Background Information
1. This matter relates to the estate of Thomas Ratemo Oira who died intestate on 4.3.2021. A Petition for grant of letters of administration was issued on 7.9.2021 jointly to Eunita Kerubo Ratemo(Widow) and Japheth Amenya Ratemo(son).
2. The Administrators proceeded and filed a summons for confirmation of Grant dated 13.2.2023. This court confirmed the grant and issued a certificate for confirmation of grant dated 28.9.2023 and rectified in a ruling dated 9.5.2024 where all properties were held by the widow Eunita Kerubo Ratemo in trust for the children of the deceased.
3. Subsequently the applicants have filed this instant application dated 31.3.2026.
The application
4. Before this court for determination is an application dated 31 st March,2026 filed by Eunita Kerubo Ratemo, Japheth Amenya Ratemo, Naomi Kemunto Ratemo, Dolly Nyamisa Ratemo and Margaret Hilda Ratemo, the 1 st and 2 nd Applicants being co-administrators of the estate of the deceased.
5. The application is filed pursuant under Rule 3 of the Vacation Rules, Section 10 of the Judicature Act, Sections 47, 71, 74, 79, 82 and 83 of the Law of Succession Act, Rules 49, 63 and 73 of the Probate and Administration Rules, Sections 24, 25, 79 and 80 of the Land Registration Act, Article 159 of the Constitution and all other enabling provisions of the law.
6. In the application the Applicants seek an orders;
i. THAT this Honourable Court be pleased to grant leave for this Matter to be heard during the Easter recess. (Spent)
ii. THAT this Honourable Court be pleased to certify this Matter as urgent and be heard ex parte in the 1 st instance. (Spent)
iii. THAT this Honourable Court be pleased to make an order that the Certificate of Confirmation of Grant issued pursuant to the Judgment dated 28th September, 2023 be rectified to include the surviving spouse as a beneficiary of the Estate.
iv. THAT this Honourable Court be pleased to record and adopt the surviving spouse's voluntary waiver of life interest under Section 35 of the Law of Succession Act, and proceed to distribute the Estate.
v. THAT this Honourable Court be pleased to make an order that the Grant be confirmed, as rectified, in accordance with the agreed mode of distribution among the Beneficiaries.
vi. THAT this Honourable Court be pleased to make an order that the developed portion on the Parcel referred to as NAKURU/MITIMINGI/181 measuring approximately 5 acres upon which the permanent homestead stands be allocated to JAPHETH AMENYA RATEMO.
vii. THAT this Honourable Court be pleased to recognize and give effect to the Beneficiaries' agreement awarding JAPHETH AMENYA RATEMO additional acreage in appreciation of his role in defending and preserving the Estate in Environment and Land Court Case No. 38 of 2012.
viii. THAT an order be issued directing the County Land Registrar in Kisii to effect the necessary transmissions, cancellations and registration in the Land Register so as to register the Beneficiaries, including the surviving spouse, as absolute proprietors in accordance with the Rectified Grant.
ix. THAT the County Land Registrar, Kisii be directed to cancel any entries inconsistent with the confirmed Grant and issue titles to the Beneficiaries in accordance with the Orders of this Honourable Court.
x. THAT this Honourable Court be pleased to dismiss the objection raised by the Objector/Respondent herein.
xi. THAT in the alternative and without prejudice to the foregoing prayers, this Honourable Court be pleased to direct that the limited issue concerning the developed portion of the parcel referred to as NAKURU/MITIMINGI/181 be determined by way of viva voce evidence under Rule 41(3) of the Probate and Administration Rules in Open Court.
xii. THAT this Honourable Court be pleased to take cognizance of the existing guardianship order and the attendant obligation to file an inventory of the ward's assets within six (6) months in determining this Application.
xiii. Costs.
7. The application is premised on the grounds that the confirmed grant erroneously omitted the surviving spouse as a beneficiary; the grant has already been implemented, thereby entrenching the error; the surviving spouse has voluntarily waived her life interest to facilitate immediate distribution; the majority of the beneficiaries have agreed on the proposed mode of distribution while only the Respondent opposes.
8. That the 2 nd Applicant successfully defended the estate in previous Environment and Land Court proceedings, thereby preserving its principal asset and, in recognition of his efforts, the beneficiaries agreed to allocate him additional acreage from their respective shares; the continued trusteeship and delay in rectifying the grant prejudice the beneficiaries, including one who is differently abled and whose guardians are required to account for his assets; and that the Court has jurisdiction under the Law of Succession Act and the Probate and Administration Rules to rectify the grant and bring the administration of the estate to a just and final conclusion.
9. The application is supported by an affidavit of Eunita Kerubo Ratemo sworn on even date who briefly states that the confirmed grant erroneously excluded her as a beneficiary, that she has voluntarily waived her life interest to facilitate distribution of the estate, and that the majority of the beneficiaries have agreed on the proposed mode of distribution. She further deposes that the 2 nd Applicant preserved the estate by successfully defending the principal estate property in previous litigation and developed the homestead on Parcel No. NAKURU/MITIMINGI/181 at considerable personal expense with the knowledge of the family. The Applicants contend that only the Respondent opposes the agreed distribution and urge the Court to rectify the grant and bring the administration of the estate to a final conclusion.
