1. Before me for determination is the application dated 16th August 2021, in which the applicant seeks to amend the Certificate of Confirmation of Grant to reflect the proposed division of land parcel NYARIBARICHACHE/B/B/BOBURIA 1064 among the beneficiaries as follows:
a. Daniel Makori Arasa 0.25 ha
b. Angelica Moraa Okongo 0.69 ha
c. Wilson Mongare Nyakoiro 0.5 ha
d. Jackson Ombaki Arasa. 0.51 ha
2. In his annexed supporting affidavit dated 16th August 2021, Jackson Ombaki, the applicant asserts that;
a) They have agreed to distribute the estate as shown in the annexed amended property schedule of the estate of the deceased marked as JOA-1.
b) At the time of the confirmation, he had indicated that the land parcel NYARIBARICHACHE/B/B/BOBURIA /1064 be transferred wholly to him. That the said parcel was to be shared among other beneficiaries of the estate of the deceased.
c) That the purpose of this affidavit is so that the court can amend the schedule in the certificate of confirmation of grant to the estate of the deceased issued on the 6th day of February so that it can be shared amongst all beneficiaries and adopt the distribution of the estate.
3. In her replying affidavit dated 24th November 2021, Anjerica Moraa Okongo, the respondent, opposes the application by stating that the applicant had lawfully and legally transferred a portion of the land from the said parcel to her. Which portion measures 0.8 hectares and is registered as NYARIBARI CHACHE/B/B/BOBURIA/14992. Title deed is annexed as AMO 1. She contended that the original land parcel 1064 has been so far divided and distributed to several other people including the purchasers who are not parties in this application, which can be seen from a photocopy of the letter from the applicant to the land registrar, annexed as AMO 2. She deponed that the petitioner has not availed any material to warrant amendment of the certificate of confirmation of the grant.
4. In the further supporting affidavit of Jackson Ombaki dated 7th February 2022, the applicant stated that;
1. When the surveyor carried out the exercise of surveying land parcel NO B/B/BOBURIA/1064, all beneficiaries were not present as required by the Survey Act.
2. The mutation of parcel NO B/B/BOBURIA/14992 registered in the name of ANJERICA MORAA has not been exhibited to demonstrate the size curved out from land NO B/B/BOBURIA/1064 and the remaining portion in actual measurements.
3. No official search in respect of land parcel NO B/B/BOBURIA/14992 has been attached to prove that it was officially registered in the Land Registry.
4. The respondent proceeded to commit an illegality by misrepresentation at the land Registry and proceeded to procure three [3] title deeds being NO B/B/BOBURIA/14992, 11407 and 16037 in my name. Attached herein are copies marked JOA1 [a-c].
5. It is unusual that the title deed issued to the respondent is purported to have been issued on the 8th day of September 2017 while the other two [2] in my name are issued on the 6th day of February 2018 and 19th June 2019
6. That the act of the respondent to collude with the surveyor and or workers at the land Registry to produce title deeds without the consent of the administrator or other beneficiaries has drastically changed the exact acreage of the whole land and what each beneficiary is entitled to .
7. That after conducting another survey on the land parcel of NO B/B/BOBURIA/1064 measuring approximately 2ha and not 1.4 Ha as originally indicated and reason why the amendment should be done.
8. That he has never appeared before any advocate for executing of transfer forms and therefore, the survey and procurement of title deeds was done fraudulently.
9. THAT as the legal administrator it is his wish that the land parcel comprising the estate being B/B/BOBURIA/1064 now measuring approximately 2ha should be shared equally among four [4] beneficiaries namely:
1] JACKSON OMBAKI ARASA,
2] DANIEL MAKORI ARASA,
3] ANJERICA MORAA OKONGO’O and
4] WILSON MONG’ARE NYAKOIRO [to hold in trust of his siblings] as it was done in the case of land parcel BOGUMBE/MABERA/454 measuring approximately 2ha where all the beneficiaries got equal share.
