[2022] KEHC 13975 (KLR)

In re Estate of Jackin Murithi Samson (Deceased) (Succession Cause E025 of 2022) [2022] KEHC 13975 (KLR) (11 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13975 (KLR)

Republic of Kenya

In the High Court at Chuka

Succession Cause E025 of 2022

LW Gitari, J

October 11, 2022

IN THE MATTER OF THE ESTATE OF JACKIN MURITHI SAMSON- (DECEASED)

In the matter of

Lucy Karimi Murithi

Applicant

Ruling

1. This ruling pertains to an application by Lucy Karimi Muriithi the Petitioner herein who has filed a petition dated April 25, 2022. The Petitioner has presented the petition in her capacity as the wife of the deceased. The Petitioner seeks for an order that the grant of letters of administration ad litem--be issued and be limited for the purpose of filing/defending a suit in the Environment and Land court at Chuka against a trespasser on the Estate of the deceased.1. In her supporting affidavit sworn on April 25, 2022, the Petitioner depones that the deceased is her husband and that he passed away on November 22, 1995 after he suffered a cardiac arrest due to cerebral malaria. He is survived by the petitioner her son Brian Gitonga Murithi. It is further averred that the deceased died intestate and is the registered owner of land Parcel No LR No Karingani/Ndagani/6960. According to the applicant, she wishes to instate a suit against known person who has trespassed on the deceased’s parcel of land.2. This petition was filed under a certificate of urgency but the court declined to certify it as urgent for the reasons that the deceased died on November 22, 1995 and the applicant has not given any reason to why she has not obtained a full grant of letters of administration in the estate of the deceased. The court also noted that the title deed was issued on February 23, 2009 long after the death of the deceased, a fact that raised a question as to whether the land was part of the estate of the deceased at the time of his death. The court therefore ordered that the application be heard in open court.3. When the matter came up for hearing in open court, the applicant through her advocate submitted that she had not filed the petition as she did not know what to do.4. I have considered the petition, the supporting affidavit and the submissions. The issue which this court has to determine is whether the grant of letters of administration ad litem should issue.5. There are four types of limited grant. These are:-1. Limited Grant ad Colligenda Bona.2. Limited Grant And Colligenda Bona defuncti.3. Limited Grant pendente lite.4. Limited Grant ad litem

2. These grants are provided for under Section 54 of the Law of Succession Act. The Section provides:-"A court may, according to the circumstances of each case, limit a grant of representation which it has jurisdiction to make in any of the forms described in the Fifth Schedule.”

3. The Section gives the court discretion to issue a limited grant depending on the circumstances of the case. It is for the court to consider whether there are special circumstances to warrant to issue a limited as such a grant gives the party a lee way to obtain a grant which has avoided the set procedures for obtaining a grant. Section 67 of the Act provides:"(1)No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for the grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired.(2)A notice under subsection (1) shall be exhibited conspicuously in the court-house, and also published in such other manner as the court directs.”See also Rule 36 of the Probate and Administration Rules.

4. A limited grant is therefore issued for collection and preservation of assets. The applicant seeks to obtain a limited grant for the purpose of filing a suit against trespassers on what she deposes is the estate of the deceased. Two issues then arise. As I observed earlier when dealing with the certificate or urgency, the applicant has annexed a title deed which was issued long after the deceased died. The deceased as can be seen from the death certificate which is annexed to this petition died on November 22, 1995. The title deed was issued on February 23, 2009. The Act at Section 3 defines Estate as follows:-“ means the free property of the deceased person.” It further defines ‘free property’ to mean-in relation to a deceased person, means the property of which the person has legally competent freely to dispose during this lifetime and in respect of which his interest has not been terminated by his death.”

5. The applicant has not shown that land in question formed the free property of the deceased at the time of his death. The second issue is that the applicant is seeking a limited grant to file a suit against some trespassers. The applicant is not seeking a grant to prosecute the said trespassers. My view is that filing a suit and prosecuting a suit are two different activities. Obtaining a grant to file a suit does not allow a party to prosecute it. She would have to seek leave to prosecute the suit so filed. I find that it is a futile exercise to obtain a grant to file a suit without a grant allowing a party to prosecute it.

6. See Troustic Union International –v- Jane Mbeyu & Another. A limited grant is issued for a special or particular purpose and therefore a party cannot represent an estate of the deceased without having obtained a grant for that purpose. Under Section 67 of the Act (supra) no grant of representation other than a limited grant for collection and preservation of assets shall be made until there has been published a notice of the application of the grant. The grant the applicant is seeking is not for these purposes. The Petitioner in this matter has priority in filing the succession in the estate of the deceased and she had the right to petition the court for a full grant from the time of the deceased.

Conclusion: 7. I note that the deceased died long time ago. The nature of the application is such that if the grant is issued it will not follow the process of publishing it in the Kenya Gazette so that parties who may be affected can file objections. This will lead to a multiplicity of suits and yet the grant only seeks to file a suit/defend without right to prosecute. It is my view that a limited grant can only be issued under special circumstances which I find is not the case in the absence of an explanation for the delay in obtaining a full grant. The issue as to whether the land the subject matter of the petition formed the estate of the deceased calls on the petitioner to shed more light on it.

8. In the circumstances, I decline to issue a limited grant. The applicant has priority to obtain letters of administration which she should do by obtaining a grant of letters of administration intestate. I dismiss the petition.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 11TH DAY OF OCTOBER 2022. L.W. GITARIJUDGE