[2019] KEHC 5328 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERUGOYA

SUCCESSION CAUSE NO. 898 OF 2013

IN THE MATTER OF THE ESTATE OF THE LATE MOSES KARONJO GATHINGO......DCD

LEAH WANJIKU GICHOBI...........................................APPLICANT

V E R S U S

BILHA WANJIKU KARONJO............................ 1ST RESPONDENT

IRENE WAMBUI KANGETHE...........................2ND RESPONDENT

RULING

1. This matter relates to the estate of Moses Karonjo Gathingo, deceased who died intestate on 2/10/2005. A petition for Letters of Administration intestate was filed by Bilha Wanjiku Karonjo. A grant of Letters of Administration was made to the Petitioner on 12/10/2009 and was confirmed on 14/5/10.

2. The applicant Leah Wanjiku Gichobi filed a Summons General under Section 74 of the Law of Succession Act and Rule 49 of the Probate and Administration Rules seeking orders that the grant herein be rectified to include the names of the deceased as Moses Karonjo Gathingo alias Karonjo Gathingo. That the grant be rectified to include Land Parcel No. Mutira/Kangai/714 and it be distributed to the applicant. That the court to order the 1st Respondent to sign all the necessary documents to ensure transfer of title number Mutira/Kangai/714 to the applicant and in default the Deputy registrar of the Court to do the same.

3. The application is based on the ground that the Land Parcel No. Mutira/Kangai/714 was left out during the distribution of the deceased’s estate. That the deceased is also known as Karonjo GathiNgo. That the deceased had sold the whole land parcel No. Mutira/Kangai/714 to the applicant.

4. The application is supported by the affidavit of Leah Wanjiru Gichobi wherein she depones that the deceased had sold the said land parcel to her way back in 1978 and they entered agreement, annexture LWG 2b. Application for Land Control Board consent was done and a letter of consent issued, annexture LWG 2d. She took possession of the land and settled thereon as from 1978 and has fully developed the land. She filed this application so that the said land can be included in the grant and be distributed to her.

5. In opposing the application the respondent Bilha Wanjiku Karonjo filed a Replying Affidavit and depones that the said land parcel No. Mutira/Kangai/714 was inadvertently left out during distribution of the estate. She denies that the said parcel of land was sold to the applicant by the deceased and she contends that the applicant was just a casual labourer. She further contends that if the land was sold to her and an agreement was entered, all she is entitled to is a refund of the purchase price. She avers that upon rectification of the grant the land should be transferred to her. It is denied that the applicant lives on the suit land and it is submitted that she is a busy body whose application should be dismissed.

6. In a further affidavit the applicant deposes that she has been in possession where she has built a semi permanent house, annexture LWG 3 and has buried her late husband on the land, annexture LWG 4.

7. The parties proceeded by way of viva voce evidence and at the close of the case parties filed submissions.

Applicants submissions:

He relies on Rule 49 of Probate and Administration Rules which provides:-

“A person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported if necessary by affidavit.”

He relies on Rule 45 & 73 of the Probate and Administration Rules. Rule 73 provides:-

“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

8. He submits that the court has inherent jurisdiction to make orders as may be necessary to meet the ends of justice. He also relies on Article 159 of the Constitution and urges the court to do substantial justice to avoid further delay and the filing of multiplicity of suits. He relies on Peter Wekesa –v- Peter Wangugi Cr. A. No. 62/03where the court stated that:-

“Where the dispute relates to land, special caution must be exercised to avoid determination of the dispute on pure technicalities.”

9. He further urges the court to be persuaded by the decision in Re Estate of John Kirehu Guchu (deceased) (2013) eKLR, Justice Musyoka where he stated:-

“As the grant cannot be rectified under the provisions of the law which the application is premised, the same is liable to dismissal. However, as there are good grounds under Order 44 for a review of the grant, I will exercise the inherent power saved under Rule 73 of the Probate and Administration Rules and Order a review of the certificate of confirmed grant dated 14th December, 2011 to include the omitted assets and to have the devolved upon Florence Naropi Kirehu (emphasize mine).”

