Corrence Gloria Kinanu Gichuru v Daphine Wangari Gichuru [2017] KEHC 1377 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 343 OF 2006

IN THE MATTER OF THE ESTATE OF ALEXANDER GICHUR M’MBUI (DECEASED)

CORRENCE GLORIA KINANU GICHURU…… PETITIONER

VERSUS

DAPHINE WANGARI GICHURU ……………… OBJECTOR

RULING

1. Before me is a Summons for rectification of the Certificate of Confirmation of grant dated 18th June, 2007.  It is brought under section 74 of the Law of Succession Act CAP 160 of the Laws of Kenya and Rule 43 of the Probate and Administration Rules.  The Petitioner seeks the following orders:-

“(a) THAT the Grant of Letters of Administration with a will annexed issued to the Petitioner in this matter on 8th June 2007, be rectified in the following respects:-

“that the LR NO. ABOGETA/U-KITHANGARI/449 be rectified to read as L.R. NO. ABOGETA/U-KITHANGARI/1175.

(b) THAT costs in this application be in the cause.”

2. The gist of the application is that paragraph 9 of the deceased’s Will dated 8th September, 2000 devised to the applicant LR NO. ABOGETA/KITHANGARI/449, that the said land was subsequently subdivided by the deceased during his lifetime to LR NOS. ABOGETA/U-KITHANGARI/1174 and 1175 but the Will remained unchanged.  The applicant further contended that LR NO. ABOGETA/U-KITHANGARI/1175 remained in the deceased’s name while LR NO. ABOGETA/U-KITHANGARI/1174 was transferred to her and that for that reason she could not be registered as the proprietor of LR NO. ABOGETA/U-KITHANGARI/1175 unless the grant herein is rectified.

3. The Application was opposed via a Replying Affidavit sworn by the Objector on 18th September, 2009 wherein she deposed, inter alia, that; she had challenged the Will because when it was made, the deceased was seriously ill and that the deceased could not have willed to the Petitioner her matrimonial property to the exclusion of the other children and herself; that according to the Will, the land which the deceased allegedly gave out was Land Parcel No. ABOGETA/U-KITHANGARI/449 which did not exist and that the Applicant cannot purport to change her documents to rhyme with what is not in the Will.  She urged the Court to reject the application.

4.  I have carefully considered this Application and the rival contentions by the parties.  When the matter came up for hearing on 8th November, 2017, there was no appearance for the Objector.  Mr. Mbogo for the Petitioner urged that the application be allowed as prayed.

5.  The grounds upon which the application is based is that the deceased bequeathed the Petitioner Plot No. 449 which he later subdivided into Plot Nos. 1174 and 1175 respectively but did not change the Will; that while he transferred Plot No. 1174 to the Petitioner, Plot No. 1175 still remained in the deceased’s name.

6. The Respondent alleges that she is the wife of the deceased and that Plot No. 1175 is where they had established their matrimonial home.  Firstly, that is an issue which she had raised in her application for revocation of grant filed on 2nd July, 2008.  That application has remained unprosecuted for close to 10 years now.  Secondly, there is a judgment on record made in the Meru CM Coourt Divorce Cause No. 25 of 2004 Alexander Gichuru M’Mbui vs Daphane Charity Wangari wherein the marriage between the deceased and the Objector was dissolved on 27th November, 2004.  In this regard, it is misleading for the Objector to refer to herself as the widow of the deceased in her replying affidavit sworn on 18th September, 2008.  That replying affidavit has not effectively displaced the Petitioner’s case for rectification of the grant.

7.  Accordingly, I find the application dated 17th April, 2009 to be meritorious and I allow the same as prayed.

DATED and DELIVERED at Meru this 7th day of December, 2017

A. MABEYA

JUDGE