5. In the further replying affidavit of Anjerica Moraa dated 23rd May 2022, she contended that:
1. An inspection in the land registries in respect to land parcel number NYARIBARI CHACHE/BOBURIA 1064 was done and the findings were as follows:
a) THAT the Green Card for land parcel no. NYARIBARI CHACHE/BB BOBURIA/1064 is not available at the binder and efforts to trace the same in the office were not successful.
b) THAT the following land parcels which apparently are in the applicant’s names which appear to have been created out of subdivision and re sub-divisions from land parcel no. NYARIBARI CHACHE B,B/BOBURIA/11064 are in the Petitioner’s names which are:
NYARIBARI CHACHE B,B/BOBURIA/11407,11408,11409,14991, 14993,14997 and 16037.
c) THAT there is also land parcel no. NYARIBARI CHACHE BB/BOBURIA 14999 in the name of GRACE MORAA MASENO which also was created out of the mother title NYARIBARI CHACHE B.B/BOBURIA/1064 or a resultant number therefrom.
d) THAT there is also a land parcel no. NYARIBARI CHACHE BB/BOBURIA/14992 which is in his name which was/is my entitlement from the estate of the deceased.
2. The respondent further states that since the petitioner is the person who was the Centre of the various sub-divisions of the mother title NYARIBARI CHACHE B,B/BOBURIA/1064 and other resultant parcels and since some of the records thereof are missing in the lands office the Petitioner is better placed to tabulate before this Honorable Court all the sub-divisions and the transfers if any he has made to any persons.
6. In the replying affidavit of Jackson Ombaki dated 9th June 2022, the applicant asserts that
the title numbers NYARIBARICHACHE/B/B/BOBURIA/14992 and B/B/BOBURIA /14999 belonging to ANGERICA MORAA OKONG’O and Grace Moraa Maseno were fraudulently obtained and that he has attached all legal documents he obtained as the legal administrator of the estate. Lastly he submits that according to the last survey on the estate the land is measuring 2Ha and not 1.4 as previously indicated and therefore requests approval for the necessary change.
APPLICANT SUBMISSIONS
7. The applicant submits that the beneficiaries aforementioned participated and/or consented to the mode of distribution of the deceased’s estate including the respondent and that the respondent is the only person who is objecting. That it is not true that the petitioner caused subdivision and transfer of LR NO.NYARIBARI CHACHE/B/B/BOBURIA/1064 in favor of the respondent and GRACE MORAA MASENO as the registered proprietor of the purported LR NO.NYARIBARI CHACHE/B/B/BOBURIA/14992 and 14999. That the respondent herein without any lawful justification and or right whatsoever claims 0.8Ha share of LR NO.NYARIBARICHACHE/B/B/BOBURIA/1064 which is measuring approximately 1.41 ha.
RESPONDENT’S SUBMISSIONS
8. The respondent submits that the application dated 16/8/2021 that seeks the certificate of confirmation of grant issued to the applicant herein be amended in regards to the sharing of NO NYARIBARI CHACHE/B/BOBURIA/1064. The respondent submits that he has opposed this application by way of replying affidavit and further replying affidavit. She further affirms that the application on the face of it does not satisfy any of the grounds as stipulated in section 74 of the law of succession act cap 160 and she opposes it for the following reasons;
a)the application filed was by the petitioner himself and not any of the aggrieved beneficiaries
b)the land in issue has been subdivided into various portions and some are registered in his name others in the names of other people including the respondent herein. The other persons have not been served or enjoined in these proceedings and it would be against the rules of natural justice to make any order that may be adverse to parties who are not parties enjoined and/or served in this proceedings
c)there is no evidence tendered in the proceedings that the respondent played a part in the subordinate of the estate.
9. The respondent asks for the application to be disallowed and the costs to be on the petitioner
Whether the certificate of confirmation of a grant can be amended
1. Section 74 of the Law of Succession Act provides that:
“Errors in names and descriptions, or in setting fourth 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.”
