In re Estate of the Late Kipkemei arap Songok (Deceased) (Succession Cause 3 of 2015) [2025] KEHC 13861 (KLR) (6 October 2025) (Ruling)
Neutral citation:
[2025] KEHC 13861 (KLR)
Republic of Kenya
Succession Cause 3 of 2015
RN Nyakundi, J
October 6, 2025
IN THE MATTER OF THE ESTATE OF THE LATE KIPKEMEI ARAP SONGOK (DECEASED)
In the matter of
Sarah Jebet Koskei
1st Applicant
Jayden Kipchirchir Sile
2nd Applicant
Ruling
1.What is pending before this court for determination is Summons for Rectification of Grant brought pursuant to section 74 of the Law of Succession Act and Rule 40 & 43 of the Probate and Administration Rules where the Applicant is seeking the following orders: -a.Spentb.That the Rectified Certificate of Confirmation of Grant issued to Orpha Chepkorir Bitok, ChristopherMetto, Joseph Kemei and William Kiprop Sile on 5th day of October 2015 and confirmed on 7th day of September 2015 be rectified and reviewed.c.That the name of Christopherin item 10 and 25 in the schedule of distribution be substituted with name of Jayden Kipcirchir Sile.d.That costs of this application shall be provided for.
2.The Summons is made on the following grounds on the face of it among others:a.Jayden Kipchirchir Sile is now of age of majority and therefore there is need for substitution.b.That the Applicants are the widow and son of the deceased beneficiary one Wilson Silec.That there is need to substitute ChristopherMetto who is the brother to the late Wilson Sile with Jayden Kipchirchir Sile who is the son to the deceased and has now attained the age of majority.d.In view of the foregoing, there is need for rectification of the Certificate of Confirmation of Grant.
3.The summons is supported by the annexed affidavit sworn by Jayden Kipchirchir Sile who deponed as follows;a.That I am the son of Sarah Jebet Koskei and Wilson Sile (now deceased) who was one of the beneficiaries of the Estate of the late Kipkemei Arap Songok.b.That in the rectified Certificate of Confirmation of Grant, both ChristopherMetto and Sarah Jebet Koskei were appointed to jointly administer the estate of my late father in item no 10 and 25 in the schedule of distribution of property constituting motor vehicle registration number KAL 578A Peugot 504 Pick Up (equal share) and Moiben Farm L.R. 66318 measuring 81 Acres.c.That I am now 19 years old and thus I have the capacity to jointly administer the estate my late dad together with my mother Sarah Jebet Koskei in accordance with the law.d.That in order for the affairs of my late dad to be managed well, it is prudent that I be included in this estate in place of ChristopherMetto.e.That it is therefore my wish that the name of ChristopherMetto be substituted with my name Jayden Kipchirchir Sile in items number 10 and 25 in the rectified schedule mode of distribution of the estate of Kipkemei Arap Songok.f.That this application if granted will not interfere with the estate because my interest is only at replacing one ChristopherMetto as an administrator to my father’s estate who was already a beneficiary and his share in the estate was ascertained and already given to him.g.That this application is made in good faith and in the interest of justice.
4.The Summons are further supported by the annexed affidavit dated 28th April 2025 sworn by Sarah Jebet Koskei, the 1st Applicant herein who averred as follows;a.That I am one of the beneficiaries to this estate having been substituted in place of my late husband.b.That at the time I was substituted in place of my late husband all my children were minors and therefore one of my brothers –in- law one ChristopherMetto was made a Co-beneficiary with me.c.That my eldest son has now become of age and he is desirous of being made a co-beneficiary with me in place of ChristopherMetto.d.That I have no objection to having my son Jayden Kipchirchir Sile to be made a co-beneficiary with me.
Analysis and Determination
5.I have read and considered the summons and the annexed affidavits in support of the same. There is one sole issue manifest for determination as follows;
Whether the summons for rectification is merited?
6.This Honourable Court is alive to the fact that the rectification of grants is provided for in section 74 of the Law of Succession Act.
7.Rule 43 (1) of the Probate and Administration Rules, by which the substantive provision of Section 74 of the Law of Succession Act is enforced, instructively provides:
8.In particular, what these provisions mean is that errors may be rectified by 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.
9.A clear reading of the record in this succession cause indicates that the grant of letters of administration intestate to the estate of the deceased herein were issued to Orpha Chepkorir Bitok, ChristopherMetto, Joseph Kemei SILE and William Kiprop Sile on 12th October 2025 and confirmed on 19th October 2018. One of the beneficiaries therein, one Wilson Sile whom this application is linked to passed away on 18th October 2021. On 12th February 2024, the 1st Applicant who is the widow to Wilson Sile (deceased) and one of the beneficiaries herein ChristopherMetto filed summons for rectification seeking the orders that: the grant of letters of letters of administration issued to Orpha Chepkorir Bitok, ChristopherMetto, Joseph Kemei SILE and William Kiprop Sile on 12th October 2025 and confirmed on 19th October 2018 be rectified and be reviewed; the name of Wilson Sile be substituted with the names of Sarah Jebet Koskei and ChristopherMetto. On the grounds in support of that application, the applicants had stated that there is need to substitute the deceased with the widow and brother who are only immediate relatives to the estate of Wilson Sile. Accordingly, a rectified Certificate of Confirmation of Grant dated 19th April 2024 was issued by this Honourable Court with the name Sarah Jebet Koskei and ChristopherMetto in items number 10 and 25 of the schedule mode of distribution.
