In re Estate of Late Cheleste Nguthiru Mwai – (Deceased) [2017] KEHC 2142 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

SUCC. NO.964 OF 2010

IN THE MATTER OF THE ESTATE OF LATE CHELESTE NGUTHIRU MWAI – (DECEASED)

WILFRED NDIRANGU NGUTHIRU.……. PETITIONER/APPLICANT

R U L I N G

On 25/4/2017 the applicant filed a summons for rectification of grant –

Seeking orders that: -

1. That the Hon court be pleased to amend the certificate of confirmation of grant issued on the 13th of March 2014 to the petitioner as a matter of urgency.

2. That the distribution of the deceased’s estate in the certificate of a confirmed grant now to read as follows;

i) Land Parcel no. AGUTHI/GATHAITHI/110 be share equally by the following beneficiaries;

a) Anthony Mwai Nguthiru

b) Margaret Wambui Ngahu

c) Patrick Nyaga Nguthiru

d) Wilfred Ndirangu Nguthiru

ii) That Barclays CDSC A/C no. [particulars withheld] and [particulars withheld] be transferred to Beatrice Wanjiku Nguthiru

3. That this honorable Court be pleased to change the date of death indicated in form P&A 41 as 5th March 2009 and instead to read 1st April 2008

The main grounds for the summons were that there had been a typographical error in the form P&A 41, and subsequently in the grant confirmed on 1/4/08.

When the matter was brought under certificate of urgency then, there appeared to be no urgency and I made orders that the same be fixed for hearing in the registry.  The applicant has also to provide the court with details of the CDSC Accounts referred to herein above and to confirm that they indeed belonged to the deceased.

Today a certificate of urgency has been filed yet again to support that application. The petitioner complied with my orders and the matter was fixed for 27th September 2017. However, that was during the court recess and the application was not heard.

The urgency is that one Beatrice Wanjiku Nguthiru the aged mother of the applicant requires money to cater for her medical bills and upkeep.  That the error in the confirmed grant and omission of the CDSC accounts has made it impossible to transfer the same to the beneficiaries.

The certificate of urgency is supported by the affidavit sworn by Wilfred Ndirangu Nguthiru the petitioner/applicant.

I have perused the certificate of urgency and the supporting affidavit. The matter is certified as urgent.

I have further perused the application dated 25/4/17, and the supporting affidavit sworn on the same date by the applicant.

The grant of letters of administration intestate form P&A41 shows that Cheleste Ngutheru Mwai died on 5/3/2009 yet the certificate of death dated 12/6/2008 shows that he died on 1/4/2008.

It also emerges from the affidavits that one CDSC account no.  [particulars withheld]  was omitted from the certificate of confirmation of grant issued on the 13th March 2014.

The other beneficiaries have signed a consent other rectification of the grant.    Clearly without the rectification of the grant there can be no transmission of the estate.

Section 74 of the Law of Succession Act as read with Rule 43 of the P&A rules provide for the rectification of grant by the court where there may be errors in names and descriptions of any person or thing, or the time and place of the deceased’s death

whether before or after confirmation of the grant. The court is empowered to alter and amend the grant accordingly.

The applicant has clearly demonstrated that the time of the death of the deceased was erroneously described in the grant. He has also demonstrated that there was an omission of one of the properties of the deceased, a CDSC account.

He has also demonstrated the urgency of the matter.

In the circumstances, having considered the application and the supporting affidavit and annexures, and being satisfied that it meets the requirements for rectification, I allow the same and order that the P&A 41 be rectified in the following terms:

1. That grant or form P&A 41 be amended to indicate the of death of Cheleste Nguthiru Mwai as 1st April 2008 instead of 5th March 2009.

2. That Land Parcel no. AGUTHI/GATHAITHI/110 be shared equally by the following beneficiaries;

a) Anthony Mwai Nguthiru

b) Margaret Wambui Ngahu

c) Patrick Nyaga Nguthiru

d) Wilfred Ndirangu Nguthiru

3. That Barclays CDSC A/C no. [particulars withheld] and [particulars withheld] be transferred to Beatrice Wanjiku Nguthiru

4. There are no orders as to cost.

Dated, Signed at Nyeri this 2nd Day of October 2017

Teresia Matheka

Judge

Court Assistant Harriet