In re Estate of Samuel Kinyanjui Waiganjo (Deceased) [2022] KEHC 27005 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 1228 OF 2006

IN THE MATTER OF THE ESTATE OF SAMUEL KINYANJUI WAIGANJO (DECEASED)

MONICA MURUGI MUNGAI..................................APPLICANT

VERSUS

JAMES KINYANJUI.....................................1ST RESPONDENT

RICHARD KUNGU......................................2ND RESPONDENT

ESTHER WAITHIRA NDENDERU...........3RD RESPONDENT

RULING

1. Under section 74 of the Law of Succession Act (Cap 160) and rule 43(1) of the Probate and Administration Rules, a grant or certificate of confirmation may be rectified by the court where it is shown by the applicant that there is an error relating to names or descriptions, or setting out the time or place of the deceased’s death (In the Matter of Geoffrey Kinuthia Nyamwinga [2013]eKLR).

2. In the instant case, the deceased Samuel Kinyanjui Waiganjo died intestate on 13th May 1999.  During his lifetime he had 10 children. One of them (the applicant) Monica Murugi Mungai petitioned for the grant of letters of administration.  The grant was issued on 30th August 2016, and confirmed on 29th January 2019.  Except for LR Mwichiringiri Block 4/709 which went to Samson Wachira absolutely, the rest of the estate was ordered to be shared equally among the 10 children of the deceased.

3. In the application dated 22nd October 2021 by the applicant under sections 74and81of theActandrules 43, 49and73of theRules, she asked that the certificate of confirmation be rectified by removing the names of her late brothers Arthur Gichuru Kinyanjui, John Brown Njenga Kinyanjui and Charles Nganga Kinyanjui who have since died.  In respect of Gichuru Kinyanjui and John Brown Njenga Kinyanjui, she seeks her name to replace theirs.  In respect of Charles Nganga Kinyanjui she wants the deceased’s widow Hannah Wanjiru Nganga to replace him as she has a grant in respect of his estate.  Her case was that she wants to distribute the estate of the deceased to the respective beneficiaries but she is stuck.  This is because, in respect of Arthur Gichuru Kinyanjui, the beneficiaries have not taken out letters of administration.  As for John Brown Njenga Kinyanjui, the beneficiaries have not agreed on how to share his estate.

4. The application was opposed by James Kinyanjui (1st respondent), Richard Kungu (2nd respondent) and Esther Waithira Ndendetu (3rd respondent).  Esther Waithira Ndenderu deponed that she is one of the widows of John Brown Njenga Kinyanjui.  The late John left two widows and adult children.  She asked that since John left two families, his entitlement should be shared equally between the families.  As she deponed so, it was clear that she was not talking for the other house or family.  Certainly, how the estate of John will be shared among his beneficiaries presents a dispute that cannot be dealt with now.

5. In short, the application cannot be allowed as what is sought is beyond the scope of section 74 of the Act and rule 43(1) of the Rules.  The application is dismissed with costs.

DATED and SIGNED this …………………. day of MARCH 2022

A.O. MUCHELULE

JUDGE

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 28TH DAY OF MARCH 2022

A.O. MUCHELULE

JUDGE