2. Rule 43 of the Probate and Administration Rules provide that:
(1)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 or place 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 Form 110 for such rectification through the registry and in the cause in which the grant was issued.
(2)Unless at the time of issue of the summons the registrar otherwise directs there shall be filed with the summons an affidavit in Form 13 by the applicant containing such information as is necessary to enable the court to deal with the matter.
(3)The summons, together with the affidavit (if any), shall without delay be laid by the registrar before the court which may either grant the application without the attendance of any person or direct that it be set down for hearing on notice to the applicant and to such other persons (if any) as the court shall think fit.
10. That notwithstanding, it is worth examining what errors can be rectified under Section 74 of the Act and Rule 43 of the Rules. Several courts have expressed themselves on the matter. In re Estate of Henry Mwithimbu Karigu (Deceased) (2020) eKLR, the court held:
“From the language of section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules, the scope of rectification of grants of representation is limited to errors in names and descriptions, or in setting forth the time and place of the deceased’s death, or the purpose in a limited grant. I may add that such other minor errors in that genre could also be rectified.”
In the estate of Geoffrey Kinuthia Nyamwinga (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 the 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…….”
Similarly, in re Estate of James Wainaina Ng’ang’a (Deceased) (2021) eKLR, the court held:-
“Rectification is allowed in order to correct a mis-description of a property or to correct a name which has not been fully or properly described in the Grant.………..Rectification of a Grant is only permissible to cure minor errors, mistakes and irregularities in the Grant. Rectification cannot be used to fundamentally alter the character of the Grant.”
3. The petitioner is seeking amendment of the certificate of confirmation to adopt a distribution of property that was initially indicated to be inherited by the applicant This is not an error and thus the application does not fall under Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules, which provide for what can be rectified as illustrated above. Regarding new distribution of property, it was expressed In re estate of Charles Kibe Karanja (Deceased) [2015] KEHC 2067 (KLR) that:
“If a party wishes to have the assets of the estate redistributed or there is discovery of new assets that were not available or had not been discovered at the time of distribution, among others; it would be imprudent to seek rectification or alteration or amendment of the certificate of confirmation of grant. Such changes are fundamental, not superficial. They go to the core of the distribution. They cannot be affected without touching the orders made by the Court at the distribution of the estate. Consequently, such changes cannot and should not be effected through a mere amendment of the certificate of confirmation of grant. The proper approach ought to be an application for review of the orders made at the confirmation of the grant. The remedy of review of Court orders is not directly provided for in the Law of Succession Act and the Probate and Administration Rules, but it is imported into probate practice by Rule 63 of Probate and Administration Rules, which has adopted a number of procedures from the Civil Procedure Rules…”
11. It is clear from the foregoing that redistribution can only be ordered in an application for review .
12. On the issue of the new titles emanating from land parcel no. NYARIBARI CHACHE/BB BOBURIA/1064 , this court confirmed the grant on 6.2.15 as proposed. It seems that there are issues with land parcel no. 1064 whose current ownership and occupation ought to be ascertained . The applicant says it has been subdivided at the instance of the respondent and resultant titles issued and he also wants it to be shared out amongst the beneficiaries . The respondent admits that the said land has been subdivided and other titles born out of the mother title . Also that some owner of the new titles have not been enjoined herein. It is trite law the Jurisdiction is everything and the court must pen down where it finds that it lacks the same as was held in the locus classicus decision of Nyarangi, J.A. in The Owners of Motor Vessel Lilian “S” v. Caltex Oil Kenya Ltd. ]1989] KLR. The issue of alleged fraudulent titles is for land court to determine under Article 162 (2) (b) of the Constitution. This court has no jurisdiction to determine land disputes by dint of Article 165 (2) (b)of the constitution. The parties to move the land court for determination of the dispute before they can move this court for review of the grant . The application is dismissed. Each party to bear his own costs .
