[2022] KEHC 27005 (KLR)
The court found that the application sought substantive changes to the certificate of confirmation of grant, specifically the removal and replacement of names of deceased beneficiaries, which is beyond the limited scope of rectification permitted under section 74 of the Law of Succession Act and rule 43(1) of the...
Source-derived case information.
- Citation
- [2022] KEHC 27005 (KLR)
- Parties
- Applicant: Monica Murugi Mungai; Respondent: James Kinyanjui; Respondent: Richard Kungu; Respondent: Esther Waithira Ndenderu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1228 of 2006
- Procedural Posture
- Succession Cause / Ruling on Application for Rectification of Certificate of Confirmation of Grant
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Succession, Rectification of Grant, Distribution of Estate, Intestate Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monica Murugi Mungai
Applicant
James Kinyanjui
Respondent
Richard Kungu
Respondent
Esther Waithira Ndenderu
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Rectification of Certificate of Confirmation of Grant
Legal Issues
- 1 Whether the certificate of confirmation of grant can be rectified under section 74 of the Law of Succession Act to remove and replace names of deceased beneficiaries.
- 2 Whether the applicant is entitled to replace the names of her deceased brothers with her own name or that of another beneficiary.
- 3 Whether the dispute regarding the sharing of a deceased beneficiary's entitlement among his families can be resolved in this application.
Ratio Decidendi
The court found that the application sought substantive changes to the certificate of confirmation of grant, specifically the removal and replacement of names of deceased beneficiaries, which is beyond the limited scope of rectification permitted under section 74 of the Law of Succession Act and rule 43(1) of the Probate and Administration Rules. The law only allows rectification for errors relating to names or descriptions, or the time or place of the deceased’s death, not for substantive changes in the distribution or substitution of beneficiaries. Furthermore, disputes regarding the sharing of a deceased beneficiary’s entitlement among their own beneficiaries require separate...
Court Disposition
application dismissed with costs
Orders
- The application for rectification of the certificate of confirmation of grant is dismissed.
- The applicant shall bear the costs of the application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 1228 OF 2006
IN THE MATTER OF THE ESTATE OF SAMUEL KINYANJUI WAIGANJO (DECEASED)
MONICA MURUGI MUNGAI..................................APPLICANT
VERSUS
JAMES KINYANJUI.....................................1ST RESPONDENT
RICHARD KUNGU......................................2ND RESPONDENT
ESTHER WAITHIRA NDENDERU...........3RD RESPONDENT
RULING
1. Under section 74 of the Law of Succession Act (Cap 160) and rule 43(1) of the Probate and Administration Rules, a grant or certificate of confirmation may be rectified by the court where it is shown by the applicant that there is an error relating to names or descriptions, or setting out the time or place of the deceased’s death (In the Matter of Geoffrey Kinuthia Nyamwinga [2013]eKLR).
2. In the instant case, the deceased Samuel Kinyanjui Waiganjo died intestate on 13th May 1999. During his lifetime he had 10 children. One of them (the applicant) Monica Murugi Mungai petitioned for the grant of letters of administration. The grant was issued on 30th August 2016, and confirmed on 29th January 2019. Except for LR Mwichiringiri Block 4/709 which went to Samson Wachira absolutely, the rest of the estate was ordered to be shared equally among the 10 children of the deceased.
3. In the application dated 22nd October 2021 by the applicant under sections 74and81of theActandrules 43, 49and73of theRules, she asked that the certificate of confirmation be rectified by removing the names of her late brothers Arthur Gichuru Kinyanjui, John Brown Njenga Kinyanjui and Charles Nganga Kinyanjui who have since died. In respect of Gichuru Kinyanjui and John Brown Njenga Kinyanjui, she seeks her name to replace theirs. In respect of Charles Nganga Kinyanjui she wants the deceased’s widow Hannah Wanjiru Nganga to replace him as she has a grant in respect of his estate. Her case was that she wants to distribute the estate of the deceased to the respective beneficiaries but she is stuck. This is because, in respect of Arthur Gichuru Kinyanjui, the beneficiaries have not taken out letters of administration. As for John Brown Njenga Kinyanjui, the beneficiaries have not agreed on how to share his estate.
4. The application was opposed by James Kinyanjui (1st respondent), Richard Kungu (2nd respondent) and Esther Waithira Ndendetu (3rd respondent). Esther Waithira Ndenderu deponed that she is one of the widows of John Brown Njenga Kinyanjui. The late John left two widows and adult children. She asked that since John left two families, his entitlement should be shared equally between the families. As she deponed so, it was clear that she was not talking for the other house or family. Certainly, how the estate of John will be shared among his beneficiaries presents a dispute that cannot be dealt with now.
5. In short, the application cannot be allowed as what is sought is beyond the scope of section 74 of the Act and rule 43(1) of the Rules. The application is dismissed with costs.
DATED and SIGNED this …………………. day of MARCH 2022
A.O. MUCHELULE
JUDGE
DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 28TH DAY OF MARCH 2022
A.O. MUCHELULE
JUDGE