[2010] KEHC 3021 (KLR)
The court found that the respondent, Irene Njoki Njuki, failed to disclose material facts regarding the existence of other beneficiaries entitled to inherit the deceased co-owner's share when she applied for rectification of the grant. The court held that the rectification sought by the respondent was not a mere...
Source-derived case information.
- Citation
- [2010] KEHC 3021 (KLR)
- Parties
- Applicant: Lucy Rwamba Njuki; Respondent: Irene Njoki Njuki
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 3 of 1998
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Rectification of Grant
- Outcome
- application allowed
- Legal Topics
- Succession of Estates, Rectification of Grant, Material Non Disclosure, Distribution of Land, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Rwamba Njuki
Applicant
Irene Njoki Njuki
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Rectification of Grant
Legal Issues
- 1 Whether the rectification of the grant by the respondent amounted to a lawful rectification under the Probate and Administration Rules.
- 2 Whether there was material non-disclosure by the respondent when seeking rectification of the grant.
- 3 Whether the property should revert to the original names in the certificate of confirmation pending proper determination of entitlement.
Ratio Decidendi
The court found that the respondent, Irene Njoki Njuki, failed to disclose material facts regarding the existence of other beneficiaries entitled to inherit the deceased co-owner's share when she applied for rectification of the grant. The court held that the rectification sought by the respondent was not a mere correction but amounted to a redistribution of the deceased's property, which is not permissible under the Probate and Administration Rules without the consent of all beneficiaries. The court emphasized that rectification should only address typographical or clerical errors, not substantive changes to the distribution of property. Consequently, the court allowed the applicant's...
Court Disposition
application allowed
Orders
- The application dated 13/10/2009 is allowed.
- Plot No. GATURI/GITHIMU/T.2250 shall revert to the names as they appear in the certificate of confirmation dated 25/9/2001.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Succession Cause 3 of 1998
LUCY RWAMBA NJUKI…………………………………………….APPLICANT
VERSUS
IRENE NJOKI NJUKI…………………………………………….RESPONDENT
R U L I N G
The grant of letters of administration in this matter was first confirmed on 25/9/2001. Plot No. GATURI/GITHIMU/T.2250 was given to Jane Gaturi Njuki and Irene Njoki Njuki who is now the Respondent in the application dated13/10/2009.
Jane Gaturi died in 2002 but Irene Njoki the Co-owner did not come to court until 2006. It is important to note that she also took 4 years to move the court and she cannot therefore be heard to complain that the applicant herein has taken too long to bring the instant application. Indeed she has taken 3 years as opposed to Irene’s 4 years.
After Jane Gaturi’s death, the Respondent moved this court vide the application dated 23/10/2006 seeking a rectification of the certificate of confirmation so that the plot in question could revert to her. The record will show that on the date her application was heard, the other beneficiaries were not in court.
I have noted that in her affidavit in support of the rectification of Grant, she did not mention that the Co-owner had any children who could ordinarily be entitled to inherit her property. The same affidavit did not raise the issues now raised in the replying affidavit to the present application.
To me therefore, there appears to have been material non-disclosure by Irene Njoki when she moved the court in the application for rectification.
Secondly, with deference to my sister Judge Khaminwa, the orders sought did not in my considered view amount to rectification as espoused under the P&A Rules. This actually entailed re-distributing the property of a deceased person. In the absence of consent from her beneficiaries and the other beneficiaries, the so called rectification should not have been allowed. My stand and my record will bear me out is that I have been very reluctant to allow rectifications unless they involve corrections of typographical errors, e.g mispelt names, wrong description of the properties involved etc…. but not transferring property from one party to another. I am satisfied that the application dated 13/10/2009has merit. The plot No. GATURI/GITHIMU/T2250 should revert to the names as they appear in the certificate of confirmation dated25/9/2001. The same should not therefore be interfered with or alienated in any way until the court is properly moved and a decision made on who is entitled to inherit the ½ share of plot no. GATURI/GITHIMU/T.2250.
I therefore allow the application dated 13/10/2009 and grant the orders as prayed.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 15th day of April 2010.
In presence of:- Mr. Ithiga for Applicant and Irene Njoki in person.