[2019] KEHC 9855 (KLR)
The court found that the application for rectification was merited because all parties agreed on the correct number of children left by the deceased. The omission of one beneficiary in the previous ruling was an error that needed correction to ensure just and equitable distribution of the estate. The court exercised...
Source-derived case information.
- Citation
- [2019] KEHC 9855 (KLR)
- Parties
- Applicant: Maneya Echakara Esaire; Applicant: Moses Gaunya Esaire; Respondent: Peresi Alunga Esaire; Respondent: Lidia Akwara Esaire
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 12 of 2000
- Procedural Posture
- Probate and Administration / Application for Rectification of Ruling
- Outcome
- Application for rectification allowed.
- Judges
- KW Kiarie
- Legal Topics
- Succession, Estate Distribution, Rectification of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Maneya Echakara Esaire
Applicant
Moses Gaunya Esaire
Applicant
Peresi Alunga Esaire
Respondent
Lidia Akwara Esaire
Respondent
Procedural Posture
Probate and Administration / Application for Rectification of Ruling
Legal Issues
- 1 Whether the court should rectify its earlier ruling to reflect the correct number of beneficiaries for the distribution of the deceased's estate.
- 2 Whether the estate should be distributed among 17 units instead of 16.
Ratio Decidendi
The court found that the application for rectification was merited because all parties agreed on the correct number of children left by the deceased. The omission of one beneficiary in the previous ruling was an error that needed correction to ensure just and equitable distribution of the estate. The court exercised its inherent power under Rule 73 of the Probate and Administration Rules to amend its earlier ruling, ordering that the estate be distributed among 17 units in accordance with section 40(1) of the Law of Succession Act. The rectification ensures that all beneficiaries are included and the distribution formula is correctly applied. The parties were also directed to provide a...
Court Disposition
Application for rectification allowed.
Orders
- The ruling delivered on 1st October 2015 is amended to reflect 17 units for distribution of the estate.
- The estate shall be distributed equally among 17 units in accordance with section 40(1) of the Law of Succession Act.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINSTRATION NO.12 OF 2000
IN THE ESTATE OF:
RAPHAEL ESAIRE PAPAOK............................................DECEASED
BETWEEN
MANEYA ECHAKARA ESAIRE
MOSES GAUNYA ESAIRE.............................................APPLICANTS
AND
PERESI ALUNGA ESAIRE
LIDIA AKWARA ESAIRE..........................................RESPONDENTS
RULING
1. Maneya Echakara Esaire and Moses Gaunya Esaire the applicants herein filed an application dated 8th October 2015 under sections 47 & 74 of the Civil Procedure Act and Rules 43, 63 &73 of the Probate and Administration Rules. They are seeking orders as follows:
a) That this Honourable Court be pleased to correct and or review its ruling which was delivered on 1st October 2015 to reflect the correct, number of children of the 3rd petitioner/ applicant and that the first house has 11 units.
b) That after such a review, the remainder of the deceased’s estate be subdivided equally among 17 units instead of 16.
c) That the costs be in the cause.
2. The application was premised on grounds that I have summarized as follows:
a) That the deceased was survived by 15 children and two widows.
b) That the Honourable court distributed the estate among 14 instead of 15 children.
3. The application was opposed by the other two co-petitioners on grounds that it seeks to have the matter heard afresh.
4. Though the applicants have erroneously cited the provisions of the Civil Procedure Act, their application is saved by dint of Rule 73 of Administration and Probate Rules that provides:
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.
5. In spite of opposing the application the applicant, Peresi Alunga Esaire, has agreed with the applicants on the number of the children the deceased left behind. I agree with the submissions by the counsel for the 3rd and the 4th petitioners who are the applicants herein that the other petitioners misunderstood the application. All the applicants are seeking is the inclusion of the beneficiary who was left out.
6. I am satisfied that the application is merited. I therefore make an order for the rectification sought. There will therefore be 17 units. The estate will therefore be distributed in accordance with the formula of equal distribution as provided under section 40(1) Of the Law of Succession Act. The ruling which was delivered on 1st October 2015 is amended to cater for 17 units, where the learned judge had applied 16 units as the denominator.
7. The parties will have 60 days from the date of this ruling to give a full and accurate account of the completed administration as provided for under section 83(g) of the Law of Succession Act.
8. Each party to bear own costs.
DELIVERED and SIGNED at BUSIA this 25th day of February 2019
KIARIE WAWERU KIARIE
JUDGE