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High CourtPartially AllowedNot stated in judgment (Summons for Rectification of Grant dated 1.4.2019)

In re Estate of Waweru Wahinya Kuibiga alias Waweru Wahinya Kuibita (Deceased)

High Court of Kenya
31 January 2020
AOASENATH ONGERI
413 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A surveyor's report can force the court to correct land inheritance documents if the actual usable area is smaller than recorded.

What this practically means

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Executive summary

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The Administrators of the estate of Waweru Wahinya Kuibiga alias Waweru Wahinya Kuibita (Deceased) filed a summons for rectification of grant dated 1.4.2019, seeking amendment of the confirmed grant of letters of administration dated 8.12.2018 so that each of the three houses of the deceased would inherit 0.056 Ha instead of 0.07 Ha of property DAGORETTI/RIRUTA/1303. The application was supported by the affidavits of the four administrators: Beatrice Wanjiku Nguhi, Robert Thiongo Kariuki, Francis Mwaniki Waweru and Andrew Phoro Waweru. The basis for rectification was a report by licensed surveyor John D'Obel of Geomatic Services, who visited the parcel and found the acreage available for distribution was 0.168 Ha and not 0.212 Ha as stated in the title deed, because 0.042 Ha was provisioned for a road. One beneficiary, Ephantus Ndungu Waweru, opposed the summons through an objection supported by an affidavit dated 27.5.2019, raising issues the court found unrelated to the grounds of the summons; the court noted he had filed applications that had protracted the case for several years. Asenath Ongeri J held there was no indication the objector would be disinherited, dismissed his objection, and allowed the summons for rectification. The court directed that a further amended Certificate of Confirmation issue accordingly and, as a family matter, ordered each party to bear its own costs of the summons dated 1.4.2019.

Key legal issues

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01

Rectification of a confirmed grant to correct acreage for distribution

Holding

Rectification allowed; each of the three houses to inherit 0.056 Ha instead of 0.07 Ha of DAGORETTI/RIRUTA/1303

Reasoning

The court accepted the surveyor's finding that the distributable acreage was 0.168 Ha and not 0.212 Ha due to a road provision, and held the amendment merely reflects the actual area available for distribution among the houses.

p. 1
02

Objection by a beneficiary alleging disinheriting

Holding

Objection dismissed as unmerited

Reasoning

The court found nothing in the rectification indicating the objector would be disinherited; his affidavit raised issues unrelated to the grounds of the summons for rectification, and his repeated applications had protracted the case for years.

p. 1

Legal principles established

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  • A confirmed grant may be rectified to reflect the actual acreage available for distribution where a survey establishes the titled acreage is reduced by a road reserve

Court orders

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  1. 1.The objection by Ephantus Ndungu Waweru is dismissed
  2. 2.The summons for rectification dated 1.4.2019 is allowed
  3. 3.The further amended Certificate of Confirmation to issue accordingly
  4. 4.Each party to bear its own costs of the Summons dated 1.4.2019
Jurisdiction invoked
Succession law jurisdiction over rectification of a confirmed grant (summons for rectification of grant)

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 Waweru Wahinya Kuibiga alias Waweru Wahinya Kuibita (Deceased)", Case Analysis (2020). Not stated in judgment (Summons for Rectification of Grant dated 1.4.2019). Source:

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