10. In response to the application, the respondent Lena Bosibori Ratemo opposed the application through a ground of opposition dated 12 th March,2026 opposing the application on the following grounds that:
i. The application is biased against the daughters of the deceased and seeks orders that are discriminatory and contrary to justice.
ii. The purpose of succession proceedings is to ensure the lawful and equitable distribution of the deceased's estate among all beneficiaries.
iii. The proposed mode of distribution unlawfully discriminates against the daughters of the deceased contrary to the Law of Succession Act, the Constitution of Kenya, and international human rights principles guaranteeing equality and non-discrimination.
iv. The administrators are seeking to transfer the deceased's land without the consent of all beneficiaries or a court-adopted consent on the mode of distribution. Such transfers would be unlawful under the Land Registration Act and Article 40(6) of the Constitution.
v. Any variation of the confirmed mode of distribution requires the consent of all beneficiaries or, where there is no consensus, determination by the court in accordance with the Law of Succession Act.
vi. The objector contends that there is no agreement among the beneficiaries regarding the proposed distribution, and therefore the court should apply the law to ensure equal distribution without discrimination.
vii. The daughters of the deceased stand to suffer irreparable prejudice if the application is allowed, particularly because the Applicant has separately sought authority in the Environment and Land Court to dispose of land held in trust.
viii. The deceased died intestate after the commencement of the Law of Succession Act, leaving a widow, one son and four daughters, all of whom are entitled to equal inheritance regardless of gender or marital status.
ix. The objector concludes that the application is misconceived, an abuse of the court process, and does not demonstrate any prejudice to the Applicant or the estate that would justify the orders sought.
Evidence
11. By consent of the parties, the application was canvassed by way of viva voce evidence. The matter proceeded to full hearing in open court.
Objector’s case
12. The objector Lena Ratemo testified that she is first born daughter of deceased. She testified that there is no agreed mode of distribution and the wife to deceased has unequal mode while her mode is equal distribution.
13. The objector testified that she filed an objection to the making of grant. The objector testified that Eunita said she would waive her right to life interest. She testified further that there is no consent on distribution and she did not sign the consent on the mode of distribution. She testified that the court has then to decide and her father did not leave a valid Will.
14. The objector further testified that the court should rely on her affidavit of protest, replying affidavit and grounds of opposition dated 2.6.2026. The objector testified that her mother was to take up life interest and the wife was left out as a beneficiary. She testified that the wife was desirous of waiving her life interest on condition that some of the properties be left to her absolutely.
15. The objector testified that the Deceased was an officer of this court and left ELC Case No.38 0f 2012 at Nakuru. She was appointed her as legal representative.
16. During cross examination the objector confirmed that she is aware of the ruling of the Environment and Land Court by Justice Ohunyo dated 13.5.2021. She confirmed further she is aware deceased was buried at his farm Nakuru/ NAKURU/MITIMINGI/181. There was a homestead. She confirmed that that she is not aware of the bundles of receipts served upon her since she is not aware of the claim.
17. The objector stated that discrimination of girls is unfair treatment and confirmed that the lady in court is their mother. She confirmed that he deceased left an active ElC matter and they sat as a family and he obtained grant ad litem to defend the suit. She confirmed that Mr. Ratemo defended the suit and she is aware there are costs implication in the suit.
18. The objector confirmed that the suit land was over Kshs.200,000 million in value. She confirmed that if her sisters want 5 acres from their share it should be after distribution. She confirmed they can transfer after they receive or inherit.
19. The objector confirmed that the deceased was buried on land parcel Number 181 and Mr. Ratemo put up a house there using their father’s funds.
Applicant’s case
20. Eunita Kerubo Ratemo during examination in chief testified that she is the mother of the children in court. She testified that she acquired land with the deceased. She testified that the deceased was buried at a bush. They put up a small house so that the people could not be rained on during burial. She testified that her son put up a house there so that he is present at the burial place. She testified that Mr. Ratemo pursued the case and she want to appreciate him. She testified that she wants each child to get her share and she get her share too. She testified that she is aged, sick and on medication.
21. During cross examination she confirmed that she married the deceased when he had nothing. She confirmed that Justice Riechi omitted her but she would have distributed the estate.
22. Margaret Hilda Ratemo testified that she is the last born in the family. She testified that her view is that her parents had organized many meetings on distribution and they agreed. She testified that their mother has agreed to give them something and she is in support of the application filed by her brother.
23. She testified that where their father was buried there was no home and it was on plot 181. She stated that she would have received 16 acres and she agreed on her own free will to give her brother four acres to appreciate what he did to the estate. There was a consent prepared by his brother. She testified further that her sister had not disputed for him to built a house on the land.
24. During cross examination she confirmed that the judge told them to come up with a consent and there was no consent.
25. Naomi Kemunto Ratemo during examination in chief testified that she has agreed to donate four acres. She testified that her mother was left out and she should get a share since she has a right to inherit. She testified further that she has never seen any discrimination either by culture or by her mum for being a girl child. She testified they had several meetings on distribution and they had agreed on equal distribution of the properties in Kisii.
26. She testified that on Nakuru property, herself, Margaret,Dolly and mum they realized the resources and effort of their brother used to fight over land in Nakuru which was in court. She testified they could not compensate him financially and agreed to give him land. She testified that her sister was not for it.
27. She testified further that each one was to get four acres and there was no discrimination. She testified that her sister would get 16 acres and the rest of the family members donated 4 acres to their brother. She testified that when her father died it was during covid and they wanted to bury him on the parcel which is 100 acres. She testified that there was no dispute and they agreed to put a mabati house on land parcel 181 and that is where he was buried. She testified that they agreed to have a permanent house and they agreed that their brother would put up the house and he did everything. She testified that she did not personally contribute. She testified they agreed he will get the portion where he put up the house on land parcel 181.
