[2013] KEHC 3576 (KLR)
The court found that the error in the certificate of confirmation of grant was not a clerical error but a substantive one originating from the administrator's own proposal. As such, it could not be rectified under Section 74 of the Law of Succession Act. However, the court held that sufficient reasons existed for...
Source-derived case information.
- Citation
- [2013] KEHC 3576 (KLR)
- Parties
- Applicant: Jane Wangari Ngethe; Respondent: Rahab Wanjiru Ngethe
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1932 of 2007
- Procedural Posture
- Succession Cause / Ruling on Application to Review Certificate of Confirmation of Grant
- Outcome
- application for review of certificate of confirmation of grant allowed
- Judges
- DN Musyoka
- Legal Topics
- Succession, Confirmation of Grant, Rectification of Grant, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jane Wangari Ngethe
Applicant
Rahab Wanjiru Ngethe
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Review Certificate of Confirmation of Grant
Legal Issues
- 1 Whether the certificate of confirmation of grant can be rectified to correct an alleged error in the allocation of estate assets.
- 2 Whether the error in the certificate was a clerical error or a substantive error requiring review under the Civil Procedure Rules.
Ratio Decidendi
The court found that the error in the certificate of confirmation of grant was not a clerical error but a substantive one originating from the administrator's own proposal. As such, it could not be rectified under Section 74 of the Law of Succession Act. However, the court held that sufficient reasons existed for reviewing the order under Order 44 of the Civil Procedure Rules, as applied by Rule 63 of the Probate and Administration Rules. Exercising its inherent power under Rule 73, the court reviewed the order of 12th May 2009 and directed that a fresh certificate of confirmation of grant be issued in accordance with the correct occupation of the estate assets as proposed in the...
Court Disposition
application for review of certificate of confirmation of grant allowed
Orders
- The certificate of confirmation of grant issued on 5th June 2009 is reviewed as proposed in the application dated 15th July 2013.
- A fresh certificate of confirmation of grant shall issue accordingly.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Succession Cause 1932 of 2007 [if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif]
IN THE ESTATE OF PETER NGETHE KAMAU– (DECEASED)
RULING
Jane Wangari Ngethe is the administrator of the estate Peter Ng'ethe Kamau. The grant was confirmed on 12th May 2009. The estate comprises of two households: one of Jane Wangari Ng'ethe and her children, and the other of Rahab Wanjiru Ng'ethe and her children.
This application touches on only two assets – Kiambaa/Karura/T22 and Kiambaa/Karura/T24. According to the certificate of confirmation issued on 5th June 2009, Kiambaa/Karura/T22 went to Rahab Wanjiru Ng'ethe and her children while Kiambaa/Karura/T24 went to Jane Wangari Ng'ethe and her children. The administrator argues there was a mistake and the must have been a mix up. She says Rahab Wanjiru Ng'ethe and her children reside at Kiambaa/Karuri/T24 and not T22, while Jane Wangari Ng'ethe and her children are on Kiambaa/Karura/T22 and not T/24. She asks that the certificate of confirmation of grant be rectified to correct the error.
I have perused the confirmation application dated 17th November 2008. I have noted that the error was of the administrator, she proposed that Kiambaa/Karura/T22 be alloced to Rahab Wanjiru Ng'ethe while Kiambaa/Karura/T24 be allocation to Jane Wangari Ng'ethe. This was not an error on the face of the record. It cannot be cured by Section 74 of the Law of Succession Act.
The applicant should have come to court under Rule 63 of the Probate and Administration Rules and Order 44 of the Civil Procedure Rules, seeking to have the order of the 12th May 2009. , reviewed. Under Order 44 of the Civil Procedure Rules, which applies by virtue of Rule 63, a court order can be renewed where there are sufficient reasons for such review. I find that sufficient reasons do exist in this case, the applicant should have properly sought review of the order of 12th May 2009.
I have power under Rule 73 of the Probate and Administration Rules to do justice. I will invoke that power to review the order of the court made on 12th May 2009. The certificate of confirmation of grant issued on 5th June 2009 is hereby reviewed along the lines proposed in the application dated 15th July 2013. A fresh certificate shall issue accordingly.
DATED, SIGNED and DELIVERED at NAIROBI this 10th DAY OF May, 2013.
W. M. MUSYOKA
JUDGE
[if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]