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MagistrateDismissedSummons Application dated 08/09/2025 (Succession Cause)· [2026] KEMC 8 (KLR)

In re Estate of the Late Simon Kariuki Gathitu (Deceased) (Succession Cause E776 of 2022) [2026] KEMC 8 (KLR)

Magistrates' Court at Nakuru (Succession Division)
27 January 2026
1,649 words in judgment
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The bottom line

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A Nakuru court ruled you can't use rectification to add forgotten assets to a confirmed grant in Kenya — you must seek review instead.

What this practically means

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Executive summary

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The applicant, administrator of the estate of the deceased and holder of a grant of letters of administration issued on 28/05/2024 with a confirmed certificate dated the same day, applied by summons dated 08/09/2025 under section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules for rectification of the certificate of confirmation of grant. He sought (i) removal of E M K as the sole beneficiary of Dundori/Lanet Block 2/105 (Tabuga), she having died on 02/10/2024 before transmission could be effected, and its replacement with all the deceased's children in equal shares, and (ii) inclusion of Centum Investment Company PLC shares omitted from the schedule, also to be shared equally. The court held that rectification under section 74 is confined to correcting errors on the face of the grant - mistakes in names or descriptions, the time or place of death, or the purpose of a limited grant - and does not extend to introducing omitted assets or redistributing the estate. Relying on established High Court authorities, it found that the changes sought were fundamental, going to the core of the distribution, and required evidence that the omitted property belonged to the deceased and an explanation for the omission. The proper remedy was an application for review, available in probate practice through Rule 63 adopting Order 44 of the Civil Procedure Rules. The application dated 08/09/2025 was not allowed, with costs in the cause.

Key legal issues

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01

Scope of rectification under section 74 of the Law of Succession Act and Rule 43(1) of the Probate and Administration Rules

Holding

Rectification is confined to errors on the face of the grant - mistakes in names or descriptions or in the time and place of death, or the purpose of a limited grant - and does not extend to adding omitted properties or redistributing the estate

Reasoning

The court relied on section 74 and Rule 43(1), and on authorities holding that an 'error' means a mistake apparent on the face of the grant such as a typing error. Adding assets not in the schedule when the cause was filed, or redistributing the estate, are fundamental changes going to the core of distribution, requiring evidence that the omitted property belonged to the deceased and an account of why it was omitted. The proper route is review under Order 44 of the Civil Procedure Rules as imported by Rule 63.

p. 3
02

Whether the applicant's omissions (the Centum shares and the change of beneficiary of the Dundori/Lanet property) qualify for rectification

Holding

They do not; the applicant admitted the properties were omitted from the onset during filing of the petition, so the application was a substantial amendment not amenable to rectification

Reasoning

The applicant, as administrator, acknowledged the omissions arose when the petition was filed. The beneficiaries' consent to equal sharing could not convert a redistribution exercise into a rectification. The court noted the applicant could consider seeking a review, following Ogola, J. in In re Estate of John Ngacha Ng'ang'a.

p. 4

Legal principles established

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  • Rectification of a grant under section 74 is limited to correction of errors in names, descriptions, time or place of death, or the purpose of a limited grant, and cannot be used to introduce omitted assets or redistribute the estate
  • Where assets are omitted from the schedule or discovered after confirmation, the proper remedy is review of the confirmation orders, imported into probate practice via Rule 63 of the Probate and Administration Rules adopting the Civil Procedure Rules

Court orders

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  1. 1.The application dated 08/09/2025 is not allowed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Law of Succession ActSection 74
  • Probate and Administration RulesRule 43(1)
  • Probate and Administration RulesRule 63
  • Civil Procedure RulesOrder 44

Cases cited (4)

  • In re the Estate of Hasalon Mwangi Kahero (deceased)
    [2013] eKLR
  • In the matter of the estate of Geoffrey Kinuthia Nyamwinga (deceased)
    [2013] eKLR
  • In re estate of Charles Kibe Karanja (deceased)
    [2015] eKLR
  • In re Estate of John Ngacha Ng'ang'a (Deceased)
    [2023] KEHC 19462 (KLR)
Jurisdiction invoked
Section 74 of the Law of Succession Act (Cap 160) and Rule 43(1) 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 the Late Simon Kariuki Gathitu (Deceased) (Succession Cause E776 of 2022) [2026] KEMC 8 (KLR)", Case Analysis (2026). Summons Application dated 08/09/2025 (Succession Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/8/eng@2026-01-27

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