[2024] KEHC 13141 (KLR)

In re Estate of the Late Kipkorir Arap Too alias George Kiporir Arap Too (Deceased) (Succession Cause E023 of 2022) [2024] KEHC 13141 (KLR) (30 October 2024) (Ruling)

Neutral citation: [2024] KEHC 13141 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause E023 of 2022

JK Sergon, J

October 30, 2024

IN THE MATTER OF THE ESTATE OF THE LATE KIPKORIR ARAP TOO alias GEORGE KIPORIR ARAP TOO (DECEASED)

In the matter of

Esther Chelangat Too

1st Petitioner

Esther Jepkorir Too

2nd Petitioner

Ruling

1. The application coming up for determination is a summons for rectification of grant dated 4th April, 2024 seeking the following orders;(i)THAT the grant of letters of administration issued to the said ESTHER CHELANGAT TOO and ESTHER JEPKORIR TOO on 18th August, 2022 in this cause and confirmed on 6th July, 2023 be rectified to reflect the correct title number as Kericho/Kapkatet/263.

2. The application is based on grounds set out on the face of it and facts deponed in the supporting affidavit of Esther Chelangat Too, the 1st petitioner herein with the authority of the 2nd petitioner.

3. The 1st petitioner avers that a grant of letters of administration was made to the petitioners on 18th August, 2022 and was confirmed on 6th July, 2023.

4. The 1st petitioner avers that during the drawing and filing of the summons for confirmation of grant, she inadvertently indicated that the deceased’s property was Kericho/Chemagel/263 and that the correct title number of the deceased’s property is Kericho/Kapkatet/263 and she annexed a copy of the certificate of title.

5. The 1st petitioner avers that inorder to finally distribute the estate and settle all the beneficiaries, it is imperative that this court rectify the said grant and a certificate of confirmation of grant be issued to them.

6. Having considered the application filed by the applicant, the sole issue for determination by this court is whether to allow the application to rectify the certificate of confirmation of grant dated 6th July, 2023.

7. The jurisdiction of this court to order for rectification of grant is donated by Section 74 of the Law of Succession Act, which provides that:- “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.”

8. On the other hand Rule 43(1) of the Probate and Administration Rules provides that: - “Where the holder of a grant seeks pursuant to 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 places 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 Form110 for such rectification through the registry and in the cause in which the grant was made.”

9. It is therefore clear from the wording of these provisions which deal with rectification of grant, that the scope of rectification of grant is limited to correction of errors in the names and description or in setting forth the time and place of the deceased’s death and place of death of the deceased.

10. In the matter of the estate of Geoffrey Kinuthia Nyamwinga (deceased) [2013] eKLR the court stated that; “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. In the instant matter the applicant is seeking to have the description of property of the deceased rectified and she has furnished this court with a copy of the certificate of title. This Court therefore finds that the proposed amendments are within the scope envisaged in section 74 of the Law of Succession Act and the provisions of rule 43 (1) of the Probate and Administration Rules.

12. Consequently, the summons for rectification of grant dated 4th April, 2024 is hereby allowed.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 30TH DAY OF OCTOBER, 2024. .............................J.K. SERGONJUDGEIn the Presence of:-C/Assistant – RutohJ. K. Mitey for Petitioners