[2017] KEHC 9167 (KLR)
The court found that the application sought to rectify an error not envisaged under Section 71(1) and Rule 43 of the Probate and Administration Rules. The redistribution of the estate is not an error that can be corrected through rectification but rather requires a review application based on new material facts or a...
Source-derived case information.
- Citation
- [2017] KEHC 9167 (KLR)
- Parties
- Applicant: Kenneth Wagema Kimani; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 649 of 2016
- Procedural Posture
- Succession Cause / Ruling on Application for Rectification of Certificate of Confirmation of Grant
- Outcome
- application dismissed
- Legal Topics
- Succession of Estates, Rectification of Grant, Probate and Administration, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Wagema Kimani
Applicant
__MISSING__
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Rectification of Certificate of Confirmation of Grant
Legal Issues
- 1 Whether the application for rectification of the certificate of confirmation of grant is properly brought under Section 71(1) and Rule 43 of the Probate and Administration Rules.
- 2 Whether redistribution of the estate constitutes an error envisaged under the cited provisions.
- 3 Whether the applicant provided sufficient explanation for omitting certain properties from the fresh distribution.
Ratio Decidendi
The court found that the application sought to rectify an error not envisaged under Section 71(1) and Rule 43 of the Probate and Administration Rules. The redistribution of the estate is not an error that can be corrected through rectification but rather requires a review application based on new material facts or a mistake apparent on the face of the record. The applicant failed to explain why several properties listed as part of the estate were omitted from the proposed redistribution. Consequently, the application was dismissed as it was improperly brought under the cited provisions and did not meet the legal threshold for rectification.
Court Disposition
application dismissed
Orders
- The application dated 25/4/2017 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
SUCCESSION CAUSE NO. 649 OF 2016
IN THE MATTER OF THE ESTATE OF WALTER NDUNGU KIMANI (DECEASED)
RULING
1. The application herein dated 25/4/2017 is brought under Section 71 (1), 3(a) and (b) 4(a) (b) and (c) of the Law of Succession seeking rectification of certificate of confirmation of grant issued on 4/4/2017. Application is based on grounds on the face of it and affidavit in support deponed by the applicant herein Kenneth Wagema Kimani, (1st Administrator) who sought court’s leave to redistribute the estate afresh. According to the applicant, the original distribution was not in conformity with what they had agreed and that there was an error hence the need to rectify the certificate of confirmation of grant.
2. I have considered the application herein and affidavit in support. A look at the list of property distributed in the original certificate of confirmation of grant issued on 4/4/2017 is totally different from those listed in the purported fresh distribution. Several properties appearing in Form P & A 5 are left out and even some listed in the confirmed grant of 4/4/2017 are not included. Among the properties left are LR No. Lari/Kirenga/602, Plot No. 35 Kirenga Market, Limuru Township/154/70, LR No. 54, 55, LR 154/70, LR 154/60. No explanation was given why all these properties were not distributed yet they were listed as part of the estate.
3. Lastly, the application is seeking to rectify an error which is not envisaged under Section 71 (1) and rule 43 of the Probate and Administration rules. Redistribution of the estate does not amount to an error under the said provision. The applicant should have sought for review of the court orders under rule 43 and 63 of Probate and Administration rules based on discovery of new material facts or an error on the face of the record or mistake. For the above reasons stated, application is hereby dismissed with no order to costs.
DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF JULY, 2017.
J.N. ONYIEGO (JUDGE)
In the presence of:
..................................................................................Counsel for the applicant