What is Rectification of Grant, and When Is It Appropriate?
Rectification of a grant is a legal process under Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules, which allows the court to correct minor specific errors in a grant of representation or a certificate of confirmation. Courts have held that an error is essentially a mistake. That mistake, however, must fall within the ambit of Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules.
Under the Law of Succession Act, rectification is appropriate only where the grant contains:
- Errors in names or descriptions of persons or things;
- Errors in setting forth the time and place of the deceased’s death;
- Errors regarding the purpose of a limited grant.
Scope:
If the mistake is clerical, such as a misspelling, incorrect date, or description, rectification is the suitable remedy. Rectification does not allow substantive changes, such as the inclusion of new assets or beneficiaries, or redistribution of the estate.
What is a Review of Grant, and When Should it Be Sought?
A review of a grant is governed by Order 45 of the Civil Procedure Rules, Section 80 of the Civil Procedure Act, and is imported into succession law by Rule 63 of the Probate and Administration Rules.
Review is the appropriate remedy when:
- There is the discovery of new and important matter or evidence, which was not within the applicant’s knowledge or could not be produced at the time of the grant’s confirmation;
- There is a mistake or error apparent on the face of the record (but the error does not fall within Section 74); or
- For any other sufficient reason.
Scope:
Review allows for significant amendments, especially where new assets have been discovered or material evidence emerges after the confirmation of the grant, e.g., a share crystallized into titled land after confirmation; a bank asset discovered later, or there is an error apparent in the court’s decision.
What Are the Key Legal Provisions for Rectification and Review of Grant?
- Section 74, Law of Succession Act (Cap 160):
“Errors in names and descriptions, or in setting forth 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.” - Rule 43, Probate and Administration Rules:
Provides procedure for rectification, application by summons (Form 110), only for errors specified in Section 74. - Order 45, Civil Procedure Rules & Section 80, Civil Procedure Act:
Provide grounds and procedure for review, discovery of new evidence, mistakes, or any other sufficient reason. - Rule 63, Probate and Administration Rules:
Incorporates Civil Procedure Rules relevant to affidavits, review, and computation of time into succession practice.
How Have Kenyan Courts Distinguished Between Rectification and Review?
Key Case Law:
- In re Estate of John Omae Nyangweso (Deceased) KEHC 4924:
The court held that rectification is limited to correcting errors in names, descriptions, or minor clerical details. Introducing new assets or beneficiaries must be done by applying for review or seeking a fresh confirmation of grant.
“Rectification of a grant is limited to correction of errors in names or descriptions, or in setting out the time and place of the deceased’s death, or the purpose in a limited grant… Notably, inclusion of omitted beneficiaries or assets does not fall within the scope of rectification and must be canvassed through review or fresh confirmation proceedings.”
- In The Matter of The Estate of Geoffrey Kinuthia Nyamwinga (Deceased) KEHC e 3745 (KLR):
Justice W. Musyoka found that correcting clerical errors in property descriptions falls under rectification, but including omitted assets requires an application for review under Order 45 Civil Procedure Rules, as imported by Rule 63. The Court stated as follows: –
“A grant and a certificate of confirmation of grant are court orders taking the form of a certificate. The grant is made after the court allows the petition for a grant of representation, whether it be of letters or of probate. A certificate of confirmation of grant is issued following a successful application for confirmation of the grant. The two are not pleadings, and therefore the principles which govern their rectification are not those applying to amendment of pleadings but those that apply to amendment of court orders”.
“A court order made by a civil court can only be amended through a review application, and not through an application for amendment of pleadings. The Law of Succession Act does not provide for amendment of pleadings in succession causes, but it does provide amendment of grants. This is through either Section 74 of the Law of Succession Act to the extent provided in that provision, or through a review application through Order 45 of the Civil Procedure Rules. Order 45 was formerly Order XLV, which is one of the provisions of the Civil Procedure Rules imported into succession practice through Rule 63 of the Probate and Administration Rules”
“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 – the omission of the two properties from the confirmation application and the certificate of grant respectively.”
What Procedure Should Be Followed When Applying?
In the Family Division’s succession practice, the safe and usual form is a Summons supported by affidavit (Rule 49). Even when invoking Order 45 for review, courts note that the Civil Procedure regime is imported by Rule 63, but the form remains Summons.
Frequently Asked Questions (FAQs)
Q1: What is the difference between rectification and review of a grant in Kenyan succession law?
A1: Rectification corrects minor clerical errors under Section 74 Law of Succession Act. Review is for discoveries or substantive changes under Order 45 Civil Procedure Rules.
Q2: Can a new asset be added under rectification?
A2: No. Addition of new assets, reallocating shares, or implementing a new distribution usually exceeds s.74’s narrow confines. As such, any such changes must be sought via review, not rectification.
Q3: Which form is used for the rectification of the grant?
A3: Summons for Rectification (Form 110 accompanied by a supporting affidavit, under Rule 43 Probate and Administration Rules.
Q4: On what grounds can a grant be reviewed?
A4: Discovery of new evidence, error apparent, or any other sufficient reason per Order 45 and Section 80 Civil Procedure Act.
Q5: How fast must I move?
A5: Without unreasonable delay. For review, delays must be explained; the longer you wait after discovering the new matter, the harder it is to persuade the court under Order 45. The rule is codified in Order 45 and reiterated in recent probate rulings
Q6: How can Njaga & Co. Advocates help with succession and inheritance matters in Kenya?
A6: Njaga & Co. Advocates LLP is a premier family law firm with deep expertise in succession and inheritance law. We assist clients with everything from applying for and rectifying or reviewing grants, to securing letters of administration, drafting wills, managing estate disputes, and handling all stages of probate—offering trusted, end-to-end legal support for your family’s peace of mind.
For expert legal help with rectification or review of a confirmed grant, contact Njaga & Co. Advocates LLP, experienced succession lawyers in Kenya.
Disclaimer: This article provides general information and does not substitute legal advice on specific circumstances of any individual or organization. While the information is accurate as of the date published, we cannot guarantee it remains accurate at the time you read it or that it will stay current. Before acting on any of this information, please seek professional legal advice tailored to your situation.