28. During cross examination she confirmed that the mode of distribution before Justice Riechi was not there because Lena did not sign.
Issues for Determination
29. I have considered the application, the affidavit in support, the grounds of opposition, the evidence adduced by the parties and the circumstances of the estate. The issues for determination are, in my view, as follows:
i. Whether the Certificate of Confirmation of Grant ought to be rectified to include the surviving spouse as a beneficiary;
ii. Whether the surviving spouse's waiver of her life interest ought to be recorded and adopted;
iii. Whether the Court should adopt the alleged agreement on the mode of distribution and the proposed allocation to Japheth;
iv. Whether the consequential orders sought against the County Land Registrar should issue; and
v. Who should bear the costs of the application.
Analysis and Determination
30. The deceased died intestate. The estate must therefore be administered and distributed in accordance with the Law of Succession Act. The Court's primary obligation is to ensure that the estate devolves upon the persons entitled to it and that the interests of all beneficiaries are safeguarded.
31. From the record, the widow, Eunita Kerubo Ratemo, was one of the persons to whom the Grant of Letters of Administration was issued. The subsequent Certificate of Confirmation of Grant, however, provided for the properties to be held by her in trust for the children. The present application seeks to rectify the grant and have her recognized as a beneficiary and to have her life interest waived among other prayers. The applicants are also seeking to rectify the mode of distribution so as to Japheth is allocated 5 acres of Nakuru/Mitimingi/181 measuring approximately 5 acres among other prayers of rectification.
32. on issue of rectification Section 74 of the Law of Succession Act provides for rectification of errors in names and descriptions, or in setting out the time and place of the deceased's death, or the purpose of a limited grant. The jurisdiction is therefore not a general power to reopen and redesign the substantive distribution of an estate.
33. Rectification of grant is provided for in Section 74 of the Law of Succession Act, Cap 160 Laws of Kenya and Rule 43(1) of the Probate & Administration Rules. Section 74 provides as follows:-
“ 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 may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.”
34. Rule 43(1) of Probate and Administration Rules provides: -
“Where the holder of the 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 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 made.”
35. Thus, rectification of grant of letters of administration is limited to matters set out in section 74 of the Law of Succession Act. These matters specifically refer to corrections of errors which the court may order without changing the substance of the grant. These include 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 envisaged under the section is a mistake which may occur on the face of the grant like typing errors in names of persons or things.
36. The issue of rectification of grant has been addressed in various decisions in the High Court which I have considered here as persuasive authorities. In the matter of the Estate of Hasalon Mwangi Kahero [2013] eKLR
“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.”
37. Similarly In the Matter of the Estate of Geoffrey Kinuthia Nyamwinga (Deceased) [2013] eKLR:-
“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 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…. 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.”
38. Relying on the above provisions of law, the prayer for rectification must be considered within the confines of the law governing rectification of grants. Rectification cannot properly be employed as a means of introducing an entirely new mode of distribution where the effect would be to substantively alter the rights of beneficiaries already determined upon confirmation.
39. In the present case, the Applicants are not merely asking the Court to correct a typographical or descriptive error. They seek to introduce the surviving spouse as a beneficiary, adopt a waiver of life interest and, more significantly, introduce a new substantive mode of distribution which includes the allocation of approximately five acres of NAKURU/MITIMINGI/181 to Japheth and additional acreage allegedly donated to him by other beneficiaries.
40. In my view, the latter prayers go beyond the permissible scope of rectification under Section 74 of the Law of Succession Act(Supra). The Applicants' proposal concerning NAKURU/MITIMINGI/181 goes beyond a mere correction of an accidental or clerical omission. It seeks a substantive alteration of the mode of distribution by carving out approximately five acres for Japheth and further recognizing an alleged arrangement by which other beneficiaries would surrender portions of their respective shares to him.
41. I therefore find that the prayer for rectification cannot be granted to the extent that it seeks to introduce a new substantive mode of distribution.
42. On the question of distribution, the deceased was survived by a spouse and children, including daughters. The law does not discriminate between male and female children in matters of intestate succession. Section 38 of the Law of Succession Act, although expressly applicable where there is no surviving spouse, embodies the principle that children are to inherit without discrimination based on gender.
43. In M’Murithi v Murithi [2015] KECA 347 (KLR) , the Court of Appeal held that Section 38 enshrines equal distribution of the net intestate estate amongst surviving children irrespective of gender and whether they are married or unmarried. The Court specifically found that discrimination against married daughters in distribution of an estate was contrary to Section 38 of the Law of Succession Act.
44. The same principle was affirmed in Rono versus Rono & another [2008] 1KLR (G&F) 803 which remains an important authority against discrimination of daughters in succession matters. The courts have consistently held that daughters cannot be excluded from their deceased parent's estate merely because they are female or married.
45. In the circumstances of this case, the Respondent's objection that the proposed distribution should not discriminate against the daughters is therefore well founded in law.
46. The evidence before the Court does not establish a binding agreement amongst all the beneficiaries. The Respondent expressly denied consenting to the proposed mode of distribution. Indeed, she testified that she did not sign the consent and maintained that there was no agreement on distribution.
47. The evidence of Margaret and Naomi establishes that they were individually willing to surrender portions of their respective shares to Japheth. That evidence, however, does not establish the consent of all the beneficiaries. Margaret herself confirmed during cross-examination that there was no consent after the parties had been directed to come up with one.
