh Ramesh Shah, Anisha Ramesh Shah and Anjlee Yogesh Shah in accordance with the Deceased’s will dated 24th June, 2011iv.That Nainesh Ramesh Shah’s share of the Estate be held in trust for him by Anisha Ramesh Shah who is the proposed court appointed Trustee.b.That the Certificate of Confirmation of Grant dated 26th day of November 2013 be amended to include the above rectification.c.That the costs of this Application be provided for.

2. The Summons are supported by the affidavit of the executrix.

3. The deceased died testate on 30th June 2011. The executors named in the Will were Indira Ramesh Mulchand Shah (deceased on 16th July 2017) and Anisha Ramesh Shah. They were issued with Grant of Probate with a written Will on 24th January 2013. The grant was confirmed on 26th November 2013.

4. The executrix deposed that there is an error as to the number of Barclays Bank of Kenya Limited shares owned by the Deceased which appear in the Grant as 1282 shares instead of 34,180 shares as appears in the Dividend Notice for the financial year ending 31st December 2017.

5. Furthermore, she averred that since her co-executrix Indira Ramesh Mulchand Shah has passed away, her name should be removed as an executrix of the estate and vest the duties and responsibility of executing the estate to her as the sole surviving executrix.

6. According to the executrix, the sole beneficiary of the estate of the late Indira Ramesh Mulchand Shah met her demise before the estate could vest on her per the Will. She deposed that the deceased Will provided that if the beneficiary did not survive the deceased by more than thirty days then the estate be divided equally among the deceased children Anjlee Yogesh Shah, Nainesh Ramesh Shah, and Anisha Ramesh Shah. Therefore, the confirmed grant of probate should be amended by substituting the sole beneficiary in the Will Indira Ramesh Mulchand Shah with Anjlee Yogesh Shah, Nainesh Ramesh Shah, and Anisha Ramesh Shah with the deceased estate vesting in them equally.

7. The executrix further stated that the shares that belong to Nainesh Ramesh Shah should be held in trust for him by Anisha Ramesh Shah who is the appointed court-appointed guardian and manager of the estate of the said Nainesh Ramesh Shah who has been adjudged to be a person suffering from mental disorder. Annexed is a copy of the court’s decree in Misc. Case No. 180 of 2019 dated 14th July 2023.

Determination 8. I have considered this Summons for Rectification of Grant and the Affidavit in support thereto. Rectification of Grants is provided for by section 74 of the Law of Succession Act, cap 160, Laws of Kenya which provides as follows:-“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, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.”

9. Rule 43(1) of the Probate and Administration Rules further stipulates that:-“43(1) Where the holder of a grant seeks pursuant to the provisions of section 74 of the Act rectification of an error in the grant as to the names of descriptions of any person or thing or as to the time or place of the death of the deceased or, in he case of a limited grant, the purpose for which the grant was made, he shall apply by summons in Form 110 for such rectification through the registry and in the cause in which the grant was issued.”

10. From the aforementioned provisions, rectification is allowed to correct a misdescription of a property or to correct a name which has not been fully or properly described in the Grant. In this instant case, there was an error in the description of the amount of shares held by the deceased. From the Dividends Notice of Barclays Bank of Kenya, the deceased owned 34180 shares instead of 1282 shares as stated in the Certificate of confirmed grant. This error falls within the ambit of Section 74.

11. The executrix further prayed for the removal of the name of the deceased co-executrix from the Certificate of Confirmed Grant. Section 81 of the Law of Succession Act for death of one of the personal representatives. It states that:-“Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them:Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of such trust until the court has made a further grant to one or more persons jointly with him.”

12. From the foregoing, the powers, duties, and responsibility of administering the estate are now vested in the surviving executrix.

13. Section 74 does not allow for the substitution of beneficiaries as stated in the confirmed grant. However, it must be appreciated that as per the deceased Will, the entire estate was to be transferred to the deceased widow Indira Ramesh Mulchand Shah who passed away before the estate could be transferred to her. The deceased estate should still be able to be distributed. This Court is clothed with jurisdiction to issue orders that will meet the end of justice. Rule 73 of the Probate and Administration Rules provides that:-“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

14. From the foregoing, the summons dated 14th February 2019 is allowed as prayed. The Certificate of Confirmed Grant dated 26th November 2013 be rectified in the following way:-a.The number of Barclays Bank of Kenya Limited shares be amended from 1282 shares to 34,180 shares.b.Indira Ramesh Mulchand Shah be removed as an Executrix in the Estate of the Deceased and Anisha Ramesh Shah to be the sole Executrix of the Estate of the deceased.c.The beneficiaries of the Estate of Indira Ramesh Mulchand Shah be substituted with Nainesh Ramesh Shah, Anisha Ramesh Shah and Anjlee Yogesh Shahd.That the shares belonging to Nainesh Ramesh Shah be held in trust for him by Anisha Ramesh Shah as the guardian and manager of his estate.e.Costs be in the cause.

It is so ordered

DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF NOVEMBER 2023……………………………………E.K. OGOLAJUDGE