1.Before the court is the summons for rectification of grant dated 12.06.2023. The application is premised on section 47 of the Law of Succession Act Rules 43(3) and 73 of the Probate and Administration Rules. The applicant seeks the following orders;i.Spent.ii.That the certificate of confirmation of grant issued to Alex Karangae in this matter confirmed on the 29th June 2010 be amended pursuant to the orders issued on the 4th day of July 2018 by Hon. J.W. Bwonwong’a in the following respects;a.That the confirmed grant dated 29th June 2010 be and is hereby amended in respect to property comprise in Narok/CIS-MARA NAIRAGIE ENKARE/77 and be distributed as follows;
iii.That no order as to costs.
|SHARE IN ACREAGE
|Benson Shau Kesier
|David Kesier Karangae
|Simion Kofo Karangae
|Benson Kamau Karangae
|John Njoroge Karangae
|Hezron Kofo Karangae
|George Kesier Karangae
2.The application is based on the grounds set out on the face of the application and the supporting affidavit of Alex S. Karangae sworn on 12.06.2023.
3.The applicant argued that the certificate of confirmation of grant herein issued to Alex S. Karangae Rawal (retired).
4.Pursuant to the court orders by Ho. J.W. Bwonwong’a issued on 04.07.2018 the above certificate of confirmation was supposed to be amended to provide Four (4) acres to Benson Shau Kesier in respect to property comprise in Narok/ Cis-Mara Nairagie Enkare /77.
5.There is urgent need to rectify the said certificate of confirmation to comply to with the court orders and in order to enable distribution of the estate of the deceased among the beneficiaries.
6.The said certificate of confirmation presents anomalies and difficulties in transfer process if not amended.
7.The amendment is material for the benefit of the beneficiaries who cannot fully enjoy without amending the said certificate of confirmation in compliance with the court orders.
8.That it is in the interest of justice that the said certificate of confirmation be amended to include Benson Shau Kesier indicated above.
9.It would not be possible to distribute the said property without amendment of the said certificate of confirmation of grant.
10.There is a risk of the estate going to waste if the same are not distributed to the beneficiaries.
11.That the amendments which are as a result of the honourable court orders is not opposed by any of the beneficiaries by virtue of it being the court order which no appeal has been preferred.
Analysis And Determination
12.The application herein has been made under summons for rectification of Grant. Rectification of Grants is provided for under section 74 of the Law of Succession Act, Cap 160, Laws of Kenya as follows: -
13.Rule 43(1) of the Probate and Administration Rules states as follows: -
14.But, the procedure for rectification of grant is quite limited to correction of errors in description of a property or a name or purpose in a limited grant. The procedure is not appropriate or competent to handle substantive matters.
15.The appropriate procedure where substantive matters have arisen which should be incorporated in the grant, is review jurisdiction. And, as a matter of procedural consequence, a successful review of orders of the court invariably entails amendment of the grant and certificate of confirmation, as the case may be. It is therefore prudent that the applicant seeking review should also seek these corollary orders to avoid future and unnecessary litigation as is the case here.
16.See Re Estate of Charles Kibe Karanja (Deceased) 2015 eKLR where the Court held as follows: -
17.In this case, the parties should have applied in the initial application in which orders for amendment of grant was made, for orders of fresh distribution of the affected property. And, as a consequence of orders of distribution, issuance of an amended certificate of confirmation of grant would have been invariable.
18.Whereas the applicant has approached the court through the wrong procedure, following the amendment of the grant, it is only fair and just to review earlier distribution on, and order a fresh distribution in respect of the affected property.
19.Accordingly, the application dated 12th June 2023 is allowed. Duly amended certificate of confirmation to issue. No order as to costs.
20.It is so ordered.