[2018] KEHC 6406 (KLR)
The court held that rectification under Section 74 of the Law of Succession Act and rule 43(1) of the Probate and Administration Rules is strictly limited to correcting clerical errors or mistakes in names and descriptions. The court allowed the rectification of the deceased's name and the correction of a property...
Source-derived case information.
- Citation
- [2018] KEHC 6406 (KLR)
- Parties
- Applicant: Paul Kinyari Mwaura; Respondent: Hiram Kamau Mwaura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 584 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application for Rectification of Grant
- Outcome
- Application partly allowed.
- Legal Topics
- Rectification of Grant, Distribution of Estate, Consent of Beneficiaries, Errors in Names, Shares in Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kinyari Mwaura
Applicant
Hiram Kamau Mwaura
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Rectification of Grant
Legal Issues
- 1 Whether the certificate of confirmation of grant should be rectified to correct the deceased's name and property descriptions.
- 2 Whether redistribution of properties to beneficiaries can be effected through rectification without consent of all beneficiaries.
- 3 Whether the quantity of shares allocated to beneficiaries can be amended to 'all shares' without justification or consent.
Ratio Decidendi
The court held that rectification under Section 74 of the Law of Succession Act and rule 43(1) of the Probate and Administration Rules is strictly limited to correcting clerical errors or mistakes in names and descriptions. The court allowed the rectification of the deceased's name and the correction of a property description, as these were clear errors supported by documentary evidence. However, the court disallowed the redistribution of properties and the amendment of share allocations, finding that these changes amounted to a substantive variation of the confirmed grant, which requires the consent of all beneficiaries and cannot be achieved through rectification. The applicant failed...
Court Disposition
Application partly allowed.
Orders
- Prayer one (correction of deceased's name) and prayer three (correction of property description) of the application dated 10th January 2018 are allowed.
- Prayers two (redistribution of properties) and four (amendment of share allocations) are disallowed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 584 OF 2009
IN THE MATTER OF THE ESTATE OF RICHARD MWAURA KINYARIRO (DECEASED)
RULING
1. Vide a Chamber Summons for rectification of a grant dated 10th January 2018, the applicant herein sought rectification of certificate of confirmation of grant dated 19th day of September 2017 to reflect the following changes:
(a) That the name of the deceased herein be rectified to read Richard Mwaura Kinyariro alias Richard Mwaura alias R.M. Kinyariro instead of Richard Mwaura Kinyariro.
(b) That the certificate of confirmation of grant dated 19th day of September 2017 be rectified to indicate that L.R. No. Lari/Kirenga/1217 be given to Paul Kinyari Mwaura while the land parcel No. Longonot/Kijabe Block 2/7700 be shared equally between Paul Kinyariro Mwaura and Hiram Kamau Mwaura.
(c) That land L.R. No. Longonot/Kijabe Block 2/587 be rectified to read Longonot/Kinjabe Block 2/5878.
(d) That all the shares stated be amended by removing the indicated quantity and to have the same read “all shares” with National Industrial Credit, Housing Finance Company Ltd, Kenya Airways, Tourism Promotion (TPS) Limited, City Trust Ltd, Kenya Commercial Bank Ltd (Co-op Security Ltd, and City Breweries Investment Ltd.
2. Application is supported by grounds on the face of it and affidavit in support sworn by the applicant on 10TH January 2018. Application for rectification of a grant of representation or certificate of confirmation of grant by way of altering or amendment of the same is governed by Section 74 of the Law of Succession Act and rule 43(1) of the Probate and Administration rules. Rectification is therefore applicable and only limited to circumstances or situations where errors in names and descriptions as in setting out the time and place of deceased’s death, or the purpose in a limited grant.
3. I have carefully considered the application herein and the specific prayers being sought vis a vis the certificate of confirmation of grant issued on 19th September 2017. The first prayer is in relation to correction of the deceased’s name to read Richard Mwaura Kinyariro alias Richard Mwaura alias R.M. Kinyariro so as to conform with his identity as reflected in various title documents and his identity card. The prayer sought is well covered under Section 74 and rule 43(1) aforesaid hence the same is allowed as prayed.
4. With regard to prayer 2 seeking to redistribute some of the properties to some beneficiaries afresh, the same does not amount to rectification of an error. This prayer is seeking to amend the grant by way of review through a wrong provision of the law. Section 74 of the Law of Succession and rule 43(1) of the probate and administration rules cannot apply. Secondly, all beneficiaries must sign a consent to the fresh proposed mode of distribution being a new arrangement. The applicant was not able to explain why he wanted to change the already agreed and confirmed mode of distribution unilaterally. For the above stated reasons, prayer 2 is disallowed.
5. As concerns prayer No 3 seeking to rectify the property known as Longonot/Kijabe Block 2/587 to read Longonot Kinjabe Block 2/5878, the same is clear from the search certificate attached to the petition application. It is also an error curable under Section 74 and rule 43(1) aforesaid. Prayer 3 is therefore allowed as prayed.
6. In respect to prayer No. 4 seeking to remove the quantity or number of shares reflected against each beneficiary to read generally as “all shares” no explanation was given to justify those changes. Equally this will amount to variation of the individual shareholding without the consent of the rest of the beneficiaries which is necessary is necessary.
7. Accordingly, prayer one and three of the application dated 10th January 2018 are allowed and prayers 2 and 4 disallowed.
Order accordingly.
SIGNED, DATED AND DELIVERED AT NAIROBI ON THIS 11TH DAY OF APRIL, 2018.
J.N. ONYIEGO (JUDGE)
In the presence of:
Applicant…………………………………….In person
..…………………………………………… Court Assistant