48. The Court therefore finds that there was no consensus among all the beneficiaries on the proposed mode of distribution. A proposal supported by some beneficiaries cannot, in the absence of the consent of the affected beneficiaries or a lawful determination by the Court, be treated as an agreed mode of distribution.
49. I have also considered the evidence concerning Japheth's role in defending the estate in ELC Case No. 38 of 2012. The Respondent acknowledged that the suit had to be defended and that Japheth participated in defending the estate.
50. The Court appreciates the efforts made by Japheth in preserving the estate. However, such contribution does not, without more, confer upon him a proprietary entitlement to a particular portion of the estate. An administrator or beneficiary cannot appropriate estate property merely on the basis that he or she has incurred expenses or rendered services in relation to the estate.
51. Indeed, his contention that he went ahead and constructed a house on this property before the confirmation of grant and before the property was distributed to him amounts to intermeddling with the estate of the deceased which is outlawed under section 45 of the Law of Succession Act and cannot be heard to urge the court condone an unlawful act.
52. The Court is also guided by the principle that a personal representative holds estate property for purposes of administration and distribution and not for personal benefit. The fact that Japheth constructed a house on NAKURU/MITIMINGI/181 is similarly not, by itself, sufficient to vest the underlying land in him. The Respondent acknowledged the existence of the house and that Japheth had constructed it. However, the ownership of estate property must be determined within the succession proceedings and in accordance with the lawful interests of all beneficiaries.
53. The proposed allocation of approximately five acres to Japheth would, in effect, alter the beneficial interests of the other beneficiaries. Such an alteration cannot properly be achieved through a mere application for rectification.
54. On the surviving spouse's waiver of life interest, the Court takes note of the evidence that Eunita Kerubo Ratemo is willing to waive her life interest. The waiver is a matter that may be taken into account in determining the final mode of distribution. However, the waiver cannot confer upon the other beneficiaries a right to distribute the estate in a manner contrary to the law.
55. Further, the Court cannot adopt a purported agreement as an "agreed mode of distribution" when one of the beneficiaries expressly disputes having consented to it. The Court's duty is to ensure that the estate is distributed according to the law and that no beneficiary is deprived of his or her lawful share.
56. The prayer seeking orders against the County Land Registrar must consequently fail. The Land Registrar can only effect transmission and registration pursuant to a lawful and enforceable order or confirmed Grant. Since the proposed mode of distribution has not been established as a lawful agreed mode, the consequential orders sought cannot issue.
57. As regards the alternative prayer under Rule 41(3) of the Probate and Administration Rules, the issue concerning the developed portion of NAKURU/MITIMINGI/181 has already been canvassed through viva voce evidence by consent of the parties. The Court has considered that evidence and there is therefore no basis for directing a further hearing of the same issue.
58. In reaching this conclusion, the Court is mindful that the overriding objective in succession proceedings is not merely to bring the administration of an estate to an end but to do so in a manner that protects the lawful interests of all beneficiaries. The Court cannot approve a distribution merely because it is supported by a majority of beneficiaries where another beneficiary's lawful interest is thereby affected. The court is under a duty to satisfy itself as to respective identities and all shares of the person’s beneficiary entitled; and when confirmed grant shall specify all such persons and their respective shares. See proviso section 71 of the Law of Succession Act.
59. In the circumstances, I find that the Applicants have not established a sufficient legal basis for the substantive rectification of the confirmed mode of distribution sought in the application.
Disposition
60. In the result, the Notice of Motion dated 31 st March 2026 is determined as follows:
a. The prayers for leave to have the matter heard during the Easter recess and certification of the matter as urgent are spent.
b. The prayer to rectify the Certificate of Confirmation of Grant to introduce the proposed substantive mode of distribution is declined.
c. The Court takes cognizance of the stated voluntary waiver by Eunita Kerubo Ratemo of her life interest. The consequence is that the Certificate of Confirmation of grant is incapable of taking effect and is amenable to revocation.
d. The prayer to allocate approximately five (5) acres of NAKURU/MITIMINGI/181 upon which the permanent homestead stands to JAPHETH AMENYA RATEMO is declined in the absence of a consent by all the beneficiaries.
e. The prayer seeking recognition and enforcement of the alleged agreement awarding Japheth Amenya Ratemo additional acreage is declined, there being no demonstrated agreement binding upon all the beneficiaries.
f. The consequential prayers directed at the County Land Registrar, Kisii, are declined.
g. The prayer for determination of the issue concerning NAKURU/MITINGI/181 by Viva Voce evidence under Rule 41(3) is spent, the issue having already been canvassed by way of Viva Voce evidence. The objection by the Respondent is allowed to the extent stated in this Ruling.
h. Section 47 of the Law of Succession Act gives the court jurisdiction to determine any dispute under that Act and pronounce such decrees and make such orders therein as may be expedient. On the other hand section 76 of the Law of Succession Act gives this court jurisdiction to either on application by a party or on its motion to revoke or annul a grant where inter-alia the grant has become useless and inoperative through subsequent circumstances. Following the voluntary waiver by Eunita Kerubo Ratemo of her life interest and the clamour by objector that the estate be distributed equally, the mode of distribution as per the certificate of confirmation of grant cannot stand. The certificate of confirmation of grant is revoked to facilitate distribution of the estate to the beneficiaries including the widow who is a beneficiary under t
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1. This matter relates to the estate of Thomas Ratemo Oira who died intestate on 4.3.2021. A Petition for grant of letters of administration was issued on 7.9.2021 jointly to Eunita Kerubo Ratemo(Widow) and Japheth Amenya Ratemo(son).
