Case Metadata |
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Case Number: | Succession Cause 506 of 2006. |
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Parties: | In re Estate of Philip Opuka |
Date Delivered: | 18 Dec 2015 |
Case Class: | Civil |
Court: | High Court at Kakamega |
Case Action: | Ruling |
Judge(s): | Margaret Njoki Mwangi |
Citation: | In re Estate of Philip Opuka [2015] eKLR |
Court Division: | Family |
County: | Kakamega |
Case Outcome: | Application Dismissed |
Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT KAKAMEGA.
SUCCESSION CAUSE NO. 506 OF 2006.
IN THE MATTER OF ESTATE OF PHILIP OPUKA ::::::::: DECEASED.
AND
JAVAN ODINGA OPUKA :::::::::::::::::::::::::::::::::::::::: PETITIONER.
R U L I N G.
The application is premised on the ground that at the time of filing the application for grant, the above property belonging to the deceased was not included amongst his assets.
Determination of the application
“The full name of the deceased to whose estate the proceedings herein relate is Philip Opuka (also known as .............)”
The space provided for the deceased’s other names was never filled in.
“Where it is desired to describe the deceased in a grant by more names than one, the applicant shall state in the application the usual name or names of the deceased and shall state the reason for the inclusion of the other name or names in the grant.”
“Errors in names and descriptions, or in setting fourth (sic) 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.”
The procedure for seeking the relief is set out in rule 43 (1) of the Probate and Administration rules. It states that:-
“Where the holder of a 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 place of the deceased or in the case of a limited grant, the purpose for which the grant was made ...........”
The above provisions show that rectification of grants are restricted to the following instances:-
“An error is essentially a mistake. For the purposes of Section 74 and Rule 43, it must relate to a name or description or time and place of the deceased’s death, or the purpose of a limited grant. Is an omission of a name or in the description of a thing an error? It would be an error if say a word in the full name of a person is omitted or a word or number or figure in a description is omitted. But where the full name of a person or a full description of a thing or property is omitted, it would be stretching the meaning of the word “error” too far to say that that would amount to the error or mistake envisaged in section 74 and Rule 43. In this case it cannot be said that the property was omitted by error or mistake as the administrators did not know of the property at the time they sought letters and confirmation thereof. The omission of the property is a matter that does not fall under the purview of Section 74 of the Law of Succession Act.”
DELIVERED, DATED and SIGNED at KAKAMEGA on this ....................18TH ....... day of ......................DECEMBER,.................., 2015.
NJOKI MWANGI.
JUDGE.
In the presence of:-
................................................................................................ for the Petitioner.
.................................................................................................... Court Assistant.