1.Before the court is a Summons Application dated March 21, 2023 where the Applicant prays for the following orders:a.That this Honorable court be pleased to rectify Grant of letters of Administration intestate issued upon Eric Kiruja Mureithib.That this honorable court be pleased to issue a rectified confirmation of Grant of Letters of Administration reflecting land parcel Kiirua/Kiirua Nkando/336 to form part of the estate of the deceased in the schedule of distribution of the assets of the estate of the deceasedc.That the mode of distribution of the estate of the deceased be rectified as shown in the schedule of Distributiond.That the costs of the application be made in the cause
3.In this case, the deceased Samuel Muriithi Mugambi died on May 16, 2004. Consequently, Eric Kiruja Muriithi was issued with Grant of letters of Administration to the estate of the deceased on July 6, 2005. The Grant was subsequently confirmed on September 17, 2007 and rectified on April 21, 2015.
4.The Applicant states that when petitioning for letters of Administration, land Parcel Kiirua/Kiirua Nkando/336 was omitted in the list of the assets of the estate of the deceased. The Applicant further stated that in recollecting the estate of the deceased, he discovered the said property.
5.The Applicant seeks to rectify both the grant and the confirmation of grant to incorporate the property to form part of the estate of the deceased.
6.The Application is unopposed.
8.Rectification of a grant of Letters of Administration is therefore limited to matters set out under Section 74 of the Law of Succession Act. As per this provision rectification of grant deals specifically with correction of error which the court may order without changing the substance of the grant. This includes errors in names, description of any person or thing or an error as to the time or place of death of the deceased or the purpose for which a limited grant was issued. An error which is visualized under the Section is a mistake which may occur on the face of the grant like typing errors in names of persons or the things. A rectification seeking to include properties which were not in the schedule of the assets when filing the cause and not included in the grant may not fit in the matters provided under Section 74 of the Act.
13.There is harmony in the above decisions that rectification of grant deals with correction of errors and/or mistakes in names and description. A party seeking rectification to bring in assets not originally included in the grant cannot be said to be seeking rectification. An application for review listing the assets and proving their discovery and that they could not be included in the grant despite the exercise of due diligence would be appropriate and would give the court opportunity to consider whether to review the grant or not.
15.In this regard, the court can entertain any application of whatever nature under section 47 aforesaid and invoke its inherent power under Rule 73 and make orders for the sake of justice.
17.I will invoke the above provisions to determine whether the Confirmation of Grant can be reviewed. Under Order 45 of the Civil Procedure Rules, review can only be allowed under the following circumstances:Discovery of new and important matter of evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the Order made.2.Mistake or error apparent on the face of the record.3.Any other sufficient reason which may make the court to review its order.
18.The Applicant avers that the property was not included in the Petition and was as a result not included in the confirmed Grant.
19.In National Bank of Kenya Ltd versus Njau (1995-1998) 2EA 249 (CAK); at page 253 of the judgment, the Court said: -
20.There has been no objection raised by the other beneficiaries or by any other person with regard to this application. The Applicant has attached a copy of the Title Deed marked EK02 proving that the deceased was the owner of Kiirua/Kiirua Nkando/336.
21.Given that the review succeeds, the Grant and the resultant Cconfirmation of Grant shall be amended to include property Kiirua/kiirua Nkando/336
22.Costs shall be in the cause