[2022] KEHC 14168 (KLR)

In re Estate of Simon Ndirangu Ngugi ( Deceased) (Succession Cause 127 of 2007) [2022] KEHC 14168 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14168 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 127 of 2007

LM Njuguna, J

October 19, 2022

IN THE MATTER OF THE ESTATE OF SIMON NDIRANGU NGUGI (DECEASED) JANE NJERI NDIRANGU.......................................PETITIONER VERSUS RUTH WACHEKE KABUGI...................APPLICANT/BENEFICIARY AGNES WARUINI KIMANI........................1ST INTERESTED PARTY JOSEPH KARIUKI MUGAMBI.................2ND INTERESTED PARTY ZACHARIAH WAMBUGU WANJOHI.........3RD INTERESTED PARTY LUCY WANGARI WANJIRU......................4TH INTERESTED PARTY

Ruling

1. The applicant herein moved this court vide summons dated 19. 01. 2022 and brought under Section 74 of Law of Succession Act and Rules 43(1), and 73 of Probate and Administration Rules. The applicant has sought the following orders;1. That the grant of Letters of Administration issued on 8th July 2010 to Jane Njeri Ndirangu in the matter of the estate of Simon Ndirangu Ngugi be rectified and/or amended in the following aspects:i)That the names of the deceased Simon Ndirangu Nugi be rectified to indicate Simon Ndirangu Ngugi alias Ndirangu Ngugi.2. Costs be in the cause.

2. The application is premised on the grounds that, an official search from Embu Lands Offices reveals that the only property of the estate LR No. Gaturi/weru/1270 measuring 1. 62 Ha is registered in the name of the deceased as Ndirangu Ngugi. That it is imperative that the grant herein be rectified in order to enable implementation of the same and distribution of the estate herein to the respective beneficiaries.

3. The application was opposed by the 1st interested party vide grounds of opposition filed on 4. 07. 2022 on the following grounds; the application herein is bad in law as the sole administratix of the estate is already deceased and therefore the grant of letters of administration intestate dated 08. 07. 2010 has since become inoperative, null and void. It was her case that enforcement and/or implementation of the said grant of letters is no longer operational and the beneficiary can only seek to apply for fresh letters of administration in respect to the estate herein. She thus prayed that the application be dismissed with costs to her.

4. The other interested parties/respondents did not file any response to the application.

5. The applicant filed a further affidavit on the 12. 08. 2022 in which she avers that she seeks execution of the court’s amended order issued on the 9. 04. 2022, a copy of which she has annexed. That under the said amended order, the powers of the administrator in the cause herein was donated to the Deputy Registrar who was authorized to sign all the necessary documents to enable transfer of the portion of 0. 2 Ha out of land parcel No.Gaturi/Weru/1270 to her. Further that, pursuant to that order, all the relevant forms have already been executed by the Deputy registrar in her favour. That the said order remains in force as the same has not been reviewed; set aside or appealed against. That since this succession cause has been subject to a long court battle, it is imperative that the application be allowed to enable transfer of the subject portion of the land to her.

6. The application was canvassed by way of written submissions and only the applicant complied with the directives in filing of submissions. She submitted that the application herein is merited as the same seeks rectification of grant to enable transmission of the subject parcel of land to the beneficiaries who include the applicant who is entitled to 0. 20 Ha out of the said land. That the averment by the 1st interested party that the grant is invalid and thus cannot be enforced is misplaced as the said grant has never been revoked and nor is there any application pending for revocation of the same. Reliance was placed on the case of Simon Mbogo Gakenge v Gakono Gakenge [2014] eKLR where the court allowed an application to have the Deputy Registrar sign all relevant documents on behalf of the deceased to enable execution of the grant where no application for revocation of grant had been made. It was her case that, this court is vested with the authority to order the Deputy Registrar to execute transmission documents on behalf of the administrator, which orders this court duly issued by the amended order issued on 09. 04. 2021 and the same thus is still in operation and it is imperative that the grant herein be rectified to allow completion of the transmission process.

