[1] This cause relates to the Estate of Philemon Ondae Maira (the Deceased) who died intestate on 18 th August 1993. A Petition for Grant of Letters of Administration Intestate was filed on behalf of the deceased’s Estate on 4 th June 2013 by one of his sons, Kennedy Ouma Ondae on behalf of the beneficiaries of the Estate. The deceased left behind several pieces of land whose value was not stated in the Affidavit in Support of Petition for Letters of Administration Intestate (Form P&A.5). Nevertheless, the Petition was duly processed and Grant of Letters of Administration Intestate was issued on 14 th April 2016.
[2] The said Grant was confirmed and a Certificate of Confirmation of Grant issued on 18 th October 2018 by which the proposed Mode of Distribution made by the petitioner was approved. The matter remained dormant until November 2025 when the petitioner filed the Summons for Rectification of Grant dated 12 th November 2025. He brought the application pursuant to Section 74 of the Law of Succession Act seeking the following orders:
[a] That the Grant of Letters of Administration Intestate issued to him on 14 th April 2016 be rectified to include one more asset, namely, Central Karachuonyo/Konyango/903;
[b] That the file be re-opened.
[c] that the costs of the application be in the cause.
[3] The application was supported by the affidavit sworn by the applicant on 12 th November 2025 in which he averred that the subject asset was inadvertently omitted in Form P&A.5, and that it is desirable that the error be rectified for purposes of distribution of the estate of the deceased. The petitioner annexed to his affidavit copies of the Grant, Certificate of Confirmation and Certificate of Official Search. He prayed that the application, which is unopposed, be allowed and orders granted as prayed.
[4] Section 74 of the Law of Succession Act stipulates that:
"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."
[5] In the same vein, Rule 43(1) of the Probate and Administration Rules provides:
“Where the holder of grant seeks pursuant to 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 places 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 Form110 for such rectification through the registry and in the cause in which the grant was made.”
[6] Clearly therefore, the error sought to be corrected under the above provisions must relate to names and descriptions, or time and place of death of the deceased. The instant application seeks to introduce an additional asset after the issuance of a Certificate of Confirmation and therefore does not fall within the purview of Section 74 of the Law of Succession Act. The application is also silent on how the property is to be treated by way of distribution. I am therefore fully in agreement with the position taken in the matter of the Estate of Geoffrey Kinuthia (Deceased) [2013] KEHC 3745 (KLR) that:
The omission relating to this property cannot be dealt with under is Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules as it is not an error in names of persons or places, nor to descriptions of persons, things or places. It cannot be handled be under these two provisions. A grant and a certificate of confirmation of grant are court orders taking the form of a certificate. The grant is made after the court allows the petition for a grant of representation, whether it be of letters or of probate. A certificate of confirmation of grant is issued following a successful application for confirmation of the grant. The two are not pleadings, and therefore the principles which govern their rectification are not those applying to amendment of pleadings but those that apply to amendment of court orders.
[7] The Court further stated:
“The Law of Succession Act does not provide for amendment of pleadings in succession causes, but it does provide amendment of grants. This is through either Section 74 of the Law of Succession Act to the extent provided in that provision, or through a review application through Order 44 of the Civil Procedure Rules. Order 44 was formerly Order XLV, which is one of the provisions of the Civil Procedure Rules imported into succession practice through Rule 63 of the Probate and Administration Rules. 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 – the omission of the two properties from the confirmation application and the certificate of grant respectively.”
[8] In the premises, the application dated 12 th November 2025 is misconceived and is hereby struck out. Costs thereof to be in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED AT HOMA BAY THIS 24 TH DAY OF FEBRUARY, 2026
[2] The said Grant was confirmed and a Certificate of Confirmation of Grant issued on 18 th October 2018 by which the proposed Mode of Distribution made by the petitioner was approved. The matter remained dormant until November 2025 when the petitioner filed the Summons for Rectification of Grant dated 12 th November 2025. He brought the application pursuant to Section 74 of the Law of Succession Act seeking the following orders:
[a] That the Grant of Letters of Administration Intestate issued to him on 14 th April 2016 be rectified to include one more asset, namely, Central Karachuonyo/Konyango/903;
[b] That the file be re-opened.
[c] that the costs of the application be in the cause.
[3] The application was supported by the affidavit sworn by the applicant on 12 th November 2025 in which he averred that the subject asset was inadvertently omitted in Form P&A.5, and that it is desirable that the error be rectified for purposes of distribution of the estate of the deceased. The petitioner annexed to his affidavit copies of the Grant, Certificate of Confirmation and Certificate of Official Search. He prayed that the application, which is unopposed, be allowed and orders granted as prayed.
[4] Section 74 of the Law of Succession Act stipulates that:
"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."
[5] In the same vein, Rule 43(1) of the Probate and Administration Rules provides:
“Where the holder of grant seeks pursuant to 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 places 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 Form110 for such rectification through the registry and in the cause in which the grant was made.”
[6] Clearly therefore, the error sought to be corrected under the above provisions must relate to names and descriptions, or time and place of death of the deceased. The instant application seeks to introduce an additional asset after the issuance of a Certificate of Confirmation and therefore does not fall within the purview of Section 74 of the Law of Succession Act. The application is also silent on how the property is to be treated by way of distribution. I am therefore fully in agreement with the position taken in the matter of the Estate of Geoffrey Kinuthia (Deceased) [2013] KEHC 3745 (KLR) that:
The omission relating to this property cannot be dealt with under is Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules as it is not an error in names of persons or places, nor to descriptions of persons, things or places. It cannot be handled be under these two provisions. A grant and a certificate of confirmation of grant are court orders taking the form of a certificate. The grant is made after the court allows the petition for a grant of representation, whether it be of letters or of probate. A certificate of confirmation of grant is issued following a successful application for confirmation of the grant. The two are not pleadings, and therefore the principles which govern their rectification are not those applying to amendment of pleadings but those that apply to amendment of court orders.
[7] The Court further stated:
“The Law of Succession Act does not provide for amendment of pleadings in succession causes, but it does provide amendment of grants. This is through either Section 74 of the Law of Succession Act to the extent provided in that provision, or through a review application through Order 44 of the Civil Procedure Rules. Order 44 was formerly Order XLV, which is one of the provisions of the Civil Procedure Rules imported into succession practice through Rule 63 of the Probate and Administration Rules. 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 – the omission of the two properties from the confirmation application and the certificate of grant respectively.”
[8] In the premises, the application dated 12 th November 2025 is misconceived and is hereby struck out. Costs thereof to be in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED AT HOMA BAY THIS 24 TH DAY OF FEBRUARY, 2026