[2013] KEHC 3717 (KLR)
The court determined that the omission of LR No: 209/9754/8 from the certificate of grant was not an error that could be rectified under Section 74 of the Law of Succession Act, as rectification is confined to correcting clerical or arithmetical mistakes or errors apparent on the face of the record. Instead, the...
Source-derived case information.
- Citation
- [2013] KEHC 3717 (KLR)
- Parties
- MISSING: Samson Mwenja Komo (Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 915 of 2003
- Procedural Posture
- Succession Cause / Ruling on Application for Rectification/review of Grant
- Outcome
- Application for rectification treated as an application for review and allowed.
- Judges
- DN Musyoka
- Legal Topics
- Succession, Rectification of Grant, Review of Orders, Omitted Assets
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Mwenja Komo (Deceased)
MISSING
Procedural Posture
Succession Cause / Ruling on Application for Rectification/review of Grant
Legal Issues
- 1 Whether the omission of LR No: 209/9754/8 from the certificate of grant can be rectified under Section 74 of the Law of Succession Act.
- 2 Whether the proper procedure is rectification or review of the confirmation order due to discovery of a previously unknown asset.
Ratio Decidendi
The court determined that the omission of LR No: 209/9754/8 from the certificate of grant was not an error that could be rectified under Section 74 of the Law of Succession Act, as rectification is confined to correcting clerical or arithmetical mistakes or errors apparent on the face of the record. Instead, the omission resulted from the administrators' lack of knowledge of the asset at the time of confirmation. The appropriate remedy in such circumstances is review of the confirmation order, not rectification. The court therefore reviewed the confirmation orders made on 18th February 2004 and 12th November 2007 and directed that a fresh certificate of grant issue to the administrators,...
Court Disposition
Application for rectification treated as an application for review and allowed.
Orders
- The confirmation orders made on 18th February 2004 and 12th November 2007 are reviewed.
- A fresh certificate of grant shall issue to the administrators reflecting LR No. 209/9754/8 as one of the assets.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Succession Cause 915 of 2003 [if gte mso 9]><xml>
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IN THE ESTATE OF SAMSON MWENJA KOMO – (DECEASED)
RULING
The application dated 5th February 2013 is for rectification of certificate of grant dated 18th February, 2004 and amended on 12th November, 2007. The principle ground is that an asset known as LR No: 209/9754/8 had been omitted from distribution as its existence was not known to the administrators at the time of confirmation.
A copy of the title has been exhibited in the affidavit in support of the application. It shows that the deceased Samson Komo Mwenja owned such a property.
This is not a case for rectification as there are no errors as envisaged by Section 74 of the Law of Succession Act. The situation relates to discovery of important material that could not be placed before the court at the material time of confirmation. It is a case for review.
I will review the confirmation order made on 18th February 2004 and that of 12th November, 2007. A fresh certificate of grant shall issue to the administrators reflecting LR. No. 209/9754/8 as one of the assets.
DATED, SIGNED and DELIVERED at NAIROBI this 9th DAY OF May, 2013.
W. M. MUSYOKA
JUDGE