2. The Administrators proceeded and filed a summons for confirmation of Grant dated 13.2.2023. This court confirmed the grant and issued a certificate for confirmation of grant dated 28.9.2023 and rectified in a ruling dated 9.5.2024 where all properties were held by the widow Eunita Kerubo Ratemo in trust for the children of the deceased.
3. Subsequently the applicants have filed this instant application dated 31.3.2026.
The application
4. Before this court for determination is an application dated 31 st March,2026 filed by Eunita Kerubo Ratemo, Japheth Amenya Ratemo, Naomi Kemunto Ratemo, Dolly Nyamisa Ratemo and Margaret Hilda Ratemo, the 1 st and 2 nd Applicants being co-administrators of the estate of the deceased.
5. The application is filed pursuant under Rule 3 of the Vacation Rules, Section 10 of the Judicature Act, Sections 47, 71, 74, 79, 82 and 83 of the Law of Succession Act, Rules 49, 63 and 73 of the Probate and Administration Rules, Sections 24, 25, 79 and 80 of the Land Registration Act, Article 159 of the Constitution and all other enabling provisions of the law.
6. In the application the Applicants seek an orders;
i. THAT this Honourable Court be pleased to grant leave for this Matter to be heard during the Easter recess. (Spent)
ii. THAT this Honourable Court be pleased to certify this Matter as urgent and be heard ex parte in the 1 st instance. (Spent)
iii. THAT this Honourable Court be pleased to make an order that the Certificate of Confirmation of Grant issued pursuant to the Judgment dated 28th September, 2023 be rectified to include the surviving spouse as a beneficiary of the Estate.
iv. THAT this Honourable Court be pleased to record and adopt the surviving spouse's voluntary waiver of life interest under Section 35 of the Law of Succession Act, and proceed to distribute the Estate.
v. THAT this Honourable Court be pleased to make an order that the Grant be confirmed, as rectified, in accordance with the agreed mode of distribution among the Beneficiaries.
vi. THAT this Honourable Court be pleased to make an order that the developed portion on the Parcel referred to as NAKURU/MITIMINGI/181 measuring approximately 5 acres upon which the permanent homestead stands be allocated to JAPHETH AMENYA RATEMO.
vii. THAT this Honourable Court be pleased to recognize and give effect to the Beneficiaries' agreement awarding JAPHETH AMENYA RATEMO additional acreage in appreciation of his role in defending and preserving the Estate in Environment and Land Court Case No. 38 of 2012.
viii. THAT an order be issued directing the County Land Registrar in Kisii to effect the necessary transmissions, cancellations and registration in the Land Register so as to register the Beneficiaries, including the surviving spouse, as absolute proprietors in accordance with the Rectified Grant.
ix. THAT the County Land Registrar, Kisii be directed to cancel any entries inconsistent with the confirmed Grant and issue titles to the Beneficiaries in accordance with the Orders of this Honourable Court.
x. THAT this Honourable Court be pleased to dismiss the objection raised by the Objector/Respondent herein.
xi. THAT in the alternative and without prejudice to the foregoing prayers, this Honourable Court be pleased to direct that the limited issue concerning the developed portion of the parcel referred to as NAKURU/MITIMINGI/181 be determined by way of viva voce evidence under Rule 41(3) of the Probate and Administration Rules in Open Court.
xii. THAT this Honourable Court be pleased to take cognizance of the existing guardianship order and the attendant obligation to file an inventory of the ward's assets within six (6) months in determining this Application.
xiii. Costs.
7. The application is premised on the grounds that the confirmed grant erroneously omitted the surviving spouse as a beneficiary; the grant has already been implemented, thereby entrenching the error; the surviving spouse has voluntarily waived her life interest to facilitate immediate distribution; the majority of the beneficiaries have agreed on the proposed mode of distribution while only the Respondent opposes.
8. That the 2 nd Applicant successfully defended the estate in previous Environment and Land Court proceedings, thereby preserving its principal asset and, in recognition of his efforts, the beneficiaries agreed to allocate him additional acreage from their respective shares; the continued trusteeship and delay in rectifying the grant prejudice the beneficiaries, including one who is differently abled and whose guardians are required to account for his assets; and that the Court has jurisdiction under the Law of Succession Act and the Probate and Administration Rules to rectify the grant and bring the administration of the estate to a just and final conclusion.
9. The application is supported by an affidavit of Eunita Kerubo Ratemo sworn on even date who briefly states that the confirmed grant erroneously excluded her as a beneficiary, that she has voluntarily waived her life interest to facilitate distribution of the estate, and that the majority of the beneficiaries have agreed on the proposed mode of distribution. She further deposes that the 2 nd Applicant preserved the estate by successfully defending the principal estate property in previous litigation and developed the homestead on Parcel No. NAKURU/MITIMINGI/181 at considerable personal expense with the knowledge of the family. The Applicants contend that only the Respondent opposes the agreed distribution and urge the Court to rectify the grant and bring the administration of the estate to a final conclusion.
