[2025] KEHC 7501 (KLR)
The court declined to allow the application for rectification of the grant at this stage because the consent purportedly entered into with the administrator of the Estate of Dorcas Pedelai Ntimama, which was necessary for the proposed changes, had not been availed to the court. The court found that without this...
Source-derived case information.
- Citation
- [2025] KEHC 7501 (KLR)
- Parties
- Applicant: Eric Kariuki Kimani; Applicant: Sanau Ntimama Koillapa; Respondent: Estate of Viviam Talash Ntimama (Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 287 of 2020
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification and Preliminary Objection
- Outcome
- adjourned for mention and further directions; no final orders on rectification granted
- Judges
- PM Nyaundi
- Legal Topics
- Probate and Administration, Rectification of Grant, Res Judicata, Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eric Kariuki Kimani
Applicant
Sanau Ntimama Koillapa
Applicant
Estate of Viviam Talash Ntimama (Deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Rectification and Preliminary Objection
Legal Issues
- 1 Whether the property Flat No. A22 North Side Road, Wandsworth Common London, SW 18521 should be removed from the estate.
- 2 Whether the grant should be amended to exclude the said property and distribute a 70% share in Title No CIA Mara/Olopito.3 to the estate.
- 3 Whether the application for rectification is res judicata in light of previous proceedings.
Ratio Decidendi
The court declined to allow the application for rectification of the grant at this stage because the consent purportedly entered into with the administrator of the Estate of Dorcas Pedelai Ntimama, which was necessary for the proposed changes, had not been availed to the court. The court found that without this consent, it could not proceed to grant the orders sought. The court also noted the respondents' objections, including the plea of res judicata and alleged procedural defects, but did not make a final determination on these points, instead directing the matter to be mentioned for further directions and for the administrators to file the required consent and any supplementary affidavit.
Court Disposition
adjourned for mention and further directions; no final orders on rectification granted
Orders
- Matter to be mentioned on 4th June 2025 for administrators to avail the required consent and for further directions.
- Leave granted to administrators to file a supplementary affidavit.
Full Case Text
Judgment text and source record
19 paragraphs
In re Estate of Viviam Talash Ntimama (Deceased) (Succession Cause 287 of 2020) [2025] KEHC 7501 (KLR) (Family) (29 May 2025) (Ruling)
Neutral citation: [2025] KEHC 7501 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 287 of 2020
PM Nyaundi, J
May 29, 2025
IN THE MATTER OF VIVIAM TALASH NTIMAMA (DECEASED)
Ruling
1. The Summons dated 3rd October 2024 is presented under rule 43 of the Probate and Administration Rules and seeks the following orders-i.The properties referred to as Flat No. A22 North Side Road, Wandsworth Common London, SW 18521 be removed from the list of the properties in the said estate.ii.The Grant be amended to exclude the said property referred to as Flat No. A22 North Side Road, Wandsworth Common London, SW 18521iii.The grant be amended to distribute seventy per cent (70%) share in Title No CIA Mara/Olopito.3 to the Estate of Vivian Talash Ntimama.
2. The Application is supported by the joint affidavit sworn by Eric Kariuki Kimani and Sanau Ntimama Koillapa sworn on 3rd October 2024 as joint administrators of the estate of the deceased herein. The changes in the assets of the estate of the deceased are to reflect the decision in HCF P&A/E1777/2021.
3. The Respondents have filed a Notice of Preliminary Objection dated 24th February 2025 which is premised on the following groundsi.That the application is incompetent and a nullity and therefore be dismissed as prayer 1 (c) of the summons for rectification is res judicata having been determined by a court of competent jurisdiction in Narok HC F P& A 12 of 2017 Estate of William Ntimama (Deceased);ii.That the application contravenes mandatory provisions of law as guided by Section 7 of the Civil procedure Act.iii.That the application is an abuse of the Court process, is fatally and incurably defective and cannot stand in law.iv.That the applicant’s claim is misconceived, misdirected and misled and therefore the prayers sought cannot stand in law.
4. The Application was canvassed via written submissions. Those of the Respondent are dated 8th April 2025.
5. It is submitted that the issue of the ownership of Apartment Unit Number C4 in Block C erected on land reference number 2/220 (original number 2/37/1/1) be included in the schedule of the properties of the deceased.
6. I have looked at the draft certificate of confirmation of Grant. It does not include apartment No. C4 which the respondents are objecting to.
7. I am however unable to allow the application for rectification as consent referred to as having been entered into with the administrator of the Estate of Dorcas Pedelai Ntimama has not been availed to court.
8. The matter will be mentioned on 4th June 2025 for the Administrators herein to avail the consent and to take further directions on the Application. Leave is granted to the administrators to file a supplementary affidavit.It is so ordered.
SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2025. P M NYAUNDIHIGH COURT JUDGEIn the presence of:No appearance by partiesFardosa Court Assistant