10. He urges the court to exercise the inherent powers and allow the application.

11. Respondent’s Submissions:-

It is submitted that there is no dispute that the said land parcel was left out during distribution. The issue is who should inherit the land parcel. It is submitted that the law is settled that new assets cannot be introduced and distributed by rectifying a certificate of confirmation of grant. That the applicant should have sought a review of the orders of 14/5/10 so as to include the discovered assets and distribute them. He relies on Re-estate of Kanyingi Gatwe (deceased)(2018) eKLR where a similar application was refused since there was an issue on the mode of distribution of the estate.

12. I have considered the application, the evidence tendered and the submissions. The issue which arises is-

13. Rectification of grant:-

The rectification of grant under Section 74 of the Law ofsuccess Act is meant to correct errors. These includes errors in names and descriptions, setting out dates, time and place of deceased death or a purpose in limited grant. These are specific errors and not general. They are corrections in a certificate of confirmation of grant which when corrected may not alter the substance of the certificate. It is provided under Section 74 of the Law of Succession Act.

“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.”

This is echoed under Rule 43(1) of the Probate and Administration Rules which goes further to give directions on how the party shall move the court for the orders. The rule provides:-

“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.”

14. The power of the court to rectify the grant is therefore limited to the situation enumerated under Section 74 of the Act and does not give the court a general power to amend.

15. The application by the applicant is two pronged. One is to rectify the name of the deceased and the 2nd one is to include the property which was omitted.

16. With regard to the rectification of the name, it is not in dispute that the deceased owns the land in question. The name used in these proceedings is Moses Karonjo Gathingo. The applicant annexed documents in particular Land Certificate for Mutira/Kangai/714 and certificate of official search land parcel which shows that the deceased was registered as Karonjo Gathingo. There is no dispute that the deceased was also known by this name. It is therefore necessary to include the name Karonjo Gathingo to show that the deceased was also known by the said name. The prayer to correct the name of deceased to show that he was also known by the name Karanjo Gathingo succeeds.

17. With regard to rectification of the grant to include property which was omitted, such an exercise is not envisaged under Section 74 of the Law of Succession Act. This is because such rectification would affect the substance of the grant and would present difficulties when it comes to distribution of the discovered property.

18. I stated as much in the case of Re-estate of Kanyingi Gatwe (deceased)(2018) eKLR. In a matter where a similar issue arose that is In the matter of the Estate of Geofrey Kinuthia Nyamwonga (deceased) it was stated:-

“Where a proposed amendment of a grant cannot be dealt with under the provisions ofsection 74of 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 Rulesmay 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 Ruleson 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.”

19. So for a party to seek to introduce properties which were left out during the confirmation of grant and distribution is stretching Section 74 of the Act too far. These are in the nature of amending the grant. For the confirmed grant, a party may seek revocation of grant if he has sufficient grounds under Section 76 of the Act or seek review. Where a party has discovered a new matter of evidence the best option is to seek review. Review is imported to the Law of Succession Act under Rule 63 of the Probate & Administration Rules. The rule provides:-

“(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX, together with the High Court (Practice and Procedure) Rules, shall apply so far as relevant to proceedings under these Rules.

(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising there under in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.”

20. There is discovery of new matter of evidence in that the parcel of land is not included in the certificate of Confirmation of Grant. This calls for review of the order confirming the grant so that the property is included and distributed. The application for rectification of grant is without merits.

21. The counsel for the applicant has urged the court to go ahead and order for a review of the grant contending that the court has inherent powers to make orders which are necessary for the ends of justice and to prevent abuse of the court process. Rule 73 of Probate and Administration Rules was cited. This court has heard the dispute. In the respondent’s submission it is stated Land Parcel No. Mutira/Kangai/714 was by error left out during distribution and there is a dispute as to who should inherit. This amounts to an admission that the certificate of confirmation has an error and cannot stand as confirmed. My view is that having heard the dispute, this is the time for the court to make orders and not to send parties back. This is the new leaning in the Constitution and the Civil Procedure Act that courts should seek to do substantial justice and not be fettered by procedural technicalities. This also ensure expeditious disposal of cases. This is in Article 159 of the Constitution and Section 1A & 1B of the Civil Procedure Act. A court must also determine a dispute to its finality. It would not be giving effect to Rule 74 of P & A to dismiss the application for being filed under wrong provisions after the court has heard the dispute and the adverse party is conceding that an application for review should have been filed. Rather than dismiss the application in the interest of justice I should order a review at this stage having found that there is need to a review the grant in line with Order 45 Civil Procedure Rulesand the respondent contending that an application for review is what should have been filed. In line with Rule 73 I will exercise the inherent powers and order that the certificate of confirmation of grant as confirmed by the order of this court on 14/5/2010 be reviewed to include the omitted land parcel.

