https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10684

In re Estate of Methu (Deceased) (Succession Cause 1627 of 2015) [2026] KEHC 10684 (KLR) (Family) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10684 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 1627 of 2015 HK Chemitei, J July 16, 2026 IN THE MATTER OF THE ESTATE OF WAINAINA METHU (DECEASED) Between Monica Njambi Wainaina Applicant and Virginia Njokabi Mwaura Respondent Ruling 1.The summons for rectification of certificate for confirmation of Grant dated 28th May 2024, brought under section 74 of Laws of Succession Act and Rule 43 of the Probate and Administration Rules prays for orders that:1.Spent2.The Grant of letters of administration and the certificate of Grant of letters of administration issued to the said Virginia Nyokabi Mwaura and Monica Njambi Wainaina in this matter be rectified as follows:a.The name of one Kimani Methu be removed as a beneficiary of the estate of the deceased and his share in the estate be given to Milka Njambi Karugu.b.The Respondent one Virginia Nyokabi Mwaura be removed as a co- administrator of the estate of the deceased.In defaultc.The Respondent be compelled by an order of this honourable Court to co-operate and complete the distribution of the estate of the deceased by providing a copy of her ID card, KRA pin and passport size photos and do execute the subdivision/transfer forms over LR No. Dagoretti/Mutuini 154.d.The Deputy Registrar Family Division of the High Court be authorized to execute the subdivision/transfer forms over LR No. Dagoretti/Mutuini 154 in her place.e.The Registrar of Land Nairobi be authorized to effect the transfer of the said over LR No. Dagoretti/Mutuini 154 without necessarily requiring the production of the Respondent`s copy of ID card, KRA pin and passport size photos. 2.The Applicant's application is supported by the affidavit of Monica Njambi Wainaina. She depones that the Respondent has, for over four years since the confirmation of the Grant, failed and/or refused to cooperate in the distribution of the deceased's estate to the beneficiaries. She further avers that, owing to the Respondent's refusal to execute the necessary transfer documents, the administration of the estate has stalled, leaving no alternative but to seek the intervention of the Court. 3.The Applicant therefore prays that the Grant of Probate issued to the Respondent be revoked and reissued to her or, in the alternative, that the Respondent be compelled to execute the requisite transfer documents, failing which the Deputy Registrar be authorized to do so. 4.She further states that one of the beneficiaries, Kimani Mathu, has since died without leaving any heir or dependant, making it necessary for his name to be removed from the list of beneficiaries and his share redistributed to the surviving beneficiary. She maintains that the orders sought will not occasion any prejudice to the Respondent. 5.The Application is supported by the Applicant's Supporting Affidavit dated 28th May 2024. The Respondent opposed the Application by filing a Replying Affidavit dated 25th July 2025. The Applicant subsequently filed written submissions dated 6th March 2026, while the Respondent filed written submissions dated 9th March 2026. Issues For Determination 6.I have considered the application, the affidavit in support thereof, the Replying Affidavit, and the parties' respective submissions. In my view, the following issues arise for determination:a.Whether the Applicant has established sufficient grounds for the rectification of the confirmed grant.b.Whether the Applicant has established sufficient grounds for the removal of the Respondent as a co-administrator of the estate.c.Whether the share of the estate allocated to Kimani Mathu (deceased), a beneficiary of the estate, can lawfully be reallocated to Milka Njambi Wainaina in these proceedings. Analysis And Determination 7.The jurisdiction of this Court to order rectification of grant is granted by Section 74 of the Law of Succession Act. The Section provides:“Errors in names and descriptions, or in setting out the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the Court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.” 8.The marginal notes under the section states that errors may be rectified by the Court. On the other hand, Rule 43(1) of the Probate and Administration Rules provides:“Where the holder of grant seeks pursuant to the provisions of Section 74 of the Act, rectification of an error in the grant as to the names or descriptions of any person or thing or as to the time and places of the death of the deceased or, in the case of a limited grant, the purpose for which the grant was made, he shall apply by summons in Form110 for such rectification through the registry and in the cause in which the grant was issued.” 