In re Estate of Ndunda Kitolo Kithana (Deceased) [2016] KEHC 739 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 377 OF 2012

IN THE MATTER OF THE ESTATE OF NDUNDA KITOLO KITHANA – DECEASED

AND

IN THE MATTER OF AN APPLICATION FOR RECTIFICATION OF GRANT

BY:

JOSHUA MUINDE KITOLO …..….....…….1ST PETITIONERS/APPLICANTS

BEATRICE MWANZIA ……………...……2ND PETITIONERS/APPLICANTS

NGEI NDUNDA …………………………..3RD PETITIONERS/APPLICANTS

MUTINDA WAMBUA …………....……….4TH PETITIONERS/APPLICANTS

RULING OF THE COURT

1. The Summons for Rectification of Grant before the court is dated 9th December, 2015 and filed herein on 3rd February, 2016. The application seeks the following orders;

a. That the schedule in the Certificate of Confirmation of Grant issued to Joshua Muinde Kitolo, Beatrice Mwanzia, Ngei Ndunda and Mutinda Wambua on 25th July, 2014 be rectified in regards to Part II to read that the ownership of Plot No. 34 Kathiani revert to Joshua Muinde KitoloandLucas Mwendwa Muindi, specifically, upon termination of the contract by Safaricom Company Ltd.

b. That the Plot No. 34 Kathiani now be hereby confirmed to Joshua Muinde KitoloandLucas Mwendwa Muindi, specifically.

c. That costs of this application be provided for.

2. The application is supported by affidavit of Joshua Muinde Kitolo sworn on 9th December, 2015. The applicant’s case is that a Certificate of Confirmation of Grant was issued by this court to Joshua Muinde Kitolo, Beatrice Mwanzia, Ngei Ndunda & Mutinda Wambuaon 24th July, 2014. In the Schedule annexed to the Certificate of Confirmation of Granted a genuine mistake was made therein at part II whereby it was not specified that the ownership of Plot No. 34 Kathiani was to revert to Joshua Muinde Kitolo andLucas Mwendwa Muindi, specifically, upon termination of the contract by Safaricom Company Ltd. The contract has since terminated and the said Joshua Muinde Kitoloand Lucas Mwendwa Muindinow wish to have Plot No. 34 Kathiani confirmed in their name. The same cannot be confirmed without the orders of this court. The said plot No. 34 Kathiani be confirmed to Joshua Muinde KitoloandLucas Mwendwa Muindi. It is imperative that the sought orders of rectification be granted so as to enable the applicants wholly administer the estate of the deceased and to have the said Plot No. 34 Kathiani registered in the names of Joshua Muinde KitoloandLucas Mwendwa Muindi, the applicants herein.

3. The application is not opposed and is supported by the four administrators. I allow the application in the following terms;

b. That the Plot No. 34 Kathiani now be hereby confirmed to Joshua Muinde KitoloandLucas Mwendwa Muindi, specifically.

c. That costs of this application shall be in the cause.

DATED AND DELIVERED AT MACHAKOS THIS 22NDDAY OF NOVEMBER, 2016.

E. OGOLA

JUDGE

In the presence of;

Mr. Kyalo holding brief for M/S Wambua for applicant

Court Assistant – Mr. Munyao