T.A ODERA
JUDGE
29.7.25
Delivered Virtually Via Teams Platform on this 29th Day of July 2025 in the presence of Petitioner in person ,Mr Soire for respondent and CA Kipchirchir .
a. Daniel Makori Arasa 0.25 ha
b. Angelica Moraa Okongo 0.69 ha
c. Wilson Mongare Nyakoiro 0.5 ha
d. Jackson Ombaki Arasa. 0.51 ha
2. In his annexed supporting affidavit dated 16th August 2021, Jackson Ombaki, the applicant asserts that;
a) They have agreed to distribute the estate as shown in the annexed amended property schedule of the estate of the deceased marked as JOA-1.
b) At the time of the confirmation, he had indicated that the land parcel NYARIBARICHACHE/B/B/BOBURIA /1064 be transferred wholly to him. That the said parcel was to be shared among other beneficiaries of the estate of the deceased.
c) That the purpose of this affidavit is so that the court can amend the schedule in the certificate of confirmation of grant to the estate of the deceased issued on the 6th day of February so that it can be shared amongst all beneficiaries and adopt the distribution of the estate.
3. In her replying affidavit dated 24th November 2021, Anjerica Moraa Okongo, the respondent, opposes the application by stating that the applicant had lawfully and legally transferred a portion of the land from the said parcel to her. Which portion measures 0.8 hectares and is registered as NYARIBARI CHACHE/B/B/BOBURIA/14992. Title deed is annexed as AMO 1. She contended that the original land parcel 1064 has been so far divided and distributed to several other people including the purchasers who are not parties in this application, which can be seen from a photocopy of the letter from the applicant to the land registrar, annexed as AMO 2. She deponed that the petitioner has not availed any material to warrant amendment of the certificate of confirmation of the grant.
4. In the further supporting affidavit of Jackson Ombaki dated 7th February 2022, the applicant stated that;
1. When the surveyor carried out the exercise of surveying land parcel NO B/B/BOBURIA/1064, all beneficiaries were not present as required by the Survey Act.
2. The mutation of parcel NO B/B/BOBURIA/14992 registered in the name of ANJERICA MORAA has not been exhibited to demonstrate the size curved out from land NO B/B/BOBURIA/1064 and the remaining portion in actual measurements.
3. No official search in respect of land parcel NO B/B/BOBURIA/14992 has been attached to prove that it was officially registered in the Land Registry.
4. The respondent proceeded to commit an illegality by misrepresentation at the land Registry and proceeded to procure three [3] title deeds being NO B/B/BOBURIA/14992, 11407 and 16037 in my name. Attached herein are copies marked JOA1 [a-c].
5. It is unusual that the title deed issued to the respondent is purported to have been issued on the 8th day of September 2017 while the other two [2] in my name are issued on the 6th day of February 2018 and 19th June 2019
6. That the act of the respondent to collude with the surveyor and or workers at the land Registry to produce title deeds without the consent of the administrator or other beneficiaries has drastically changed the exact acreage of the whole land and what each beneficiary is entitled to .
7. That after conducting another survey on the land parcel of NO B/B/BOBURIA/1064 measuring approximately 2ha and not 1.4 Ha as originally indicated and reason why the amendment should be done.
8. That he has never appeared before any advocate for executing of transfer forms and therefore, the survey and procurement of title deeds was done fraudulently.
9. THAT as the legal administrator it is his wish that the land parcel comprising the estate being B/B/BOBURIA/1064 now measuring approximately 2ha should be shared equally among four [4] beneficiaries namely:
1] JACKSON OMBAKI ARASA,
2] DANIEL MAKORI ARASA,
3] ANJERICA MORAA OKONGO’O and
4] WILSON MONG’ARE NYAKOIRO [to hold in trust of his siblings] as it was done in the case of land parcel BOGUMBE/MABERA/454 measuring approximately 2ha where all the beneficiaries got equal share.
