[2016] KEHC 2959 (KLR)
The court found that the share of Josiah Munene was indeed not legible on the certificate of confirmation of grant, which constituted an error apparent on the face of the record. The application for rectification was justified as it did not seek to vary the agreed mode of distribution among the beneficiaries but...
Source-derived case information.
- Citation
- [2016] KEHC 2959 (KLR)
- Parties
- Applicant: Margaret Njoki Kamau; Respondent: Julius Kibai
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 222 of 2010
- Procedural Posture
- Succession Cause / Ruling on Application for Rectification of Grant
- Outcome
- application for rectification of grant allowed
- Legal Topics
- Rectification of Grant, Probate and Administration, Distribution of Estate
- 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
Margaret Njoki Kamau
Applicant
Julius Kibai
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Rectification of Grant
Legal Issues
- 1 Whether there is an error apparent on the face of the record in the certificate of confirmation of grant regarding Josiah Munene's share.
- 2 Whether the rectification sought alters the agreed mode of distribution among the beneficiaries.
Ratio Decidendi
The court found that the share of Josiah Munene was indeed not legible on the certificate of confirmation of grant, which constituted an error apparent on the face of the record. The application for rectification was justified as it did not seek to vary the agreed mode of distribution among the beneficiaries but merely to clarify the record to enable proper execution of the grant. The court relied on the consent filed by all beneficiaries and the relevant statutory provisions to allow the rectification as prayed.
Court Disposition
application for rectification of grant allowed
Orders
- The certificate of confirmation of grant shall be rectified to clearly indicate Josiah Munene's share as 1.104 acres.
- No orders as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
SUCCESSION CAUSE NO. 222 OF 2010
IN THE MATTER OF THE ESTATE OF KAMAU NDINGA alias KWARIGIA NDONGA (DECEASED)
MARGARET NJOKI KAMAU..............................................APPLICANT
VERSUS
JULIUS KIBAI..................................................................RESPONDENT
RULING
1. This is an application for rectification of the grant brought by summons under section 74 of the Law of Succession Act (Cap 160) Laws of Kenya and also under Rule 43 of the Probate and Administration Rules. The summons for rectification is supported by three grounds set out on the face of the said summons. The first ground is that there is an error apparent on the face of the record. The second ground is that the share of the estate given to Josiah Munene is not legible on the certificate of confirmation of grant issued on 11th November 2010. The third ground is that the said Josiah Munene was given 1. 104 acres out of the estate.
2. The application is anchored in a ten paragraph affidavit in support of the summons for rectification of the grant deponed to by the applicant. The applicant has deponed that she is the administratrix of the estate. She has further deponed that the share given to Josiah Munene is not legible on the certificate of confirmation of grant. She has also deponed that it is only when she was executing the confirmed grant that she noticed that the share of Josiah Munene was not legible. Furthermore, it is her affidavit evidence that she is not seeking to vary the mode of distribution, which had been agreed to by all the beneficiaries. According to that consent on the distribution of the estate, which is annex marked MNK2, Josiah Munene was to get 1. 104 acres. Finally, the applicant has deponed that she is unable to distribute the estate to the beneficiaries unless the shares of the beneficiaries are legible on the certificate of confirmation of grant.
3. I have considered the affidavit evidence of the administratrix/applicant and I find that the share of Josiah Munene is 1. 104 acres. This is clear from the consent on the mode of distribution, which was filed in the High Court on 11th November 2010. I also find that the administratrix is not changing the mode of distribution as agreed to by all the beneficiaries.
4. In the light of the foregoing, I find that the application for rectification of the certificate of confirmation of grant is justified. It is an error apparent on the face of the record. And for that reason, I grant the applicant's application in terms of prayers No. 1 and 2 of the summons for rectification of the grant dated 1st July 2016.
5. There will be no orders to costs.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 16th day of AUGUST, 2016
In the absence of Mr Magee Wa Magee for the Applicant
Court clerk Njue
J.M. BWONWONGA
JUDGE
16. 08. 16