10. In response to the application, the respondent Lena Bosibori Ratemo opposed the application through a ground of opposition dated 12 th March,2026 opposing the application on the following grounds that:
i. The application is biased against the daughters of the deceased and seeks orders that are discriminatory and contrary to justice.
ii. The purpose of succession proceedings is to ensure the lawful and equitable distribution of the deceased's estate among all beneficiaries.
iii. The proposed mode of distribution unlawfully discriminates against the daughters of the deceased contrary to the Law of Succession Act, the Constitution of Kenya, and international human rights principles guaranteeing equality and non-discrimination.
iv. The administrators are seeking to transfer the deceased's land without the consent of all beneficiaries or a court-adopted consent on the mode of distribution. Such transfers would be unlawful under the Land Registration Act and Article 40(6) of the Constitution.
v. Any variation of the confirmed mode of distribution requires the consent of all beneficiaries or, where there is no consensus, determination by the court in accordance with the Law of Succession Act.
vi. The objector contends that there is no agreement among the beneficiaries regarding the proposed distribution, and therefore the court should apply the law to ensure equal distribution without discrimination.
vii. The daughters of the deceased stand to suffer irreparable prejudice if the application is allowed, particularly because the Applicant has separately sought authority in the Environment and Land Court to dispose of land held in trust.
viii. The deceased died intestate after the commencement of the Law of Succession Act, leaving a widow, one son and four daughters, all of whom are entitled to equal inheritance regardless of gender or marital status.
ix. The objector concludes that the application is misconceived, an abuse of the court process, and does not demonstrate any prejudice to the Applicant or the estate that would justify the orders sought.
Evidence
11. By consent of the parties, the application was canvassed by way of viva voce evidence. The matter proceeded to full hearing in open court.
Objector’s case
12. The objector Lena Ratemo testified that she is first born daughter of deceased. She testified that there is no agreed mode of distribution and the wife to deceased has unequal mode while her mode is equal distribution.
13. The objector testified that she filed an objection to the making of grant. The objector testified that Eunita said she would waive her right to life interest. She testified further that there is no consent on distribution and she did not sign the consent on the mode of distribution. She testified that the court has then to decide and her father did not leave a valid Will.
14. The objector further testified that the court should rely on her affidavit of protest, replying affidavit and grounds of opposition dated 2.6.2026. The objector testified that her mother was to take up life interest and the wife was left out as a beneficiary. She testified that the wife was desirous of waiving her life interest on condition that some of the properties be left to her absolutely.
15. The objector testified that the Deceased was an officer of this court and left ELC Case No.38 0f 2012 at Nakuru. She was appointed her as legal representative.
16. During cross examination the objector confirmed that she is aware of the ruling of the Environment and Land Court by Justice Ohunyo dated 13.5.2021. She confirmed further she is aware deceased was buried at his farm Nakuru/ NAKURU/MITIMINGI/181. There was a homestead. She confirmed that that she is not aware of the bundles of receipts served upon her since she is not aware of the claim.
17. The objector stated that discrimination of girls is unfair treatment and confirmed that the lady in court is their mother. She confirmed that he deceased left an active ElC matter and they sat as a family and he obtained grant ad litem to defend the suit. She confirmed that Mr. Ratemo defended the suit and she is aware there are costs implication in the suit.
18. The objector confirmed that the suit land was over Kshs.200,000 million in value. She confirmed that if her sisters want 5 acres from their share it should be after distribution. She confirmed they can transfer after they receive or inherit.
19. The objector confirmed that the deceased was buried on land parcel Number 181 and Mr. Ratemo put up a house there using their father’s funds.
Applicant’s case
20. Eunita Kerubo Ratemo during examination in chief testified that she is the mother of the children in court. She testified that she acquired land with the deceased. She testified that the deceased was buried at a bush. They put up a small house so that the people could not be rained on during burial. She testified that her son put up a house there so that he is present at the burial place. She testified that Mr. Ratemo pursued the case and she want to appreciate him. She testified that she wants each child to get her share and she get her share too. She testified that she is aged, sick and on medication.
21. During cross examination she confirmed that she married the deceased when he had nothing. She confirmed that Justice Riechi omitted her but she would have distributed the estate.
22. Margaret Hilda Ratemo testified that she is the last born in the family. She testified that her view is that her parents had organized many meetings on distribution and they agreed. She testified that their mother has agreed to give them something and she is in support of the application filed by her brother.
23. She testified that where their father was buried there was no home and it was on plot 181. She stated that she would have received 16 acres and she agreed on her own free will to give her brother four acres to appreciate what he did to the estate. There was a consent prepared by his brother. She testified further that her sister had not disputed for him to built a house on the land.
24. During cross examination she confirmed that the judge told them to come up with a consent and there was no consent.
25. Naomi Kemunto Ratemo during examination in chief testified that she has agreed to donate four acres. She testified that her mother was left out and she should get a share since she has a right to inherit. She testified further that she has never seen any discrimination either by culture or by her mum for being a girl child. She testified they had several meetings on distribution and they had agreed on equal distribution of the properties in Kisii.
26. She testified that on Nakuru property, herself, Margaret,Dolly and mum they realized the resources and effort of their brother used to fight over land in Nakuru which was in court. She testified they could not compensate him financially and agreed to give him land. She testified that her sister was not for it.
27. She testified further that each one was to get four acres and there was no discrimination. She testified that her sister would get 16 acres and the rest of the family members donated 4 acres to their brother. She testified that when her father died it was during covid and they wanted to bury him on the parcel which is 100 acres. She testified that there was no dispute and they agreed to put a mabati house on land parcel 181 and that is where he was buried. She testified that they agreed to have a permanent house and they agreed that their brother would put up the house and he did everything. She testified that she did not personally contribute. She testified they agreed he will get the portion where he put up the house on land parcel 181.
