[2024] KEHC 706 (KLR)
The court found that the rectification sought did not alter the substantive distribution of the deceased's estate as previously confirmed, but merely updated the certificate to reflect the current land parcel numbers following subdivision and to ensure correct identification of beneficiaries. Since the application...
Source-derived case information.
- Citation
- [2024] KEHC 706 (KLR)
- Parties
- Applicant: Josephine Makokha; Applicant: Maryam Musebe; Respondent: Francis Opiyo; Respondent: Patrick Naterie Oyiera
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 232 of 1994
- Procedural Posture
- Succession Cause / Ruling on Application for Rectification of Certificate of Confirmation of Grant
- Outcome
- Application for rectification of certificate of confirmation of grant allowed.
- Judges
- PJO Otieno
- Legal Topics
- Rectification of Grant, Distribution of Estate, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephine Makokha
Applicant
Maryam Musebe
Applicant
Francis Opiyo
Respondent
Patrick Naterie Oyiera
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 should be rectified to reflect subdivision of land parcels and correct beneficiary names.
- 2 Whether the deputy registrar should be directed to execute transfer instruments due to non-cooperation by respondents.
Ratio Decidendi
The court found that the rectification sought did not alter the substantive distribution of the deceased's estate as previously confirmed, but merely updated the certificate to reflect the current land parcel numbers following subdivision and to ensure correct identification of beneficiaries. Since the application was unopposed and the changes were necessary for effective administration of the estate, the court granted the orders sought, including empowering the deputy registrar to execute the necessary transfer instruments in light of the respondents' non-cooperation.
Court Disposition
Application for rectification of certificate of confirmation of grant allowed.
Orders
- Idah Odhiambo Ndaliro, Makureti Were Oyiero and Mariam Musebe Oyiera to be allocated 2 acres each from North/Wanga/Indangalasha/1241.
- Josephine Makokha to be allocated 2 acres from North/Wanga/Indangalasha/1263.
Full Case Text
Judgment text and source record
26 paragraphs
In re Estate of Thomas Makokha Wakhuleche (Dceased) (Succession Cause 232 of 1994) [2024] KEHC 706 (KLR) (26 January 2024) (Ruling)
Neutral citation: [2024] KEHC 706 (KLR)
Republic of Kenya
In the High Court at Kakamega
Succession Cause 232 of 1994
PJO Otieno, J
January 26, 2024
IN THE MATTER OF THE ESTATE OF THOMAS MAKOKHA WAKHULECHE (DECEASED)
Between
Josephine Makokha
1st Administratrix
Maryam Musebe
2nd Administratrix
and
Francis Opiyo
1st Respondent
Patrick Naterie Oyiera
2nd Respondent
Ruling
1. Before this court is the applicant’s untitled application dated July 5, 2023 brought pursuant to sections 98,1A,3 and 3A of the Civil Procedure Act and order 51 of the Civil Procedure Rules seeking for orders that the rectified certificate of confirmation of grant issued to the applicants on 5/12/2022 be further rectified so that the four beneficiaries namely Josephine Makokha Watitwa, Mariam Musebe Oyiera, Idah Odhiambo Ndaliro and Makureti Were Oyiera do take their respective portions from plot numbers North/Wanga/Indangalasha/1241 and 1263.
2. The application is supported by the affidavit of Josephine Makokha Watitwa sworn on July 5, 2023 in which she avers that in a ruling delivered on 23/2/2012, her and her sisters were to get two acres each from plot numbers North/Wanga/Indangalasha/1241 and 1243 and that the confirmed grant issued on 23/2/2012 and rectified on 5/2/2022 captured this position. She claims that when they sought the services of a surveyor to implement the confirmed grant, they learnt that plot number North/Wanga/Indangalasha/1243 was closed on 16/12/2008 following a subdivision and new numbers that is 1263 and 64 were created.
3. It is her assertion that since the Hon. Judge observed that he did not wish to disturb the particulars of the portions allocated to the four of them and that they should be granted their respective shares from portions in the respondent’s name, that land parcel North/Wanga/Indangalasha/1241 be allocated to Idah Odhiambo Ndaliro, Makureti Were Oyiero and Mariam Musebe Oyiera with each getting two acres while she gets 2 acres from plot number North/Wanga/Indangalasha 1263. She also avers that their names as captured in the grant is not the same as those written in their National Identity Cards. Another prayer she seeks is that that the deputy registrar be directed to execute the instruments of transfer since the respondents have not been co-operative. The application has not been opposed.
4. In the confirmed grant rectified by this court on the 5th day of December, 2022, the court directed that Josephine Makokha, Maryam Makokha, Ida Odhiambo and Marcela Were were to get their respective 2 acres portions from the properties of the deceased known as North/Wanga/Indangalasia/1241 and 1243.
5. The applicants have however learnt that property known as North/Wanga/Indangalasia/1243 has since been sub divided into 1263 and 1264. This position is not contested and the subject application simply says that the property allocated to them in the certificate of confirmation of grant does not reflect what is in the registry following a subdivision. The application seeks to rectify that anomaly. Since the subject application does not disturb the distribution of the deceased’s estate as directed and confirmed by this court, I hereby issue the following orders;a.Idah Odhiambo Ndaliro, Makureti Were Oyiero and Mariam Musebe Oyiera to be allocated 2 acres each from parcel of land known as North/Wanga/Indangalasha/1241. b.Josephine Makokha to be allocated 2 acres from parcel of land known as North/Wanga/Indangalasha 1263c.Josephine Makokha Watitwa, Mariam Musebe Oyiera, Idah Odhiambo Ndaliro and Makureti Were Oyiera to provide copies of their National Identity Cards in order to ensure that their names are correctly captured in the certificate for confirmation of grant.d.The deputy registrar is hereby directed to execute the instruments of transfer to reflect the distribution in the certificate for confirmation of grant.e.I make no order as to costs.
6. Let the administrator have the estate transmitted to those entitled within 90 days from today. Mention on
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 26TH DAY OF JANUARY, 2024PATRICK J O OTIENOJUDGEIn the presence of:Ms. Nafuye for AdministratrixCourt Assistant: Polycap