https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10359

Wambui v Mbogo (Civil Appeal E157 of 2024) [2026] KEHC 10359 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 10359 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E157 of 2024 MW Mutuku, J June 24, 2026 Between Timothy Chege Wambui Appellant and Fredrick P Mbogo Respondent (Being an appeal from the ruling of Hon. S.Kanyiri delivered on 30 th July 2024 in Kikuyu Magistrate’s Court vide Succession Cause No. 123 of 2016- In the matter of the Estate of Walter Chege Mbogo alias Walter Chege –Deceased) Ruling 1.Before this court is an appeal against a ruling delivered on 30th July 2024. The appellant filed a memorandum of appeal dated 29th August 2024 seeking the following orders:i)This appeal be allowed and the ruling of the honourable Magistrate delivered on 30th July 2024 be set aside.ii)Each party bear its own costs. 2.The memorandum is anchored on the following grounds:-i)That the learned magistrate erred and misdirected herself by awarding a ruling in favour of the applicants/respondents when the objector/appellant had brought to the courts attention that his rightful share was not of land was not indicated in the grant thereby subjecting him to a smaller share of the land parcel.ii)That the learned magistrate erred and misdirected herself by failing to give concrete reasons as to why she failed to exercise her discretion in favour of the appellant .iii)That the learned magistrate failed to consider the reasons advanced by the appellant as to why he was objecting to the rectification of the grant.iv)That the Honourable Magistrate failed to consider that the appellant was a lay man and that he appended his signature on the mode of the proposed distribution without having gone through to understand that his share had been significantly reduced. Back ground. 3.The application dated 8th April 2024 was filed by the Administrator herein and sought the following several prayers. The fist prayer sought for was that the Grant of Letters of Administration issued on 13th July 3016 and the Certificate of Confirmation of Grant issued on 27th March 2029 be rectified /reviewed to indicate Walter Chege Mbogo also known as Walter Chege. 4.The second prayer was that the acreage of the portion to be shared by the beneficiaries of the deceased herein be rectified to read 1 ½ Acre from Karia /Gikambura/465. 5.The application was premised on the grounds that the process of transmission could not be completed as one of the names of the deceased had been left out, and that the deceased was also known as Walter Chege, hence the need to have the names rectified. 6.In regard to the second prayer, the appellant deposed that in the application for confirmation of grant that the portion to be shared out by the beneficiaries of the deceased was indicated as 1 ½ Acre from the parcel of land known as Karia/Gikambura/465 but during the issuance of the Certificate of confirmation of Grant, the acreage was erroneously indicted as Karia/Gikambura/ 1 ¼ acre. 7.The application was supported by the supporting affidavit of Fredrick P. Mbogo dated 8th April 2024. 8.In his replying affidavit to the impugned application, the appellant opposed the application, and deposed that the administrator had misled him into confirming the grant accepting 0.05 Ha as his share out of the land, while his correct share should be 0.2 Ha. 9.Further that the grant was obtained fraudulently by concealment of the fact that the size of the land parcel allocated to him had been significantly reduced when preparing the mode of distribution, a fact that he only became aware of after the grant was confirmed. 10.The application was canvassed by way of written submissions, which I have considered. Issue for determination. 11.I have considered the appeal and the submissions. There is only one issue for determination and that is:- Whether the court was right to order the rectification of the grant. 12.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.” 13.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 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 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 made.” 14.From the wording of these provisions which deal with rectification of grant, it is clear that the scope of rectification of grant is limited to correction of errors in the names and description or in setting forth the time and place of the deceased’s death and place of death of the deceased. In general, terms rectification is meant to correct errors which will not substantially interfere or change the grant and the certificate of grant. I may also point out that minor errors are what rectification seeks to address. 15.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.”It is that clear matters which may substantially affect the grant are best addressed through an application for review of the Judgment or appeal. 16.The first prayer for rectification of names of the deceased is not opposed by the appellant. The applicants second prayer sought had rectification of acreage on the confirmed grant to reflect the position as had been agreed at the time of confirmation of grant. The honourable trial magistrate considered had relied on the affidavit of the applicants in support of summons for confirmation of grant in arriving at her decision. 17.I have taken the liberty to peruse the record of the lower court. More particularly, I have taken keen interest in the content of the affidavit in support of the application for confirmation of grant dated 13th February 2019. At paragraph 7 of the supporting affidavit, which outlines the proposed mode of distribution, item (i) makes reference to “1 ½ Acre out of Karai/Gikambura/465”. When all the beneficiaries appeared before the court for confirmation, the then trial magistrate indicated in the proceedings that in absence of objections on the proposed mode of distribution, that the grant was then confirmed in as stated in the affidavit in support of the application dated 13th February 2019. On this date, the appellant was in court and appended his signature on the court record. 18.Consequently, when the Confirmed Certificate of grant was issued on 27th March 2019, the same indicated 1 ¼ Acre instead of 1 ½ acre as indicated in the supporting affidavit and endorsed by parties. I find that the learned magistrate properly applied herself , as what was sought to be rectified was errors may be which they related to names or descriptions as provided for under the Law of Succession Act. 19.I have looked at the replying affidavit of the appellant in the lower court proceedings. In replying the affidavit dated 8th April 2024, the appellant at paragraph 6 raised the issue of fraud. In my view, this is a substantial issue which can best be addressed through an application for review of the judgment or appeal. 20.I have looked at the impugned ruling and find that the honourable magistrate appreciated the facts and the law in reaching the decision that the administrator did not seek to vary the mode of distribution agreed by the parties. She gave reasons, backed by facts that there was a typographical error on the acreage in the Certification of confirmation. This is supported by the application for confirmation dated 13th February 2019 and the annexed supporting affidavit. 21.In the upshot, I find no merit in the appeal, and the same is dismissed. 22.This being a family matter, there shall be no orders as to costs. DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 24TH DAY OF JUNE 2026In The Presence Of:MARTHA MUTUKU.JUDGE.Parties:-Appellant- No appearance.Advocate for the respondent- Mrs Kinyanjui.Court Assistant –Mr. Kibet