REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI FAMILY DIVISION SUCESSION CAUSE NO. E890 OF 2023 IN THE MATTER OF THE ESTATE OF JOEL NDOHO MWAURA (DECEASED) IN THE MATTER OF EMILY WAMBUI NDOHO ……… APPLICANT RULING 1. Before me for determination is summons for rectification of certificate for confirmation of Grant dated 30th April 2026 brought under Section 74 of Law of Succession Act and Rule 43 of the Probate and Administration Rules. 2. The Applicant prays for orders that: a. The certificate of confirmation of Grant issued by this honourable Court to Isaiah Mwaura Ndoho and Emily Wambui Ndoho on 31 st October 2024 in respect of the Estate of Joel Ndoho Mwaura (Deceased), be rectified by amending the Schedule in the following respect: SUCCESSION CAUSE NO. E890 OF 2023 po/ hkc RULING Page 1 of 7
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a) Allocating presently KABETE/GIKUNI/T.102 allocated to Emily Wambui Ndoho and Isaiah Mwaura Ndoho to Full Gospel Churches of Kenya Kabete Local Branch. b) Allocating presently KABETE/NYATHUNA/102 allocated to Full Gospel Churches of Kenya Kabete Local Branch to Rebecca Wanjiru Ndoho. b. The amended Certificate of confirmation of grant do issue accordingly. c. Costs be provided for. 3. The Application was supported by the supporting affidavit of Emily Wambui Ndoho, on the grounds that the Certificate of Confirmation of Grant issued by this Honourable Court on 31st October 2024 contains an apparent error in the distribution of the estate. They state that land parcel number KABETE/NYATHUNA/102 was erroneously allocated to Full Gospel Churches of Kenya Kabete Local Branch instead of KABETE/GIKUNI/T.102, while KABETE/GIKUNI/T.102 was mistakenly allocated to Emily Wambui Ndoho and Isaiah Mwaura Ndoho. 4. That the Full Gospel Churches of Kenya Kabete Local Branch is developed on and is in actual occupation of KABETE/GIKUNI/T.102, and that, by the consent of the beneficiaries, KABETE/NYATHUNA/102 was intended to be allocated to Rebecca Wanjiru Ndoho, and not to Emily Wambui Ndoho and Isaiah Mwaura Ndoho. They therefore SUCCESSION CAUSE NO. E890 OF 2023 po/ hkc RULING Page 2 of 7
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maintain that the error is apparent on the face of the record and that the confirmed Grant ought to be rectified to reflect the parties' intention, the actual occupation of the respective properties, and the intended beneficial ownership. 5. They therefore seek an order rectifying the Schedule to the Certificate of Confirmation of Grant by allocating KABETE/GIKUNI/T.102 to Full Gospel Churches of Kenya Kabete Local Branch and KABETE/NYATHUNA/102 to Rebecca Wanjiru Ndoho. 6. They contend that the proposed rectification will correct the erroneous property allocations and ensure that the confirmed Grant accurately reflects the parties' mutual intention, the actual occupation of the properties, and the true beneficial ownership. ANALYSIS AND DETERMINATION 7. I have considered the application and the affidavit in support of the same, there is only one issue for determination and that is; whether the Court should order the rectification of the grant. 8. The jurisdiction of this Court to order rectification of grant is granted by Section 74 of the Law of Succession Act. The Section provides: “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, and the grant of representation, whether SUCCESSION CAUSE NO. E890 OF 2023 po/ hkc RULING Page 3 of 7
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before or after confirmation, may be altered and amended accordingly.” 9. The marginal notes under the section states that errors may be rectified by the Court. On the other hand, Rule 43(1) of the Probate and Administration Rules provides: “Where the holder of 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 and places 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 in Form110 for such rectification through the registry and in the cause in which the grant was issued.” 10. From the wording of these provisions which deal with rectification of grant, it is worth emphasizing that rectification under Section 74 of the Law of Succession Act is intended to address minor errors in names, descriptions, or other clerical mistakes, and not to reopen or substantially alter the distribution of the estate. 11. In the matter of the Estate of Geoffrey Kinuthia Nyamwenga 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 SUCCESSION CAUSE NO. E890 OF 2023 po/ hkc RULING Page 4 of 7
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the Court where they relate to names or descriptions, or setting out of the time or place of 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 a proposed 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.” 12. Other matters which may substantially affect the grant are more appropriately addressed through an application for review of the Judgment or by way of appeal. The Applicant herein does not seek to redistribute the estate but merely seeks the rectification of the erroneous allocation of land parcel numbers SUCCESSION CAUSE NO. E890 OF 2023 po/ hkc KABETE/GIKUNI/T.102 RULING Page 5 of 7 and
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KABETE/NYATHUNA/102 in the Certificate of Confirmation of Grant. 13. Specifically, the Applicant seeks the allocation of land parcel number KABETE/GIKUNI/T.102 to Full Gospel Churches of Kenya Kabete Local Branch and land parcel number KABETE/NYATHUNA/102 to Rebecca Wanjiru Ndoho, in accordance with the parties' mutual intention, the actual occupation of the respective properties, and the intended beneficial ownership. 14. The proposed rectification will therefore correct an error apparent on the face of the record without altering the substance of the confirmed grant. In confirming the grant, this Honourable Court relied on the Applicant's Affidavit in Support of the Summons for Confirmation of Grant, from which it is evident that the erroneous allocation resulted from an inadvertent error in the description of the respective parcels of land. 15. In the premises the application is allowed as follows: a) Land parcel number KABETE/GIKUNI/T.102 presently allocated to Emily Wambui Ndoho and Isaiah Mwaura Ndoho be hereby re- allocated to Full Gospel Churches of Kenya Kabete Local Branch. b) Land parcel number KABETE/NYATHUNA/102 presently allocated to Full Gospel Churches of Kenya Kabete Local Branch be hereby reallocated to Rebecca Wanjiru Ndoho. SUCCESSION CAUSE NO. E890 OF 2023 po/ hkc RULING Page 6 of 7
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c) There shall be no orders as to cost. Dated signed and delivered via video link at Nairobi this 16th day of July 2026. H.K. CHEMITEI JUDGE, FCIArb. SUCCESSION CAUSE NO. E890 OF 2023 po/ hkc RULING Page 7 of 7
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