28. During cross examination she confirmed that the mode of distribution before Justice Riechi was not there because Lena did not sign.
Issues for Determination
29. I have considered the application, the affidavit in support, the grounds of opposition, the evidence adduced by the parties and the circumstances of the estate. The issues for determination are, in my view, as follows:
i. Whether the Certificate of Confirmation of Grant ought to be rectified to include the surviving spouse as a beneficiary;
ii. Whether the surviving spouse's waiver of her life interest ought to be recorded and adopted;
iii. Whether the Court should adopt the alleged agreement on the mode of distribution and the proposed allocation to Japheth;
iv. Whether the consequential orders sought against the County Land Registrar should issue; and
v. Who should bear the costs of the application.
Analysis and Determination
30. The deceased died intestate. The estate must therefore be administered and distributed in accordance with the Law of Succession Act. The Court's primary obligation is to ensure that the estate devolves upon the persons entitled to it and that the interests of all beneficiaries are safeguarded.
31. From the record, the widow, Eunita Kerubo Ratemo, was one of the persons to whom the Grant of Letters of Administration was issued. The subsequent Certificate of Confirmation of Grant, however, provided for the properties to be held by her in trust for the children. The present application seeks to rectify the grant and have her recognized as a beneficiary and to have her life interest waived among other prayers. The applicants are also seeking to rectify the mode of distribution so as to Japheth is allocated 5 acres of Nakuru/Mitimingi/181 measuring approximately 5 acres among other prayers of rectification.
32. on issue of rectification Section 74 of the Law of Succession Act provides for rectification of errors in names and descriptions, or in setting out the time and place of the deceased's death, or the purpose of a limited grant. The jurisdiction is therefore not a general power to reopen and redesign the substantive distribution of an estate.
33. Rectification of grant is provided for in Section 74 of the Law of Succession Act, Cap 160 Laws of Kenya and Rule 43(1) of the Probate & Administration Rules. Section 74 provides as follows:-
“ 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 may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.”
34. Rule 43(1) of Probate and Administration Rules provides: -
“Where the holder of the 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 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 made.”
35. Thus, rectification of grant of letters of administration is limited to matters set out in section 74 of the Law of Succession Act. These matters specifically refer to corrections of errors which the court may order without changing the substance of the grant. These include 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 envisaged under the section is a mistake which may occur on the face of the grant like typing errors in names of persons or things.
36. The issue of rectification of grant has been addressed in various decisions in the High Court which I have considered here as persuasive authorities. In the matter of the Estate of Hasalon Mwangi Kahero [2013] eKLR
“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.”
37. Similarly In the Matter of the Estate of Geoffrey Kinuthia Nyamwinga (Deceased) [2013] eKLR:-
“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 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…. 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.”
38. Relying on the above provisions of law, the prayer for rectification must be considered within the confines of the law governing rectification of grants. Rectification cannot properly be employed as a means of introducing an entirely new mode of distribution where the effect would be to substantively alter the rights of beneficiaries already determined upon confirmation.
39. In the present case, the Applicants are not merely asking the Court to correct a typographical or descriptive error. They seek to introduce the surviving spouse as a beneficiary, adopt a waiver of life interest and, more significantly, introduce a new substantive mode of distribution which includes the allocation of approximately five acres of NAKURU/MITIMINGI/181 to Japheth and additional acreage allegedly donated to him by other beneficiaries.
40. In my view, the latter prayers go beyond the permissible scope of rectification under Section 74 of the Law of Succession Act(Supra). The Applicants' proposal concerning NAKURU/MITIMINGI/181 goes beyond a mere correction of an accidental or clerical omission. It seeks a substantive alteration of the mode of distribution by carving out approximately five acres for Japheth and further recognizing an alleged arrangement by which other beneficiaries would surrender portions of their respective shares to him.
41. I therefore find that the prayer for rectification cannot be granted to the extent that it seeks to introduce a new substantive mode of distribution.
42. On the question of distribution, the deceased was survived by a spouse and children, including daughters. The law does not discriminate between male and female children in matters of intestate succession. Section 38 of the Law of Succession Act, although expressly applicable where there is no surviving spouse, embodies the principle that children are to inherit without discrimination based on gender.
43. In M’Murithi v Murithi [2015] KECA 347 (KLR) , the Court of Appeal held that Section 38 enshrines equal distribution of the net intestate estate amongst surviving children irrespective of gender and whether they are married or unmarried. The Court specifically found that discrimination against married daughters in distribution of an estate was contrary to Section 38 of the Law of Succession Act.
44. The same principle was affirmed in Rono versus Rono & another [2008] 1KLR (G&F) 803 which remains an important authority against discrimination of daughters in succession matters. The courts have consistently held that daughters cannot be excluded from their deceased parent's estate merely because they are female or married.
45. In the circumstances of this case, the Respondent's objection that the proposed distribution should not discriminate against the daughters is therefore well founded in law.
46. The evidence before the Court does not establish a binding agreement amongst all the beneficiaries. The Respondent expressly denied consenting to the proposed mode of distribution. Indeed, she testified that she did not sign the consent and maintained that there was no agreement on distribution.
47. The evidence of Margaret and Naomi establishes that they were individually willing to surrender portions of their respective shares to Japheth. That evidence, however, does not establish the consent of all the beneficiaries. Margaret herself confirmed during cross-examination that there was no consent after the parties had been directed to come up with one.
