[2010] KEHC 2872 (KLR)
The court found that the consent to amend the mode of distribution was not specific as to the amendments intended and merely referred to an affidavit of Mary Njeri Mwai that was not identified or identifiable. Furthermore, the affidavit in support of the application was sworn after the date of the consent, meaning...
Source-derived case information.
- Citation
- [2010] KEHC 2872 (KLR)
- Parties
- Applicant: Mary Njeri Mwai; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 948 of 1997
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Grant
- Outcome
- application dismissed
- Legal Topics
- Rectification of Grant, Consent in Succession, Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Njeri Mwai
Applicant
__MISSING__
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Grant
Legal Issues
- 1 Whether the application for rectification of grant is supported by a valid and specific consent to amend the mode of distribution.
- 2 Whether the affidavit referred to in the consent existed at the time the consent was made.
Ratio Decidendi
The court found that the consent to amend the mode of distribution was not specific as to the amendments intended and merely referred to an affidavit of Mary Njeri Mwai that was not identified or identifiable. Furthermore, the affidavit in support of the application was sworn after the date of the consent, meaning the consent could not validly refer to it. On these two grounds, the application for rectification of grant was dismissed.
Court Disposition
application dismissed
Orders
- The application for rectification of grant is dismissed.
- The applicant may file a fresh application for rectification if she so chooses.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Succession Cause 948 of 1997
IN THE MATTER OF THE ESTATE OF JOSPHAT KARANI MWAI ALIAS MWAI
KARANI ALIAS MWANIKI MUNENE
R U L I N G
I have considered the Summons for rectification of grant dated 14th September, 2009 herein, as well as the documents filed.I will not grant the orders sought.The reason is that the consent to amend the mode of distribution is not specific on what amendments are intended.It merely refers to an affidavit of MARY NJERI MWAI which is not identified or identifiable.
The second reason why I will not grant the orders sought in the application is that assuming the affidavit intended to be referredto is the affidavit in support of the application whichwas filed, then there is a glaring error relating to date.The consent is dated 11th July 2009, while the affidavit was sworn on 14th September, 2009. In my view, the affidavit referred to should have existed before the consent was made.
The affidavit should have existed on 11th July, 2009. The consent cannot therefore refer to the affidavit which was sworn later on 14th September, 2009.
On the above two grounds, the application for rectification of grant has to be dismissed.I dismiss the same.The applicant can file a fresh application for rectification, if she chooses to do so.
Dated and delivered at Nairobi this 16th day of March, 2010.
George Dulu
Judge.