High Court 4293 of 2026

v. 2. 3. Shares at Kenya Post Office Savings Bank Account No. 045601XXX b. That property no. Eldoret Municipality/ Block 12 Pioneer be rectified to reflect Eldoret Municipality/Block 12 Pioneer/770 and Eldoret Municipality/ Block 12 Pioneer/772 and that the same be held by Margaret Wanjiru Waweru. c. That costs of this application shall be provided for. The application is made on the following grounds on the face of it among others: a. A Certificate of Confirmation of Grant to the estate of the late Mwaura Christine Wambui was issued to the beneficiaries on 5/11/2025 by this Honourable Court. b. That the applicant now wishes to have P&A 5 amended to incorporate the assets that were left out. c. That property no. Eldoret Municipality/ Block 12 Pioneer be rectified to reflect Eldoret Municipality/block 12 Pioneer/770 and Eldoret Municipality/ Block 12 Pioneer/772 and that the same be held by Margaret Wanjiru Waweru. d. It is fair and just that the grant be rectified/amended to enable winding up of the estate. The Application is supported by the annexed affidavit sworn by the 1st Petitioner/Applicant – 5th Petitioner/Applicant who deponed as follows: a. That we made an application for Confirmation of Grant and the same was heard and allowed and a Certificate of Confirmation of Grant was issued on 5/11/2025. b. That after issuance of Certificate of Confirmation of Grant, it was later discovered that some assets belonging to the deceased had been left out. That the assets that were not included are: - c. a. Eldoret Municipality Block LR 14/354 Measuring 50 Acres b. Ngeria/kabongo Block 3(KIAMBAA)/166 c. Shares at The New Lincoln Hotel d. Shares at Equity Bank Account No. 003001XXX e. Shares at Kenya Post Office Savings Bank Account No. 045601XXX That it is now fair and just that the above proposed amendments so as to enable winding up of the estate. Resolution 4. I have read and considered the Summons before this Honourable Court. The central issue for determination is Whether the reliefs sought fall within the scope of rectification of grant under Section 74 of the Law of Succession Act or whether they properly fall within the review jurisdiction of the Court. The Applicable law on rectification of the Grant is provided for in Section 74 of the Law of Succession Act which provides for rectification of grants but is limited in scope to: a. Errors in names and descriptions b. Errors as to time and place of death c. Clerical or typographical mistakes https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4293/eng@2026-04-01 2

page 2 of 4

5. Further, Rule 43 of the Probate and Administration Rules governs applications for rectification. However, Rule 63 of the Probate and Administration Rules imports certain provisions of the Civil Procedure Rules into succession proceedings. Among these is Order 45 of the Civil Procedure Rules, which governs the review jurisdiction of the Court. Under Order 45 rule 1 of the Civil Procedure Rules, a court may review its orders where: a. There is discovery of new and important evidence b. There is an error apparent on the face of the record c. There exists any other sufficient reason 6. From the affidavit evidence, the Applicants contend that certain assets belonging to the deceased were inadvertently omitted from the schedule of assets at the time of confirmation of the grant. These assets are neither minor nor incidental; rather, they constitute substantive components of the estate. The question that arises is whether such omission can be cured through rectification under Section 74. In the Court’s view, the answer is in the negative. 7. Section 74 is deliberately narrow in scope and is intended to address minor errors and clerical mistakes in grants. It does not extend to the inclusion of substantive assets that were not originally disclosed or considered during confirmation. To allow such inclusion under the guise of rectification would amount to a re-opening of the confirmation process, which falls outside the purview of Section 74 of the Law of Succession Act. The inclusion of entirely new assets fundamentally alters the nature and extent of the estate and by extension, the rights of beneficiaries. Such a process requires a more robust legal framework than mere rectification. 8. This Court therefore finds that the Applicants’ reliance on Section 74 is misplaced. However, that is not the end of the matter. By virtue of Rule 63 of the Probate and Administration Rules, this Court is empowered to invoke the provisions of the Civil Procedure Rules, including Order 45 on review. The discovery of previously undisclosed assets constitutes new and important evidence, which was not within the knowledge of the Applicants at the time of confirmation of the grant, or which could not be produced despite due diligence. In Nyamogo & Nyamogo Advocates Vs Kago [2001] 1 EA 173 the Court of Appeal made the point that: “ 21. 9. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.” See the court in State of West Bengal v Kamal Sengupta (2008) 8 SCCC 612. The Applicants have demonstrated, through their affidavit evidence, that the omission of the said assets was not deliberate but arose from subsequent discovery. This Court is satisfied that such discovery meets the threshold required under Order 45. Further, the rectification sought in respect of the property described as Eldoret Municipality/Block 12 Pioneer specifically its proper identification as parcels 770 and 772 falls within the category of correction of description, which may be addressed within the broader review jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4293/eng@2026-04-01 3

page 3 of 4

10. The Court is also guided by the overarching principle that the primary duty in succession matters is to ensure the just, fair and complete distribution of the estate of the deceased. To exclude assets genuinely belonging to the estate would defeat this objective and occasion injustice to the beneficiaries. For the avoidance of doubt, the Amended Certificate of Confirmation of Grant has been efiected and the Amended Certificate of Confirmation of Grant was issued on 12th day of November 2025 hence this ruling was pursuant to the aforementioned Grant. Accordingly, the Court makes the following orders: 1. 2. The Certificate of Confirmation of Grant issued on 5th November 2025 is hereby reviewed. The Certificate of Confirmation of Grant shall estate shall include the following assets: a. Eldoret Municipality Block LR 14/354 measuring 50 acres b. Ngeria/Kabongo Block 3 (Kiambaa)/166 c. Shares at The New Lincoln Hotel d. Shares in Equity Bank Account No. 003001XXX e. Shares in Kenya Post Office Savings Bank Account No. 045601XXX The property described as Eldoret Municipality/Block 12 Pioneer is hereby rectified to read: a. Eldoret Municipality/Block 12 Pioneer/770 b. Eldoret Municipality/Block 12 Pioneer/772 to be held by Margaret Wanjiru Waweru as proposed. 3. The distribution of the estate shall proceed in accordance with the amended schedule in the Amended Certificate of Confirmation of Grant dated 12th November 2025. 4. There shall be no order as to costs. 5. It is so ordered. DATED SIGNED AND DELIVERED VIA CTS & EMAIL AT ELDORET, THIS 1ST DAY OF APRIL 2026 ………………………………… R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4293/eng@2026-04-01 4

page 4 of 4