48. The Court therefore finds that there was no consensus among all the beneficiaries on the proposed mode of distribution. A proposal supported by some beneficiaries cannot, in the absence of the consent of the affected beneficiaries or a lawful determination by the Court, be treated as an agreed mode of distribution.
49. I have also considered the evidence concerning Japheth's role in defending the estate in ELC Case No. 38 of 2012. The Respondent acknowledged that the suit had to be defended and that Japheth participated in defending the estate.
50. The Court appreciates the efforts made by Japheth in preserving the estate. However, such contribution does not, without more, confer upon him a proprietary entitlement to a particular portion of the estate. An administrator or beneficiary cannot appropriate estate property merely on the basis that he or she has incurred expenses or rendered services in relation to the estate.
51. Indeed, his contention that he went ahead and constructed a house on this property before the confirmation of grant and before the property was distributed to him amounts to intermeddling with the estate of the deceased which is outlawed under section 45 of the Law of Succession Act and cannot be heard to urge the court condone an unlawful act.
52. The Court is also guided by the principle that a personal representative holds estate property for purposes of administration and distribution and not for personal benefit. The fact that Japheth constructed a house on NAKURU/MITIMINGI/181 is similarly not, by itself, sufficient to vest the underlying land in him. The Respondent acknowledged the existence of the house and that Japheth had constructed it. However, the ownership of estate property must be determined within the succession proceedings and in accordance with the lawful interests of all beneficiaries.
53. The proposed allocation of approximately five acres to Japheth would, in effect, alter the beneficial interests of the other beneficiaries. Such an alteration cannot properly be achieved through a mere application for rectification.
54. On the surviving spouse's waiver of life interest, the Court takes note of the evidence that Eunita Kerubo Ratemo is willing to waive her life interest. The waiver is a matter that may be taken into account in determining the final mode of distribution. However, the waiver cannot confer upon the other beneficiaries a right to distribute the estate in a manner contrary to the law.
55. Further, the Court cannot adopt a purported agreement as an "agreed mode of distribution" when one of the beneficiaries expressly disputes having consented to it. The Court's duty is to ensure that the estate is distributed according to the law and that no beneficiary is deprived of his or her lawful share.
56. The prayer seeking orders against the County Land Registrar must consequently fail. The Land Registrar can only effect transmission and registration pursuant to a lawful and enforceable order or confirmed Grant. Since the proposed mode of distribution has not been established as a lawful agreed mode, the consequential orders sought cannot issue.
57. As regards the alternative prayer under Rule 41(3) of the Probate and Administration Rules, the issue concerning the developed portion of NAKURU/MITIMINGI/181 has already been canvassed through viva voce evidence by consent of the parties. The Court has considered that evidence and there is therefore no basis for directing a further hearing of the same issue.
58. In reaching this conclusion, the Court is mindful that the overriding objective in succession proceedings is not merely to bring the administration of an estate to an end but to do so in a manner that protects the lawful interests of all beneficiaries. The Court cannot approve a distribution merely because it is supported by a majority of beneficiaries where another beneficiary's lawful interest is thereby affected. The court is under a duty to satisfy itself as to respective identities and all shares of the person’s beneficiary entitled; and when confirmed grant shall specify all such persons and their respective shares. See proviso section 71 of the Law of Succession Act.
59. In the circumstances, I find that the Applicants have not established a sufficient legal basis for the substantive rectification of the confirmed mode of distribution sought in the application.
Disposition
60. In the result, the Notice of Motion dated 31 st March 2026 is determined as follows:
a. The prayers for leave to have the matter heard during the Easter recess and certification of the matter as urgent are spent.
b. The prayer to rectify the Certificate of Confirmation of Grant to introduce the proposed substantive mode of distribution is declined.
c. The Court takes cognizance of the stated voluntary waiver by Eunita Kerubo Ratemo of her life interest. The consequence is that the Certificate of Confirmation of grant is incapable of taking effect and is amenable to revocation.
d. The prayer to allocate approximately five (5) acres of NAKURU/MITIMINGI/181 upon which the permanent homestead stands to JAPHETH AMENYA RATEMO is declined in the absence of a consent by all the beneficiaries.
e. The prayer seeking recognition and enforcement of the alleged agreement awarding Japheth Amenya Ratemo additional acreage is declined, there being no demonstrated agreement binding upon all the beneficiaries.
f. The consequential prayers directed at the County Land Registrar, Kisii, are declined.
g. The prayer for determination of the issue concerning NAKURU/MITINGI/181 by Viva Voce evidence under Rule 41(3) is spent, the issue having already been canvassed by way of Viva Voce evidence. The objection by the Respondent is allowed to the extent stated in this Ruling.
h. Section 47 of the Law of Succession Act gives the court jurisdiction to determine any dispute under that Act and pronounce such decrees and make such orders therein as may be expedient. On the other hand section 76 of the Law of Succession Act gives this court jurisdiction to either on application by a party or on its motion to revoke or annul a grant where inter-alia the grant has become useless and inoperative through subsequent circumstances. Following the voluntary waiver by Eunita Kerubo Ratemo of her life interest and the clamour by objector that the estate be distributed equally, the mode of distribution as per the certificate of confirmation of grant cannot stand. The certificate of confirmation of grant is revoked to facilitate distribution of the estate to the beneficiaries including the widow who is a beneficiary under t
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