[2023] KEHC 24375 (KLR)

In re Estate of the Late Benjamin Kiprotich Arap Kauria (Deceased) (Succession Cause 107 of 2009) [2023] KEHC 24375 (KLR) (31 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24375 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 107 of 2009

JK Sergon, J

October 31, 2023

Between

Wilson Kiptoo Marindany

Applicant

and

Tabutany Chepkoskey

Petitioner

Ruling

1. The application for this court’s determination is a chamber summons dated 31st May, 2023 seeking the following orders;(a)Spent(b)That Wilson Kiptoo Marindany be allowed to cause the legal representation of the deceased beneficiary namely Tapnyopii Cheptonui and be made a party in this suit as the beneficiary and proceed with this succession in place of the said Tapnyopii Cheptonui(Deceased).(c)That such other and/or further direction be given by this honourable court to meet the ends of justice(d)That costs of this application be in the cause.

2. The Application is supported by grounds on the face of it and the supporting affidavit sworn by Wilson Kiptoo Marindanythe applicant.

3. The Applicant avers that Tapnyopii Cheptonui (Deceased) a beneficiary of the estate of Benjamin Kiprotich Arap Kauria(the deceased herein) died on 9th December, 2015 and that the cause of action survives and/or continues to survive.

4. The Applicant avers that he is the son to the deceased beneficiary and should therefore be made a party to the suit as the beneficiary and proceed with the succession in place of his deceased mother Tapnyopii Cheptonui(Deceased).

5. The Applicant further avers that the certificate of grant issued on the 27th November, 2012 be rectified and the name of the said beneficiary Tapnyopii Cheptonui (Deceased) be removed.

6. The Applicant avers the instant application is made in his capacity as a legal representative to the estate of Tapnyopii Cheptonui(Deceased).

7. The Applicant avers to faithfully administer the estate of the deceased which by law devolves to and vests in her personal representatives for the use and benefit of the heirs of the said estate and to render a just and true account of the affairs of the estate whenever required by the law to do so.

8. The Applicant further avers that he is fully aware and conversant with all the matters in issue in the case and in possession of all essential documents and /or exhibits relating to the instant succession cause.

9. The application is not opposed.

10. I have considered the application dated 31st May, 2023 I have considered the application by the applicant which is both for substitution of a deceased beneficiary and also for rectification and/or correction of names in the confirmed grant. The position of the law on rectification of grant is found in section 74 of the Law of Succession Act which provides as follows; “Errors in names and descriptions, or in setting out 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.” and Rule 43(1) of the Probate and Administration Rules which provides as follows; “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 or descriptions of any person or thing or as to the time or place of the 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 the matter of the estate of Geoffrey Kinuthia Nyamwinga (deceased) [2013] eKLR the court stated; “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…”

11. Firstly, I find that the applicant herein is neither a personal representative nor a legal representative ofTapnyopii Cheptonui(Deceased).

12. Secondly, I am unable to grant the orders sought as the applicant has combined two totally distinct applications in one application. It has also become apparent that the applicant is not merely seeking a correction of the names of the beneficiaries in the confirmed grant but what he seeks is a substitution of a deceased beneficiary.

13. In the circumstances the substitution of a deceased beneficiary where a confirmed grant exists cannot be made in the absence of a grant of letters of administration intestate appointing the applicant as the administrator of the estate of Tapnyopii Cheptonui(Deceased). It is therefore my considered view that the chamber summons dated 31st May, 2023 without merits and it is not properly before this court. I hereby dismiss the said application. I make no orders as to costs.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 31ST OCTOBER, 2023. ....................................J.K. SERGONJUDGEIn the presence of:C/Assistant - RutohNo Appearance for the Parties