In re Estate of Moses Kitharari Iribi alias Moses Kitharari - Deceased (Succession Cause 143 of 1999) [2026] KEHC 985 (KLR) (29 January 2026) (Ruling)
Neutral citation:
[2026] KEHC 985 (KLR)
Republic of Kenya
Succession Cause 143 of 1999
HM Nyaga, J
January 29, 2026
IN THE MATTER OF THE ESTATE OF
M K I alias M K-
(DECEASED
Between
Agnes Kanyua Moses
Petitioner
and
Tabitha Kaburi Moses
1st Objector
Anjelina Kaithi Moses
2nd Objector
Ruling
1.The matter comes up for ruling on the application dated 12th March 2024 seeking the following orders:a.That this application be certified extremely urgent and it be heard on priority basis.b.That the Honourable Court be pleased to amend the grant to rectify the names of A K M, T K and J M M to read as is in their identity cards.c.That the Honourable Court be pleased to rectify the grant confirmed on 6/12/2018 in terms of paragraph 10 of the supporting affidavit and confirm the same.d.That the honourable court be pleased to lift all inhibitions/restrictions/cautions registered against LR. NO.S. Tharaka/tunyai ‘a’/856 And/or Its Unlawful Subdivisions Lr No. S. Tharaka/tunyai ‘A’/2129, 2130 and 2131.e.That costs of this application be provided for.
2.The application is propped by the grounds set out on its face and is supported by the affidavit sworn by the applicant on even date.
3.In a nutshell, it is the applicant’s case that the grant herein was confirmed on 6th December 2018. That the names of A K M, T K and J M M were erroneously indicated in the grant and they need to be rectified.
4.It is further averred that the applicant has been unable to implement the grant because the petitioner colluded with her cohort and instituted Marimanti ELC case No. 3 of 2019, which has constrained dealings within the estate. That the said case was dismissed in November 2023.
5.It is further averred that the applicant with the other beneficiaries of property known as S. Tharaka/Tunyai ‘A’/856 sold part of their shares to a third party to finance the suit, subsistence and other costs incurred. That the court ordered the stated parcel of land be shared equally among specific beneficiaries numbering six (6). That it makes it difficult to excise 3.50 acres to the purchaser in the circumstances.
6.The applicant thus prays that she holds the purchaser’s share of the estate for ease in excision and transfer and the balance can be shared equally among other beneficiaries.
7.The applicant prays that in order to implement this grant the inhibition orders against the property listed in paragraph 5(k) of the application be lifted.
8.The applicant further prays that the grant be rectified and be confirmed in terms of paragraph 10 of the supporting affidavit.
9.The petitioner did not file a response to the application.
10.M M K and P M K, who are beneficiaries in respect to land parcel No. S. Tharaka/Tunyai /856 filed grounds of opposition.
11.The two beneficiaries state that the application is seeking to redistribute the estate and not rectifying any error. That the beneficiary of the 3 acres being deducted from the beneficiaries is their advocate, hence there is a conflict of interest.
12.The parties filed their respective submissions.
13.For the applicants, it was submitted that the application does not affect the share of the petitioner who has been the biggest impediment to the implementation of the grant.
14.It was further submitted that the two beneficiaries represented by Ms. Nelima were already given five (5) acres each and are not affected by the orders sought. Therefore, it is argued, there is no basis for their opposition.
15.It was also submitted that the parties who are affected by the orders sought have given their consent, which was annexed to the application.
16.On the allegations of a conflict of interest, it is submitted that no document has been tendered to prove them.
17.It was further submitted that in the absence of a replying affidavit, there is no opposition to the factual matters raised and as such the application ought to be allowed as unopposed. Cited in support of this submission were the following cases:
- Car Importers Association of Kenya vs County Government of Mombasa (2021) e KLR,
- Kennedy Otieno Opiyo vs Kengen (2010) e KLR
- Faustina Njeru Njoka Vs Kimunye Tea Factory (2022) e KLR
18.The two beneficiaries submitted that what the applicant has sought is not a rectification but a review of the grant and alteration of the mode of distribution.
19.That the applicant had no authority to sell any part of the estate, save with the consent of the court and that the application seeks to have the illegal sale sanctioned by the court.
20.Cited in support of their submissions was Re estate of Charles Kibe Karanja (deceased) 2015 KEHC 2067 (KLR).
21.The grant herein was confirmed. A certificate of confirmation of a grant was issued by the court on 6th December 2018 as follows:Name Description of Property Share of HeirS. Tharaka/tunyai ‘A’/856M M K 5 AcresM K 5 AcresT K MA K MT K M 12 Acres EquallyJ M KM M MM K MS. THARAKA/TUNYAI’A’/261C T 3.50 AcresJ N 3.50 AcresJ M 3.50 Acres
22.A look at the application shows that it has several limbs. The first limb seeks to rectify the manner of the beneficiaries as follows:a.A K M to A K Mb.T K M to T Kc.J M K to J M M.
23.It is said that the rectification sought is to reflect their names as set out in their identity cards. There is no averment that the names in question refer to different people.
24.Section 74 of the Law of Succession Act provides as follows: Errors in names and descriptions, or in setting fourth the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.
25.In my view, the correction sought in respect of the three names is actually one that is contemplated by that provision of the law.
26.In the 2nd limb of her application, the applicant has sought to have the grant “rectified” and to be in terms set out on paragraph 10 of her affidavit. The proposed rectification is in regard to land parcel S. Tharaka ‘A’/856. I have looked at the proposed rectification and in agreement with the two beneficiaries, I find that the orders sought amount to alteration of the mode of distribution. Therefore, that is not just a rectification sought under section 74 of the Act.
27.In Re estate of Charles Kibe (deceased) (supra) the court dealt with how an application for rectification of a grant ought to be dealt with. It was held as follows:
28.Similarly, in re Estate of Jonah Kiprotich arap Tuwei (Deceased) [2025] KEHC 8164 (KLR) the court held as follows regarding such an application;
29.In my view then, the proposed redistribution of the that particular parcel of land cannot be made without a proper application to review the grant. The affected parties are at liberty to so apply, provided the same does not alter the share or entitlement of the other beneficiaries, including the two who responded to the application.
30.The claims that it is the advocate who is being made a beneficiary have not been substantiated, and they are disregarded.
31.The 3rd limb is in respect to prayer 4 of the application. The same seeks to lift all inhibitions/restrictions against the title to land parcel S. Tharaka/Tunyai/856 and its subdivisions. The court ordered the land to revert to the original title in the name of the deceased. I think that the lifting of the inhibitions is imperative in the implementation of the grant.
32.In conclusion, I allow prayers 2 and 4 of the application.
33.For the reasons provided hereinabove, prayer 3 is declined.
34.Each party to bear its own costs.
DATED, SIGNED AND DELIVERED AT MERU THIS 29THDAY OF JANUARY 2026.H. M. NYAGAJUDGE