5. In the further replying affidavit of Anjerica Moraa dated 23rd May 2022, she contended that:
1. An inspection in the land registries in respect to land parcel number NYARIBARI CHACHE/BOBURIA 1064 was done and the findings were as follows:
a) THAT the Green Card for land parcel no. NYARIBARI CHACHE/BB BOBURIA/1064 is not available at the binder and efforts to trace the same in the office were not successful.
b) THAT the following land parcels which apparently are in the applicant’s names which appear to have been created out of subdivision and re sub-divisions from land parcel no. NYARIBARI CHACHE B,B/BOBURIA/11064 are in the Petitioner’s names which are:
NYARIBARI CHACHE B,B/BOBURIA/11407,11408,11409,14991, 14993,14997 and 16037.
c) THAT there is also land parcel no. NYARIBARI CHACHE BB/BOBURIA 14999 in the name of GRACE MORAA MASENO which also was created out of the mother title NYARIBARI CHACHE B.B/BOBURIA/1064 or a resultant number therefrom.
d) THAT there is also a land parcel no. NYARIBARI CHACHE BB/BOBURIA/14992 which is in his name which was/is my entitlement from the estate of the deceased.
2. The respondent further states that since the petitioner is the person who was the Centre of the various sub-divisions of the mother title NYARIBARI CHACHE B,B/BOBURIA/1064 and other resultant parcels and since some of the records thereof are missing in the lands office the Petitioner is better placed to tabulate before this Honorable Court all the sub-divisions and the transfers if any he has made to any persons.
6. In the replying affidavit of Jackson Ombaki dated 9th June 2022, the applicant asserts that
the title numbers NYARIBARICHACHE/B/B/BOBURIA/14992 and B/B/BOBURIA /14999 belonging to ANGERICA MORAA OKONG’O and Grace Moraa Maseno were fraudulently obtained and that he has attached all legal documents he obtained as the legal administrator of the estate. Lastly he submits that according to the last survey on the estate the land is measuring 2Ha and not 1.4 as previously indicated and therefore requests approval for the necessary change.
APPLICANT SUBMISSIONS
7. The applicant submits that the beneficiaries aforementioned participated and/or consented to the mode of distribution of the deceased’s estate including the respondent and that the respondent is the only person who is objecting. That it is not true that the petitioner caused subdivision and transfer of LR NO.NYARIBARI CHACHE/B/B/BOBURIA/1064 in favor of the respondent and GRACE MORAA MASENO as the registered proprietor of the purported LR NO.NYARIBARI CHACHE/B/B/BOBURIA/14992 and 14999. That the respondent herein without any lawful justification and or right whatsoever claims 0.8Ha share of LR NO.NYARIBARICHACHE/B/B/BOBURIA/1064 which is measuring approximately 1.41 ha.
RESPONDENT’S SUBMISSIONS
8. The respondent submits that the application dated 16/8/2021 that seeks the certificate of confirmation of grant issued to the applicant herein be amended in regards to the sharing of NO NYARIBARI CHACHE/B/BOBURIA/1064. The respondent submits that he has opposed this application by way of replying affidavit and further replying affidavit. She further affirms that the application on the face of it does not satisfy any of the grounds as stipulated in section 74 of the law of succession act cap 160 and she opposes it for the following reasons;
a)the application filed was by the petitioner himself and not any of the aggrieved beneficiaries
b)the land in issue has been subdivided into various portions and some are registered in his name others in the names of other people including the respondent herein. The other persons have not been served or enjoined in these proceedings and it would be against the rules of natural justice to make any order that may be adverse to parties who are not parties enjoined and/or served in this proceedings
c)there is no evidence tendered in the proceedings that the respondent played a part in the subordinate of the estate.
9. The respondent asks for the application to be disallowed and the costs to be on the petitioner
Whether the certificate of confirmation of a grant can be amended
1. Section 74 of the Law of Succession Act provides that:
“Errors in names and descriptions, or in setting fourth 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.”
2. Rule 43 of the Probate and Administration Rules provide that:
(1)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 or place 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 Form 110 for such rectification through the registry and in the cause in which the grant was issued.
