[2019] KEHC 11042 (KLR)
The court found that the application for a limited grant ad colligenda bona was inappropriate because there were already substantive succession proceedings pending in the High Court at Kiambu, where the respondent had filed a petition for letters of administration intestate and issued a citation to the...
Source-derived case information.
- Citation
- [2019] KEHC 11042 (KLR)
- Parties
- Applicant: Phyllis Wangeci Kimaru; Applicant: Wilson Gitonga Kimaru; Respondent: Mary Wambui Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 973 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Limited Grant Ad Colligenda Bona
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule, A Ali-Aroni
- Legal Topics
- Succession, Limited Grant Ad Colligenda Bona, Abuse of Process, Jurisdiction, Beneficiary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Phyllis Wangeci Kimaru
Applicant
Wilson Gitonga Kimaru
Applicant
Mary Wambui Njoroge
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Limited Grant Ad Colligenda Bona
Legal Issues
- 1 Whether the applicants are entitled to a limited grant ad colligenda bona for the estate of the deceased.
- 2 Whether the existence of parallel proceedings in different courts constitutes an abuse of process.
- 3 Whether the respondent is lawfully managing the deceased's estate and providing for the beneficiaries.
Ratio Decidendi
The court found that the application for a limited grant ad colligenda bona was inappropriate because there were already substantive succession proceedings pending in the High Court at Kiambu, where the respondent had filed a petition for letters of administration intestate and issued a citation to the beneficiaries. The existence of parallel proceedings over the same estate in different courts constituted an abuse of process. The court emphasized that a limited grant ad colligenda bona should not be used where the court is required to resolve contentious and substantive issues regarding the estate, such as the status of the respondent as a widow or the entitlement to the grant. The...
Court Disposition
application dismissed with costs
Orders
- The application for a limited grant ad colligenda bona is dismissed with costs.
- The applicants and all other beneficiaries are directed to respond to the citation before the High Court at Kiambu.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
CIVIL CASE NO. 973 OF 2017
IN THE MATTER OF THE ESTATE OF DAVID CHEGE JASAN (DECEASED)
PHYLLIS WANGECI KIMARU...........1ST APPLICANT
WILSON GITONGA KIMARU............2ND APPLICANT
VERSUS
MARY WAMBUI NJOROGE.......... ........RESPONDENT
RULING
1. The deceased died intestate on 26th May 2017. He was operating a business of making and selling concrete products. At the time of his death he was staying with the respondent Mary Wambui Njoroge on LR Kiambaa/Thindigua/3709. He left three children (the 1st applicant Phyllis Wangeci Kimaru and two minors). The children live with the deceased’s mother Phyllis Wangeci Kimaru. The deceased left a brother Wilson Gitonga Kimaru (2nd applicant).
2. The applicants have applied for a limited grant ad colligenda bona under section 67(1) of the Law of Succession Act (Cap 160) and rule 36 of the Probate and Administration Rules. They seek to be allowed to collect and preserve the estate of the deceased. The minor children of the deceased are in school. The grant is required to enable the payment of the fees. The deceased’s children were being provided for by him before he died. They state that they lack that provision. The case of the applicants is that the deceased’s estate is being wasted and intermeddled with by the respondent who is not even paying the employees of the business firm.
3. The respondent opposed the application. Her case was that she is the widow of the deceased; that the deceased married her customarily in 2001. She acknowledges the deceased’s children. She stated that she and the deceased were operating the business above. Upon his death she has continued to manage the business, and pays the employees. She further stated that she pays fees for the deceased’s children. She filed a petition for the grant of letters of administration intestate in High Court Succession Case No. 139 of 2017at Kiambu. She caused a citation to issue to the children of the deceased. That was when the present application was filed.
4. It is not lawful that in respect of one deceased the beneficiaries are litigating over his estate in two different courts. This is why I consider the present application an abuse of the process of the court, and hereby dismiss it with costs. This is done to allow for the matter before the High Court at Kiambu to proceed. It will determine who among the parties is entitled to a grant.
5. The applicant herein (and all other beneficiaries) should respond to the citation before the Kiambu Court, where a decision will be made as who has the capacity to petition for the full grant. The court at Kiambu will, among other things, determine whether or not the respondent was a widow of the deceased. It will determine who among the parties is entitled to a grant.
6. The reason I cannot allow this application is because an application for a limited grant ad colligenda bona is not meant to be sought where the court will be asked to determine weighty and contentious issues regarding the estate of a deceased (HC Succession Cause Case Ad Colligenda bona Cause No. 11‘A’ of 2011 In the Matter of the Estate of Grace Wairimu Kamau (Deceased)).
DATED and SIGNED at NAIROBI this 5TH day of FEBRUARY 2019.
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at NAIROBI this 12TH day of FEBRUARY 2019.
ALI-ARONI
JUDGE