9.From the wording of these provisions which deal with rectification of grant, it is worth emphasizing that rectification under Section 74 of the Law of Succession Act is intended to address minor errors in names, descriptions, or other clerical mistakes, and not to reopen or substantially alter the distribution of the estate. 10.Other matters that may substantially affect the grant are more appropriately addressed through an application for review of the judgment or by way of an appeal. In the present application, the Applicant seeks to redistribute the estate by removing Kimani Methu as a beneficiary and substituting him with Milka Njambi Wainaina on the ground that Kimani Methu is deceased and was not survived by any beneficiaries. The Applicant further contends that the parties have agreed that the portion of the estate measuring 0.615 acres, which had been allocated to Kimani Methu, should instead be allocated to Milka Njambi Wainaina. 11.The Respondent, who is a co-administrator of the estate, opposed the application through a Replying Affidavit sworn on 25th July 2025. In her submissions, the Respondent contended that rectification of a grant is intended only to correct clerical or typographical errors. She therefore argued that the present application is procedurally incompetent and fatally defective, as it seeks substantive orders for the removal of a beneficiary from the confirmed grant and the redistribution of that beneficiary's share of the estate. According to the Respondent, these are far-reaching remedies that fall outside the scope of rectification of a grant and ought to be pursued through the appropriate legal process. 12.On the issue of whether the share of the estate allocated to Kimani Mathu (deceased), a beneficiary of the estate, can lawfully be reallocated to Milka Njambi Wainaina in these proceedings, the Respondent submitted that the prayer is legally untenable. According to the Respondent, Section 39 of the Law of Succession Act applies only to the initial distribution of a deceased person's estate and cannot be invoked to redistribute a beneficiary's share after confirmation of the grant. 13.In the matter of the Estate of Geoffrey Kinuthia Nyamwenga deceased [2013] eKLR the Court stated.“The law on rectification or alteration of grants is Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules-What these provisions mean is that errors may be rectified by the Court where they relate to names or descriptions, or setting out of the time or place of deceased’s death. The effect is that the power to order rectification is limited to those situations, and therefore the power given to the Court by these provisions is not general….” Where a proposed amendment of a grant cannot be dealt with under the provisions of Section 74 of the Law of Succession Act, the applicant ought to approach the Court under order 44 of the Civil Procedure Rules. A review under Order 44 of the Civil Procedure Rules may be sought upon discovery of new and important matter or on account of some mistake or error apparent on the face of the record, or for any sufficient reason. The applicant in this case should have moved the Court under this Provision-Order 44 of the Civil Procedure Rules on account of some mistake or error apparent on the face of the record and on the ground that there exists a sufficient reason for review of the certificate of the confirmation of the grant.” 14.In re Estate of Late Sophia Michere Njogu (Deceased) [2025] KEHC 2293 (KLR)The principal question before the Court was whether the application, framed as one for rectification of grant, could properly be used to introduce substantial additional estate assets after confirmation of the grant. The Court held that the relief sought could not properly be granted through rectification. Having treated the application as one for review, the Court found that the applicants had not established sufficient grounds to justify reviewing or altering the earlier orders. 15.In re Estate of M’mbwiria M’mairanyi (Deceased) [2022] KEHC 16336 (KLR) The Court stated that:“There is no provision in the Act that permits rectification or amendment by adding a new beneficiary in the grant or to redistribute the estate." 16.In view of the foregoing, I find that the Applicant has not met the legal threshold necessary for the grant of the orders sought. The Application does not disclose sufficient grounds to warrant the rectification of the confirmed Grant, the removal of the Respondent as a co-administrator of the estate, or the reallocation, within these proceedings, of the share of the estate allocated to Kimani Mathu (deceased) to Milka Njambi Wainaina. Upon the death of Kimani Mathu, his entitlement formed part of his own estate and can only devolve through succession proceedings instituted in respect of his estate in accordance with the Law of Succession Act. 17.Accordingly, the Application dated 28th May 2024 is devoid of merit it is dismissed. 18.Each party to bear its own costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 16TH DAY OF JULY, 2026.H.K. CHEMITEIJUDGE, FCIArb.