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High CourtPartially AllowedSummons dated 26th February 2019 (Probate and Administration cause)· [2020] KEHC 456 (KLR)

In re Estate of Naaman M'Mwarania (Deceased)

High Court of Kenya
16 December 2020
FGF. GikonyoTCT. W. Cherere
1,291 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Courts will fix clear mistakes in estate documents, but they cannot overturn a judge's main decision about who gets specific property.

What this practically means

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Executive summary

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The applicant, Elizabeth Naaman, petitioner in the succession cause over the estate of Naaman M'Mwarania, brought a Summons dated 26th February 2019 under Rules 43, 63 and 73 of the Probate and Administration Rules and Order 45 of the Civil Procedure Rules seeking rectification of the grant and review of the court's judgment of 12th February 2019 on distribution. She sought correction of two misnamed beneficiaries (herself, wrongly called Elizabeth Kinatoire, and Stella Mukonene, who should read Stella Mwarania), removal of L.R Ntima/Ntakira/1137 from the distribution list as it was never estate property, inclusion of an omitted beneficiary, Leah Gacheri, and redistribution of Plot 374 Kulamawe Isiolo and 2 acres on Kiirua/Ruiru/3507 to herself. The application was unopposed. The court drew jurisdiction from section 80 of the Civil Procedure Act and Order 45, holding that an error apparent on the face of the record must be readily discernible without copious explanations. It found the name discrepancies and the inclusion of non-estate land to be apparent errors and rectified the grant accordingly, renaming the two beneficiaries and removing Ntima/Ntakira/1137 from the distribution list. It found Leah Gacheri was inadvertently omitted but held that providing for her required careful consideration and hearing of parties, and stayed implementation of the grant pending resolution of that aspect. The prayers for redistribution of the Isiolo plot and the 2 acres were refused as amounting to a reversal of the court's decision, which is a matter for appeal, not review. Only the specifically stated prayers were allowed. No costs order was made.

Key legal issues

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01

Whether the grant and judgment should be rectified for errors apparent on the face of the record

Holding

Rectification allowed for misnamed beneficiaries and for inclusion of non-estate property; the omission of Leah Gacheri requires further hearing and implementation of the grant is stayed

Reasoning

The court found the names in the distribution schedule did not match the beneficiaries' identity cards, making it impossible to claim entitlements, and that Ntima/Ntakira/1137 was never estate property. No prejudice would be occasioned to any beneficiary or the estate. The omission of Leah Gacheri, however, could not be fixed without distorting the distribution and required hearing of parties.

p. 2
02

Whether redistribution of specific plots to the applicant could be achieved on review

Holding

Refused; such reversal of the distribution decision is a matter for appeal

Reasoning

The applicant sought Plot 374 Kulamawe Isiolo and 2 acres on Kiirua/Ruiru/3507 on grounds of lack of income and her homestead. The court held that granting these would mean a complete reversal of its orders, which is not a matter for review but appeal, and lamented that widows should seek ascertainment of matrimonial property rights before distribution.

p. 2

Legal principles established

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  • An error apparent on the face of the record for purposes of review must be one readily discernible without copious explanations
  • A complete reversal of a court's distribution orders is a matter for appeal, not review

Court orders

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  1. 1.The beneficiary referred to as ELIZABETH KINAITORE shall be renamed as ELIZABETH NAAMAN, holder of Id/No.0183428
  2. 2.The beneficiary referred to as STELLA MUKONENE shall be renamed STELLA MWARANIA holder of Id/No.13867359
  3. 3.The grant should not be implemented pending resolution of the omission of Leah Gacheri as a beneficiary
  4. 4.L.R No Ntima/Ntakira/1137 be removed from the distribution list
  5. 5.Only the prayers specifically stated are allowed; the prayers for redistribution of Plot 374 Kulamawe Isiolo and 2 acres of Kiirua/Ruiru/3507 are refused

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45
  • Probate and Administration RulesRules 43, 63 and 73
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules; Rules 43, 63 and 73 of the Probate and Administration Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of Naaman M'Mwarania (Deceased)", Case Analysis (2020). Summons dated 26th February 2019 (Probate and Administration cause). Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/456/eng@2020-12-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.