22. On the issue of distribution of the said parcel, the applicant has proved through documents that she bought the said parcel of land from the deceased through a written agreement. An application for the consent of the Land Control Board was made and the Land Control Board gave consent. The deceased handed over the title deed to the applicant, Annextures 2a,b,c & d. The applicant has proved that she took possession of the land in 1978 and constructed a house and later in 1982 she buried the “Pillar of her strength”i.e her late husband on the Land Parcel and nobody opposed the burial. She has never been sued for trespass or forcible detainer. It shows that she was on the land with full knowledge and consent of the deceased.

23. The land was not transferred to the applicant and remains an estate of the deceased. Section -3- of the Law of Succession Act defines estate as the “free property of a deceased person.”

24. The contention by the petitioners that the applicant was a casual labourer is not credible. The petitioner and her witness were not truthful and they did not impress me as credible witnesses. The petitioner stated that the deceased never used to pay the applicant and she herself was not paying her. There is no prove that she was a casual labourer. The petitioners evidence is a sham. The applicant proved that she bought the land and took possession. The agreement was valid and was sanctioned by the Land Control Board.

25. Such an agreement is enforceable by way of specific performance.

26. The question which arises is whether the land should be distributed to her. Hers is a purchaser’s claim and her claim is not that of a beneficial interest.

27. The Law of Succession Act in its preamble states:-

“An Act of Parliament to amend, define and consolidate the law relating to intestate and testamentary succession and the administration of the Estates of deceased persons and for purposes connect therewith and incidental thereto”.

28. The key words are “intestate” testamentary and administration of the Estates of deceased persons. This constitutes the jurisdiction of the Probate and Administration Court. My view is that claims in the nature of land disputes cannot be resolved in Succession cause. The claim by the applicant is for specific performance against the deceased. She is not a beneficiary. She as a purchaser for money worth. The applicant does not claim beneficial interest. This court has no jurisdiction to entertain the claim by the applicant. Her claim is in the nature of a land dispute which under Article 162(2)(b) of the Constitution fall under the jurisdiction of Environment and Land Court. The Article provides:-

“Parliament shall establish courts with the status of the High court to hear and determine disputes relating to the environment and use and occupation of and title to land.”

29. The Court with jurisdiction is the Environment and Land Court. Parliament enacted Land Registration Act which under Section -2- which defines court as Environment and Land Court established by the Environment and Land Court Act which in its preamble states that it is an Act of Parliament to give effect to Article 162(2)(b) of the Constitution. The courts established under the Act have jurisdiction to hear and determine disputes relating to the environment and use, occupation of and title to land.

30. . The applicant is a stranger to the estate and must not be included in the distribution of the estate. Her claim should therefore be filed in the court with jurisdiction.

31. In conclusion:-

Though the application was brought under wrong provision, the court having heard oral evidence it would not be in the interest of justice to dismiss it. I will exercise the inherent powers to meet the ends of justice and prevent abuse of court process, prevent delay and determine the dispute once and for all. I order as follows:-

1. The grant will be rectified to include the names of deceased as Moses Karonjo Gathingo alias Karonyo Gathingo.

2. The grant confirmed on 14/5/10 shall be reviewed to include land parcel No. Mutira/Kangai/714 a property of deceased which was omitted.

3. The prayer to order land parcel No. Mutira/Kangai/714 to devolve to the applicant is declined. The claim be filed in the court with jurisdiction.

4. Each party to bear its own costs.

Dated at Kerugoya this 9th day of July 2019.

L. W. GITARI

JUDGE