[2013] KEHC 4924 (KLR)
The court held that the rectification of a grant under Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules is limited to correcting clerical errors and does not extend to substantive changes such as terminating a trust created by a confirmed grant. The provisions of Section...
Source-derived case information.
- Citation
- [2013] KEHC 4924 (KLR)
- Parties
- Applicant: Agnes Wanja Ngare; Applicant: Immaculate Wangui Muthama; Applicant: Peter Ngare; Applicant: Joyce Wangui; Applicant: Christopher Ndaruacha; Respondent: Administrators of the Estate of Joseph Muthama Ngare
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2210 of 2001
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Grant and Determination of Trust
- Outcome
- Application dismissed. Certificate of confirmed grant dated 10th March 2003 cancelled. Administrators to apply for confirmation of grant afresh.
- Legal Topics
- Rectification of Grant, Trusts in Succession, Distribution of Estate, Confirmation of Grant
- 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
Agnes Wanja Ngare
Applicant
Immaculate Wangui Muthama
Applicant
Peter Ngare
Applicant
Joyce Wangui
Applicant
Christopher Ndaruacha
Applicant
Administrators of the Estate of Joseph Muthama Ngare
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Grant and Determination of Trust
Legal Issues
- 1 Whether the trust created by the confirmed grant dated 10th March 2003 can be terminated through rectification of grant under Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules.
- 2 Whether the court has power under Section 101 of the Law of Succession Act and Section 45 of the Trustee Act to determine the trust and order distribution of the estate as sought by the applicants.
- 3 What is the proper procedure for distribution of the estate where a trust was created without prior determination of beneficiaries' shares.
Ratio Decidendi
The court held that the rectification of a grant under Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules is limited to correcting clerical errors and does not extend to substantive changes such as terminating a trust created by a confirmed grant. The provisions of Section 101 of the Law of Succession Act and Section 45 of the Trustee Act, though cited by the applicants, do not empower the court to determine or terminate the trust as sought. The court found that the proper procedure was not followed at confirmation, as the estate was not distributed and a trust was created over the undivided estate. Since the shares of the beneficiaries were never...
Court Disposition
Application dismissed. Certificate of confirmed grant dated 10th March 2003 cancelled. Administrators to apply for confirmation of grant afresh.
Orders
- The certificate of confirmed grant dated 10th March 2003 is hereby cancelled.
- Administrators to apply for confirmation of the grant made on 14th November 2001.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Succession Cause 2210 of 2001 [if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
</xml><![endif][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]
IN THE MATTER OF THE ESTATE OF JOSEPH MUTHAMA NGARE (DECEASED)
RULING
In her Summons for Rectification of grant dated 28th August 2012, the applicant seeks several orders, namely:-
(a) determination of trust
(b) rectification of grant
(c) removal of a restriction
The grant herein was confirmed on 10th March 2003. According to the confirmation certificate dated 10th March 2003 all the immovable assets were to be held in trust by the administrators for themselves and for all the dependants and minor children. The dependants and minors were listed as Agnes Wanja Ngare, Immaculate Wangui Muthama, Peter Ngare, Joyce Wangui and Christopher Ndaruacha. It is this trust that the applicants seek to have terminated to pave way for the distribution of the estate among the beneficiaries.
The application is premised on Sections 76and 101of the Law of Succession Act, Section 45 of the Trustee Act and Rules 43 and 73 of the Probate and Administration Rules.
Section 74of the Law of Succession Act deals with the errors that may be rectified by the court. Rectification is, by this provision, limited to:-
(a) errors in names and descriptions
(b) errors in setting out the place and time of the deceased‘s death
(c) errors in the setting out the purpose in a limited grant.
Rules 43 of the Probate and Administration Rules sets out the procedure to be followed in an application for rectification of a grant. Significantly, Rule 43 echoes the provisions of Section 74, by setting out what the rectification is about.
The applicants case is that they want the trust created on 10th March 2003 terminated. This termination would then require that the certificate of confirmed grant be altered to accommodate the termination. Would this call for a rectification of the grant under Section 74 and Rule 43? Quite obviously not. The circumstances in this case do not amount to errors. The situation cannot be handled through Section 74 and Rule 43. The circumstances of this case is not what is envisaged by Section 74 and Rule 43. The certificate of confirmed grant dated 10th March 2003 cannot be amended in the manner proposed to the application.
The application is also grounded on Section 101 of the Law of Succession Act and Section 45 of the Trustee Act. Section 101 of the Law of Succession Act saves the provisions of the Trustee Act. The effect of this is that the coming into force of the Law of Succession Act does not affect the application of the Trustee Act to trusts created under the law of succession. Section 45 of the Trustee Act deals with vesting orders of land. It addresses circumstances under which a court may make an order vesting land or other interest in a trustee.
It is not clear why these two provisions are cited in this application. However, since there is a prayer for determination of a trust, it is to be presumed that the provisions are cited in that respect. I have carefully read these provisions and I have been unable to see anything in them which empowers me to determine the trust created on 10th March 2003 in the manner proposed in the application. These provisions say nothing at all about determination of a trust.
The problem in this matter is that the grant was taken through a confirmation process, but the estate was not distributed. A trust was created over the compact estate without splitting into shares and then distributing the shares among the persons entitled. A determination of the trust will not lead to a distribution as the shares of the beneficiaries have not been determined. At confirmation, the estate ought to have been distributed and thereafter a trust created over the property; so that the distributed property is held in trust for the beneficiaries.
From the foregoing, the orders sought are not capable of being granted. The remedy to the administrators situation lies in cancelling the certificate of grant dated 10th March 2003, so as to reopen the estate for distribution. I hereby exercise the power saved in Rule 73 of the Probate and Administration Rules to order the cancellation of the said certificate. The administrators should thereafter apply for the confirmation of the grant made to them on 14th November 2001. The said certificate of 10th March 2003 is hereby cancelled. It is so ordered.
W. Musyoka
Judge
DATED, SIGNED and DELIVERED at NAIROBI this 26th DAY OF February, 2013.