[2009] KEHC 43 (KLR)
The court found that the application for rectification of the grant was a nullity because the advocate who filed it was not properly appointed by the applicant as required by the Probate and Administration Rules. Without a valid notice of appointment (Form P&A 63), the advocate had no standing to act for the...
Source-derived case information.
- Citation
- [2009] KEHC 43 (KLR)
- Parties
- Applicant: Jonathan Kipkoech Langat; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 119 of 2003
- Procedural Posture
- Probate and Administration / Ruling on Application for Rectification of Grant
- Outcome
- application struck out
- Legal Topics
- Probate Procedure, Rectification of Grant, Appointment of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonathan Kipkoech Langat
Applicant
__MISSING__
Respondent
Procedural Posture
Probate and Administration / Ruling on Application for Rectification of Grant
Legal Issues
- 1 Whether the application for rectification of grant was properly before the court given the advocate's lack of appointment.
- 2 Whether the grant could be rectified to include a new property instead of shares as previously indicated.
Ratio Decidendi
The court found that the application for rectification of the grant was a nullity because the advocate who filed it was not properly appointed by the applicant as required by the Probate and Administration Rules. Without a valid notice of appointment (Form P&A 63), the advocate had no standing to act for the applicant. Additionally, the application failed to provide necessary details regarding the property to be rectified and lacked consent from other beneficiaries. As a result, the application was irregularly filed and was struck out.
Court Disposition
application struck out
Orders
- The application dated 5th October 2009 is struck out as the advocate is not properly on record.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KERICHO
Probate & Administration 119 of 2003
IN THE MATTER OF ESTATE OF THE LATE
KIPLANGAT A. KOLIL – DECEASED
AND
JONATHAN KIPKOECH LANGAT-PETITIONER
RULING
Rectification of grant
1. Procedure
1. All along this probate matter the applicant has been acting in person.M/S C. K. Korir & Co. Advocate filed an application dated5th October 2009seeking for orders from this court to rectify the said grant and include a new property as the grant confirmed reflected the property as shares Songonyet FCS instead of the land title reference.
2. In order to act for the applicant the advocate must be appointed by the applicant in form P&A 63. As this was never done, the application is a nullity and as such being irregularly filed by a person not representing the applicant, it is accordingly struck out.
3. If perchance, a notice of appointment was filed, (which is denied) as of14th October 2009, this court notice that the deceased passed away in 1970. His age is unknown.He had two houses.House No.1 had five daughters and house No.2 had 7 children of which 6 daughters of whom the applicant was the only male in that house.He successfully applied for letters of grant intestate that was issued on10th December 2003P&A 41 at Kericho (M. Apondi j).The grant was confirmed on25th October 2004(Kimaru J) giving the applicant the absolute right to the deceased property and to his shares.There are two unmarried daughters; Mary Cherono and Caroline Chepngetich.
4. All the shares were said to have been identified but not disclosed in the application.No consent to making of the grant was made.
5. The property to be rectified is completely different from the shares.The applicant is to file a further affidavit of how this property is related to the land parcel.I note the deceased died in 1970. The description of the shares and consent from other benefits are required.Rule 41(2) of P&A Rules may have applied.
6. The application5th October 2009stands struck out as the advocate is not on record.
Dated this 30th day of November 2009 at Kericho
M. A. ANG’AWA
JUDGE
Advocates
-C. K. Korir Advocate instructed by M/S C. K. Korir & Co. Advocates for the Petitioner/Applicant; present.