In re Estate of Nyakaru (Deceased) (Succession Cause E265 of 2023) [2026] KEMC 372 (KLR)

republicofkenyainthechiefmagistrate’scourtofkenyaatnakurusuccessioncausenoe265of2023apndegespminthematter oftheestateofdavidnyakwaranyakarudeceasedmarytiminahnyakaruapplicant the deceased having been issued with the grant of letters of Administration on 31/07/2023. According to the Applicant, the confirmed grant did not cite Co-operative bank account number 01109500455400 and CFC Stanbic Bank account number 0100002469377. That the 2 accounts therefore needs to be added in the confirmed grant. That no party will suffer any prejudice if the application is allowed. 3. The applicant cites section 47 of the Law of Succession. However, this court refers to Section 74 of the Law of Succession Act which provides that 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. Rule 43(1) of the Probate and Administration Rules provides that: 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. Page 2 of 8

page 2 of 8

republicofkenyainthechiefmagistrate’scourtofkenyaatnakurusuccessioncausenoe265of2023apndegespminthematter oftheestateofdavidnyakwaranyakarudeceasedmarytiminahnyakaruapplicant 4. Rectification of a grant of Letters of Administration is therefore limited to matters set out under Section 74 of the Law of Succession Act. Under this provision rectification of grant deals specifically with correction of error which the court may order without changing the substance of the grant. This includes 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 visualized under the Section is a mistake which may occur on the face of the grant like typing errors in names of persons or the things. A rectification seeking to include properties which were not in the schedule of the assets when filing the cause and not included in the grant may not fit in the matters provided under Section 74 of the Act. Further, a rectification that seeks to redistribute properties does not also fit in the matters provided under the section. 5. IN THE MATTER OF THE PLACEHOLDER-RG6UB ESTATE OF HASALON MWANGI KAHERO [2013] eKLR, the court stated; Page 3 of 8

page 3 of 8

republicofkenyainthechiefmagistrate’scourtofkenyaatnakurusuccessioncausenoe265of2023apndegespminthematter oftheestateofdavidnyakwaranyakarudeceasedmarytiminahnyakaruapplicant 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. (mine emphasis). 6. IN THE MATTER OF 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…….Where Page 4 of 8 a proposed

page 4 of 8

republicofkenyainthechiefmagistrate’scourtofkenyaatnakurusuccessioncausenoe265of2023apndegespminthematter oftheestateofdavidnyakwaranyakarudeceasedmarytiminahnyakaruapplicant 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. 7. IN RE ESTATE OF CHARLES KIBE KARANJA (DECEASED) [2015] eKLR, the court stated; 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 Page 5 of 8

page 5 of 8

republicofkenyainthechiefmagistrate’scourtofkenyaatnakurusuccessioncausenoe265of2023apndegespminthematter oftheestateofdavidnyakwaranyakarudeceasedmarytiminahnyakaruapplicant 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…………Where known assets are omitted from the schedule of the property to be distributed or the name of a known beneficiary or heir is inadvertently left out of the confirmation application, an application ought to be made for review of the confirmation orders to accommodate the said assets or beneficiaries on the basis that the said assets or heirs were left out by mistake or error. Where assets are discovered after the Court has confirmed the grant or an heir or survivor of the deceased who had previously been unheard of materializes after distribution, the Court may review its orders made at the point of confirming the grant on the ground of discovery of new and important evidence that was not available at the time the grant Page 6 of 8

page 6 of 8

republicofkenyainthechiefmagistrate’scourtofkenyaatnakurusuccessioncausenoe265of2023apndegespminthematter oftheestateofdavidnyakwaranyakarudeceasedmarytiminahnyakaruapplicant was being confirmed…………New assets cannot be introduced and distributed by merely rectifying the certificate of confirmation of grant. That calls for going back to the distribution orders, so as to have them altered or revised. (mine emphasis). 8. There is harmony in the above decisions that rectification of grant deals with correction of errors and/or mistakes in names and description. A party seeking rectification to bring in assets not originally included in the grant or to redistribute the estate in a manner as sought for herein cannot be said to be seeking rectification. 9. The Applicant in this case has stated that she omitted some of the properties from the onset, during the filing of the Petition for Grant of letters of Administration. Seeking to add the monies in the 2 bank accounts herein and to distribute the same is a substantial amendment which cannot be handled by rectification/ amendment under Section 74 of the Law of Succession Act. The Applicant would be required to produce evidence as to whether the omitted properties belonged to the deceased and give a proper account as to why the properties were omitted from the beginning. Page 7 of 8

page 7 of 8

republicofkenyainthechiefmagistrate’scourtofkenyaatnakurusuccessioncausenoe265of2023apndegespminthematter oftheestateofdavidnyakwaranyakarudeceasedmarytiminahnyakaruapplicant 10. As held by Ogola, J., in IN RE ESTATE OF JOHN NGACHA NG'ANG'A Applicant (DECEASED) could perhaps [2023] KEHC 19462 (KLR), the consider In seeking a review. consideration of the above, the Application dated 15/09/2025 is not allowed. Costs shall be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS…28th. DAY OF…July.…2026. ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE Ruling delivered online the presence of: …………………………n/a………………for the Applicant …………………………n/a………………Court Assistants Applicant: n/a Beneficiaries:n/a Page 8 of 8

page 8 of 8