In re Estate of Wanjiru Peris Kibera Mburu [2017] eKLR

Kenya Law

Automated Summary

Key Facts

The High Court of Kenya addressed an application by Samuel Gathuru Mburu to amend the Certificate of Confirmation of Grant for the estate of Wanjiru Peris Kibera Mburu. The applicant sought to rectify the certificate to name the 'Mburu Samuel Gathuru Family Trust' as the sole beneficiary of the entire estate, including shares in Co-operative Bank of Kenya Limited and Safaricom Limited, proceeds from the deceased's National Social Security Fund (NSSF) account, and dividends from the shares. The court initially dismissed the request to 'transfer' assets to the trust but later rectified the certificate to reflect the trust as the sole beneficiary, aligning with the consents of the remaining dependants (Watiri Mburu, Gathuru Mburu, Muthoni Mburu, and Nyambura Mburu) dated October 2015. The ruling was delivered on 12th April 2017, following an amended summons filed on 14th March 2017.

Deceased Name

Wanjiru Peris Kibera Mburu

Issues

  • The court ruled on the inclusion of previously omitted assets in the Certificate of Confirmation, specifically the deceased's shares in Co-operative Bank and Safaricom, proceeds from the National Social Security Fund (NSSF) account, and dividends from those shares. These were rectified to ensure the asset schedule accurately reflected all entitlements.
  • The court considered the challenge posed by the deceased's share holdings in Co-operative Bank and Safaricom, which varied over time due to rights issues. It ruled that the Certificate should be rectified to include all shares held or to the deceased's account, acknowledging the need for flexibility in reflecting these changes.
  • The court addressed the issue of whether the Certificate of Confirmation of Grant should be rectified to name the Mburu Samuel Gathuru Family Trust as the sole beneficiary of the deceased's estate, correcting an error that listed the individual applicant as the beneficiary. The court acknowledged the beneficiaries' consents and the intent expressed in the Trust Deed to align the Certificate with the Trust's status as the sole beneficiary.
  • The court clarified that it could rectify errors in the Certificate of Confirmation (e.g., beneficiary and asset details) under Section 74 of the Probate and Administration Rules but lacked jurisdiction to directly transfer assets to the Trust. The applicant was directed to handle asset transfers through administrative processes post-confirmation.

Holdings

  • The Certificate of Confirmation of Grant was further rectified to name the MBURU SAMUEL GATHURU FAMILY TRUST as the sole beneficiary of the entire Estate, aligning with the beneficiaries' prior consents and the interests of justice.
  • The Court dismissed the application to transfer the assets to the MBURU SAMUEL GATHURU FAMILY TRUST, stating it lacks jurisdiction to effect such transfers and that distribution should occur through the Administrator or Beneficiaries.
  • The Certificate of Confirmation of Grant was rectified to include all shares and dividends held by the Deceased in Co-operative Bank of Kenya Limited and Safaricom Limited, as well as proceeds from her National Social Security Fund account, in the Schedule of Assets.

Remedies

  • The Certificate of Confirmation is rectified to name the MBURU SAMUEL GATHURU FAMILY TRUST as the sole beneficiary of the entirety of the Estate, reflecting the beneficiaries' original understanding and consent.
  • The court dismisses the application for the Court to transfer the assets to the Trust, clarifying that any transfer of estate assets after confirmation must be executed by the Administrator and/or Beneficiaries through appropriate means.
  • The Certificate of Confirmation is rectified to include all shares held by the Deceased or to her account in Co-operative Bank of Kenya Limited and Safaricom Limited, as well as the proceeds of her National Social Security Fund account and dividends from the shares.

Will Type

Other

Probate Status

Grant of Letters of Administration issued on 24th March 2015, confirmed on 23rd February 2016, and rectified on 12th April 2017 to correct the beneficiary and include omitted assets.

Legal Principles

The court relied on Rule 43 and Section 74 of the Probate and Administration Rules to rectify errors in the Certificate of Confirmation of Grant, including incorrect beneficiary designation and omitted assets. It emphasized that rectification is limited to correcting errors in names, descriptions, or asset schedules, and clarified that the court cannot transfer assets but can confirm their distribution to the Family Trust as per beneficiaries' consents.

Succession Regime

Common-law testate succession through a family trust as per the deceased's wishes

Executor Name

Samuel Gathuru Mburu

Cited Statute

Probate and Administration Act

Executor Appointment

Administrator appointed via Letters of Administration issued on 24th March 2015

Passage Text

  • The Application for the Court to transfer the assets to the Trust is dismissed. Any transfer to the Estate is to be made after confirmed grant is to be made by the Administrator and/or Beneficiaries in the appropriate way.
  • It is further Ordered on reviews that the Certificate of Confirmation of Grant be rectified to name the sole beneficiary of the entirety of the Estate as the MBURU SAMUEL GATHURU FAMILY TRUST.
  • The Certificate of Confirmation be rectified to include the assets set out above, namely Co-operative Bank Limited and Safaricom Limited Shares dividends.

Beneficiary Classes

  • Child / Issue
  • Spouse / Civil Partner