[2013] KEHC 3742 (KLR)
The court held that rectification under Section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules is limited to correcting errors in the description of persons or property. The death of a co-administrator renders the grant inoperative, necessitating its revocation and the...
Source-derived case information.
- Citation
- [2013] KEHC 3742 (KLR)
- Parties
- Applicant: Eugene Nganga Ngugi; Co Administrator: Lucy Wanjiru Ngugi (deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1342 of 1990
- Procedural Posture
- Succession Cause / Ruling on Rectification and Review Application
- Outcome
- Application allowed in part; grant revoked and reissued, confirmation order reviewed, property description corrected, and fresh certificate to issue.
- Judges
- DN Musyoka
- Legal Topics
- Grant Revocation, Administrator Appointment, Estate Redistribution, Rectification of Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eugene Nganga Ngugi
Applicant
Lucy Wanjiru Ngugi (deceased)
Co Administrator
Procedural Posture
Succession Cause / Ruling on Rectification and Review Application
Legal Issues
- 1 Whether the rectification of grant can address the death of a co-administrator and beneficiaries.
- 2 Whether the estate can be redistributed among surviving beneficiaries under Section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules.
- 3 Whether the description of property in the grant can be corrected under the applicable law.
Ratio Decidendi
The court held that rectification under Section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules is limited to correcting errors in the description of persons or property. The death of a co-administrator renders the grant inoperative, necessitating its revocation and the appointment of a new administrator under Section 76. The redistribution of the estate due to the death of beneficiaries is a matter for review, not rectification, and can be addressed under Order 44 of the Civil Procedure Rules. The court exercised its inherent powers to revoke the previous grant, appoint the surviving co-administrator as sole administrator, review the confirmation...
Court Disposition
Application allowed in part; grant revoked and reissued, confirmation order reviewed, property description corrected, and fresh certificate to issue.
Orders
- The letters of administration intestate made on 27th March 1991 to Lucy Wanjiru Ngugi and Eugene Nganga Ngugi are revoked by the court on its own motion under Section 76 of the Law of Succession Act.
- Eugene Nganga Ngugi is appointed sole administrator of the estate of Simon Ngugi Nganga (deceased) and a grant of letters of administration de bonis non shall issue to him.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Succession Cause 1342 of 1990 [if gte mso 9]><xml>
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IN THE ESTATE OF SIMON NGUGI NGANGA– (DECEASED)
RULING
The rectification application is dated 3rd July 2012. It is premised on the facts:-
(a)That a co-administrator has died and the surviving co- administrator ought to be confirmed as the sole administrator.
(b) That two beneficiaries have died and that their hares ought to be redistributed among the surviving beneficiaries.
(c)That the estate be redistributed so that the four remaining beneficiaries share the estate equally.
(d) That the description of a property be corrected.
Only one of the matters above can be dealt with under Section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules, and that is issue number (2). The provisions above deal with such matters correction connection of errors with respect to descriptions of persons and things. The property in question -LR 2698/2705/VI/MN (Port Reitz) has been wrongly described as LR 2698/2711 Port Reitz. The error is correctable under Section 74 and Rule 43(1).
The other matters do not touch on errors, but on changed circumstances. The death of an administrator is not an error, neither is dead of a beneficiary. Deaths of such persons often necessitate that changes be made to the mode of distribution approved by the court. Such changes cannot be effected under Section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules as they do no relate to errors. Some of them can be dealt with under Rule 63 of the Probate and Administration Rules and Order 44 of the Civil Procedure Rules. I am referring to issues (b) and (c). The death of the beneficiaries is a new matter, the stuff that Order 44 of the Civil Procedure Rules deals with. The resulting consequence of the death is redistribution of the assets, and the confirmation order of 30th July 1992 can be reviewed to introduce such changes.
The matter of the death of a co-administrator cannot be dealt with as a rectification or review of the certificate of confimation ofgrant. It is more fundamental. It touches on appointment of administrators. The grant of 27th March 1991 was made to two persons. It is expected that the two are to act jointly at all times with respect to the administration of the estate. With the death of one of them, the grant becames useless as the surviving sole administrator cannot act on the basis of a grant which still bears the name of a dead administrator. Rectification of grant cannot deal with this as the situation has nothing to do with errors as envisaged in Section 74and Rule 43(1). Since the grant has become useless and inoperative, it ought to be revoked and fresh appointments of administrators be made. The surviving administrators cannot even use the grant, as it is useless, to seek the orders that the applicant now seeks in this application.
Ideally, I should only make the orders relating to issue (d) but I exercise the powers conferred on me by Rule 73 of Probate and Administration Rules, the inherent power to do justice in the circumstances. I am moved to make the following orders:-
(1)That the letters of administration intestate made on 27th March 1991 to Lucy Wanjiru Ngugi and Eugene Nganga Ngugi are hereby revoked by the court on its own motion under Section 76 of the Law of Succession Act, as the said letters are now useless and inoperative following the death of Lucy Wanjiru Ngugi.
(2) That I appoint Eugene Nganga Ngugi the sole administrator of the estate of Simon Ngugi Nganga (deceased) and a grant of letters of administration de bonis non shall issue to him to enable him complete administration of the estate.
(3)That the confirmation order of 30th July 1992 is hereby reviewed to allow redistribution of the estate along the lines proposed in prayers (b) and (c) of the summons dated 3rd July 2012.
(4)That there shall also be a review in terms of prayer (d) of the said summons.
(5)That the certificate of confirmation of grant dated 31st July 1992 is hereby cancelled and a fresh certificate of confirmation shall issue accommodating the above changes.
Orders accordingly.
DATED, SIGNED and DELIVERED at NAIROBI this 7th DAY OF May, 2013.
W. M. MUSYOKA
JUDGE