10.The statutory hierarchy on intestacy is provided in the Law of Succession Act which sets out who takes where a person dies intestate. Where the intestate left a surviving spouse and children, the spouse and children are the persons entitled to the estate as provided in section 35 of the Law of Succession Act. A brother a brother will only take if there is no spouse or issue following the structure laid out in section 39 of the Law of Succession Act. From the above, I take not that there was an error of law apparent on the record because he substitution of ChristopherMetto in place of the deceased Wilson Sile was wrong in law. The widow Sarah Jebet Koskei and any children) are the natural statutory beneficiaries on intestacy. I note that a brother only inherits if there is no surviving spouse or issue. Further, the step taken a rectified certificate that effects that substitution appears to be a substantive change to distribution and not the kind of clerical/minor error that section 74 of the Law of Succession Act and the rectification rule permit hence, it should have been dealt with by review of the confirmation/distribution orders not by a mere rectification of the certificate.
11.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. This also applies to the instant case herein.
12.Review of decisions of a probate court is governed by Rule 63 of the Probate and Administration Rules, which provides as follows: -
13.In John Mundia Njoroge & 9 Others v Cecilia Muthoni Njoroge & Another [2016] eKLR, the court cited Rule 63 of the Probate and Administration Rules, and then stated as follows: -
14.Starting with the issue for Review, Order 45 provides for three circumstances under which an order for review can be made. To be successful, the applicant must demonstrate to the court that there has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed. Secondly, he must demonstrate to the court that there has been some mistake or error apparent on the face of the record and thirdly, an application for review can be made for any other sufficient reason. On the issue of an error or mistake apparent on the face of the record it is clear that, the error the subject of the application ought to be so glaring that there can possibly be no debate about it. An error which has to be established by a long-drawn out process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record (See Muyondi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243 and Paul Mwaniki v National Hospital Insurance Fund Board of Management [2020] eKLR).
15.The Court of Appeal when addressing the issue of discovery of new evidence as ground for allowing a review application had the occasion to pronounce itself in Rosa Kaiza v Angelo Mpanju Kaiza [2009] eKLR where the court quoting from a commentary by Mulla on similar provision of the Indian Civil Procedure Code 15th Edition at page 2726 stated;
16.It is not in dispute that the rectified Certificate of Confirmation of Grant issued on 19th April 2024 contains the name of ChristopherMetto in items 10 and 25 alongside Sarah Jebet Koskei, to administer the share of the late Wilson Sile. From the affidavits, it is clear that Christopherwas appointed only as a stop-gap administrator since Jayden, the true beneficiary, was a minor at the time. Jayden has now attained the age of 19 years as demonstrated by his Identity Card. His right to represent his late father’s interest in the estate is not contested. Both he and his mother have expressly consented to his substitution. The question is whether this is a case of rectification or review. Strictly speaking, substitution of a name in the Certificate of Confirmation of Grant once the true beneficiary has attained majority is more than a clerical error; it is a form of review of the certificate to reflect the proper beneficiary.
17.However, the position when the rectification was first done in April 2024 was necessitated by the grounds that: Wilson Sile had died hence the need for substitution; that the Applicants are the widow and brother of the deceased beneficiary; that there is need to substitute the deceased with the Widow and brother who are the only immediate relatives to the estate of Wilson Sile (now deceased) and that the certificate of Confirmation of Grant has an error on the description of the property at items 4 and 18 of the schedule of distribution and should be rectified to read Sergoit/Kelji Block 1(Ngochoi)/12.
18.I note that presently, at the time Wilson Sile died, his children were minors. Because of that, the widow (Sarah) and Wilson’s brother (Christopher) were substituted to safeguard Wilson’s entitlement. That explains how Christopher’s name ended up in the rectified certificate of confirmation of grant. However, there is a discovery of new evidence on record in that Jayden Kipchirchir Sile has now attained the age of majority 19 years old and has produced an ID card in proof. This fact was not in existence at the time of the earlier rectification and therefore could not have been raised.
19.For the foregoing reasons invoking the inherent powers of the court in section 47 of the Law of Succession Act and in the interests of justice, I accordingly order that:a.The Certificate of Confirmation of Grant issued on 5th October 2015 and confirmed on 7th September 2015 and rectified on 19th April 2021 be and is hereby reviewed.b.The name ChristopherMetto appearing in items 10 and 25 of the schedule of distribution shall be substituted with Jayden Kipchirchir Sile.c.The rectified Certificate of Confirmation of Grant shall issue forthwith.d.There shall be no order as to costs.e.It is so ordered.
DATED, SIGNED AND DELIVERED VIA CTS AND EMAIL AT ELDORET THIS 6TH DAY OF OCTOBER 2025.…………………………………………….R. NYAKUNDIJUDGE