In the Estate of ramadhan njoka mwando

1. The applicant filed summons dated 03^rd November 2023 seeking rectification of grant issued on 11^th April 2018 to the administrators. The application is premised on the grounds on its face and in the supporting affidavit thereof, seeking orders that:
   1. The grant of letters of administration issued to the administrators in the estate of the deceased on 11^th April 2018 and confirmed on the same date be rectified in the following respect as provided for by Rule 43(1) of the Probate and Administration Rules;
      1. Gaturi/Githimu/3668 (0.07Ha) be distributed as follows:

1. Zuhra Ithiru

2. Bilali Njagi Njeru Abdulkarim

3. Mohamed Al Khatati

4. Mwanaisha Abdulkarim                 Equal shares

5. Bilali Njagi Njeru Abdulkarim

6. Juma Ramadhan Njoka                 jointly

• 1. The costs of this application be provided for.

1. The amended certificate of confirmation of grant issued on 17^th January 2019 indicated that parcel number Gaturi/Githimu/3668 would be inherited by Zuhra Ithiru, Bilali Njagi Njeru Abdulkarim, Mohamed Al Khatati, Mwanaisha Abdulkarim and Bilali Njagi Njeru Abdulkarim and Juma Ramadhan Njoka jointly in trust for Institute of Islamic Nurture. The applicants stated that they have been unable to distribute the estate because one of the beneficiaries named Bidali Ramadhan Njoka passed away leaving no wife or children but he had nominated his nephew Bidali Njagi Njeru Abdulkarim to inherit his share of Gaturi/Githimu/3668.
2. Further, that the Institute of Islamic Nurture is not formally registered and so the portion that would be inherited by the institute should be given to Bidali Njagi Njeru Abdulkarim and Juma Ramadhan Njoka jointly until such time as the institute will be registered. That in the circumstances, it is necessary to amend the particulars in the certificate of confirmation of grant as prayed.
3. The respondent filed a replying affidavit stating that he does not oppose the rectification but he disagrees with the redistribution proposed. He deposed that upon his death, his deceased brother Bidali Ramadhan Njoka left unsurveyed Residential Plot Number 197 which was sold to Mwini Mohammed Njoka, thus, the rectification should incorporate this purchaser.  That the deceased beneficiary also left Land parcel number Gaturi/Githimu/3668 which should be inherited by his brothers being the deponent and his deceased brothers’ wives. He disputed that his late brother Bidali Ramadhan Njoka nominated Bidali Njagi Njeru Abdulkarim as his successor since no evidence was presented to that effect. He did not oppose the redistribution affecting the Institute of Islamic Nurture.
4. The court directed the parties to file their written submissions but only the applicants complied.
5. In their submissions, the applicants submitted that they have no interest in the properties but they would like the deceased’s beneficiary’s portion to be inherited by his nephew Bidali Njagi Njeru Abdulkarim. That the portion of land is too small to be distributed in the manner proposed by the respondent in the replying affidavit. That land rates is still accruing on the suit land and it is prudent that the rectification be allowed given that the respondent does not contest the portion bequeathed to the Institute of Islamic Nurture.
6. The issue for determination is whether the application has merit.
7. Rectification of a grant, before or after confirmation is provided for in the law as follows:

Section 74 of the Law of Succession Act provides:

Errors in names and descriptions, or in setting out 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.

Rule 43(1) of the Probate and Administration Rules provides:

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.

1. It is clear that rectification of a grant can only be done by the issuing court in a very limited manner that does not go to the substance of the distribution itself. That is to say, it is limited to the details found on the grant of representation itself as provided for under section 53 of the Law of Succession Act, and not the mode of distribution as captured in the certificate of confirmation of grant. The parties herein wish to have the amended certificate of confirmation of grant rectified by removing the name of a deceased beneficiary and replacing it with another. They also agree to remove Institute of Islamic Nurture from the list of beneficiaries of the subject portion of land.
2. Both parties have stated that one of the beneficiaries namely Bidali Ramadhan Njoka passed away and he was not survived by a wife or children. Under Section 66(b) of the Law of Succession Act, other beneficiaries can petition for letters of administration in his estate since it appears from the respondent’s replying affidavit, that the deceased beneficiary had other properties. That being said, it is not possible to rectify the amended certificate of confirmation of grant by simply removing the name of a deceased beneficiary without his estate being subjected to succession proceedings.
3. If the applicants were to seek redistribution of the estate, they should apply for setting aside of the certificate of confirmation of grant and if allowed, file fresh summons for confirmation of the grant with fresh consents and relevant affidavits. The subject property was already in existence and had been distributed. Otherwise, rectification of this nature is not permitted by the Act and it goes to affect already distributed estate. In the case of Re Estate of Charles Kibe Karanja (Deceased) 2015 eKLR the Court held as follows:-

“If….. 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.”

1. The limited nature of summons for rectification and the guiding laws was also discussed in the matter of the estate of Geoffrey Kinuthia Nyamwinga (deceased) (2013) eKLR (supra) where the court held thus:

“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…….”

1. I do note that the parties herein have agreed on certain aspects of the redistribution of the estate. However, it is not possible for this court to entertain this line of argument since section 74 of the Law of Succession Act limits how far the court can go. As stated earlier, the parties should pursue the relevant processes towards redistribution of the property in question since their remedy does not, in any way, lie in an application for rectification of the amended certificate of confirmation of grant.
2. Consequently, the application fails and is hereby struck out for the aforementioned reasons. There shall be no order as to costs.
3. It is so ordered

Delivered, dated and signed at Embu this 9^th day of October, 2024.