(2)Unless at the time of issue of the summons the registrar otherwise directs there shall be filed with the summons an affidavit in Form 13 by the applicant containing such information as is necessary to enable the court to deal with the matter.
(3)The summons, together with the affidavit (if any), shall without delay be laid by the registrar before the court which may either grant the application without the attendance of any person or direct that it be set down for hearing on notice to the applicant and to such other persons (if any) as the court shall think fit.
10. That notwithstanding, it is worth examining what errors can be rectified under Section 74 of the Act and Rule 43 of the Rules. Several courts have expressed themselves on the matter. In re Estate of Henry Mwithimbu Karigu (Deceased) (2020) eKLR, the court held:
“From the language of section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules, the scope of rectification of grants of representation is limited to errors in names and descriptions, or in setting forth the time and place of the deceased’s death, or the purpose in a limited grant. I may add that such other minor errors in that genre could also be rectified.”
In the estate of Geoffrey Kinuthia Nyamwinga (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 the 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…….”
Similarly, in re Estate of James Wainaina Ng’ang’a (Deceased) (2021) eKLR, the court held:-
“Rectification is allowed in order to correct a mis-description of a property or to correct a name which has not been fully or properly described in the Grant.………..Rectification of a Grant is only permissible to cure minor errors, mistakes and irregularities in the Grant. Rectification cannot be used to fundamentally alter the character of the Grant.”
3. The petitioner is seeking amendment of the certificate of confirmation to adopt a distribution of property that was initially indicated to be inherited by the applicant This is not an error and thus the application does not fall under Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules, which provide for what can be rectified as illustrated above. Regarding new distribution of property, it was expressed In re estate of Charles Kibe Karanja (Deceased) [2015] KEHC 2067 (KLR) that:
“If a party wishes to have the assets of the estate redistributed or there is discovery of new assets that were not available or had not been discovered at the time of distribution, among others; it would be imprudent to seek rectification or alteration or amendment of the certificate of confirmation of grant. Such changes are fundamental, not superficial. They go to the core of the distribution. They cannot be affected without touching the orders made by the Court at the distribution of the estate. Consequently, such changes cannot and should not be effected through a mere amendment of the certificate of confirmation of grant. The proper approach ought to be an application for review of the orders made at the confirmation of the grant. The remedy of review of Court orders is not directly provided for in the Law of Succession Act and the Probate and Administration Rules, but it is imported into probate practice by Rule 63 of Probate and Administration Rules, which has adopted a number of procedures from the Civil Procedure Rules…”
11. It is clear from the foregoing that redistribution can only be ordered in an application for review .
12. On the issue of the new titles emanating from land parcel no. NYARIBARI CHACHE/BB BOBURIA/1064 , this court confirmed the grant on 6.2.15 as proposed. It seems that there are issues with land parcel no. 1064 whose current ownership and occupation ought to be ascertained . The applicant says it has been subdivided at the instance of the respondent and resultant titles issued and he also wants it to be shared out amongst the beneficiaries . The respondent admits that the said land has been subdivided and other titles born out of the mother title . Also that some owner of the new titles have not been enjoined herein. It is trite law the Jurisdiction is everything and the court must pen down where it finds that it lacks the same as was held in the locus classicus decision of Nyarangi, J.A. in The Owners of Motor Vessel Lilian “S” v. Caltex Oil Kenya Ltd. ]1989] KLR. The issue of alleged fraudulent titles is for land court to determine under Article 162 (2) (b) of the Constitution. This court has no jurisdiction to determine land disputes by dint of Article 165 (2) (b)of the constitution. The parties to move the land court for determination of the dispute before they can move this court for review of the grant . The application is dismissed. Each party to bear his own costs .
T.A ODERA
JUDGE
29.7.25
Delivered Virtually Via Teams Platform on this 29th Day of July 2025 in the presence of Petitioner in person ,Mr Soire for respondent and CA Kipchirchir .