7. The applicant proceeded to state that her effort to inherit her rightful share of the estate has been the subject of a long court battle since 2007 and it is in the interests of justice to allow the application herein for the applicant and other beneficiaries to benefit from the estate of the deceased. The applicant in support of the application relied on section 74 of the LSA in that the same seeks for rectification of the names of the deceased and therefore the same falls under the ambit of Section 74 of LSA. In the end, this court was urged to allow the application herein.

8. I have perused the application before the court, the response thereto and the applicant’s written submissions and I form the view that this court has been called upon to determine whether the applicant has made a case for the rectification of the grant.

9. Rectification of grants is provided for in section 74 of the Law of Succession Act, Cap 160, Laws of Kenya and Rule 43(1) of the Probate and Administration Rules. Under section 74, 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.

10. Rule 43(1) on the other hand provides that :-Where the holder of the grant seeks pursuant to the provisions of section 74 of the Act rectification of an error in the grant as to the names or descriptions of any person or thing or as to the time and place of death of the deceased or, in the 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 made.

11. From the above provisions, it is clear that the power of a court to order rectification of a grant is not general but only limited to instances specified therein. That is where the errors which are sought to be rectified relates to names or descriptions, or setting out of the time or place of the deceased’s death. [See in the matter of the estate of Geoffrey Kinuthia Nyamwinga (deceased)[2013] eKLR and also in re Estate of Kathuita Kavira (Deceased)[2019] eKLR].

12. These matters specifically refer to corrections of error which the court may order without changing the substance of the grant. These include errors in names, description of any person or thing or an error as to the time or place of death of the deceased or the purpose for which a limited grant was issued. An error which is envisaged under the section is a mistake which may occur on the face of the grant like typing errors in names of persons or things.

13. The issue of rectification of grant has been addressed in various decisions in the High Court which I have considered here as persuasive authorities. In the matter of the Estate of Hasalon Mwangi Kahero[2013] eKLR“An error is essentially a mistake. For the purposes of Section 74 and Rule 43, it must relate to a name or description or time and place of the deceased’s death, or the purpose of a limited grant. Is an omission of a name or in the description of a thing an error? It would be an error if say, a word in the full name of a person is omitted or a word or number or figure in a description is omitted. But where the full name of a person or a full description of a thing or property is omitted, it would be stretching the meaning of the word “error” too far to say that that would amount to the error or mistake envisaged in Section 74 and Rule 43. ”

14. Similarly in In the Matter of the Estate of Geoffrey Kinuthia Nyamwinga (Deceased) [2013] eKLR:-“The law on rectification or alteration of grants is Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules….What these provisions mean is that errors may be rectified by the court where they relate to names or descriptions, or setting out the time or place of the deceased’s death. The effect is that the power to order rectification is limited to those situations, and therefore the power given to the court by these provisions is not general….Where a proposed amendment of a grant cannot be dealt with under the provisions of Section 74 of the Law of Succession Act, the applicant ought to approach the court under order 44 of the Civil Procedure Rules. A review under Order 44 of the Civil Procedure Rules may be sought upon discovery of new and important matter or on account of some mistake or error apparent on the face of the record, or for any sufficient reason. The applicant in this case should have moved the court under this provision-Order 44 of the Civil Procedure Rules on account of some mistake or error apparent on the face of the record and on the ground that there exists a sufficient reason for review of the certificate of the confirmation of the grant.”

15. The court has taken the liberty to peruse the record of the proceedings and the search document referred to by the applicant and indeed the same reads “Ndirangu Ngugi” as opposed to Simon Ndirangu Ngugi which appears on the grant. I have noted the 1st interested party’s grounds of opposition to the application dated 19. 01. 2022 and that the court had given orders for the Deputy Registrar to sign all the relevant documents and this order has not been set aside and/or reviewed.

16. In the premises, and taking into consideration the length of time that this succession cause has taken in court, and further that, the mode of distribution is not in issue, I do hereby find that it is only fair that the orders sought be granted and do hereby grant the same.

17. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 19TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE....................for the Petitioner.....................for the Applicant.............for the interested parties.....................for the Respondent