[2018] KEHC 2493 (KLR)
The court found that the applicant, as widow of the deceased, had demonstrated sufficient grounds for the issuance of both a limited grant ad litem and a limited grant colligenda bona. The court was satisfied that the ongoing business, Karen Physiotherapy Services, formed part of the deceased's estate and was at...
Source-derived case information.
- Citation
- [2018] KEHC 2493 (KLR)
- Parties
- Applicant: Margaret Nyambura Waithaka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1325 of 2018
- Procedural Posture
- Succession Cause / Ruling on Application for Limited Grant Ad Litem and Colligenda Bona
- Outcome
- Application allowed; limited grant ad litem and colligenda bona granted to the applicant.
- Legal Topics
- Limited Grant Ad Litem, Limited Grant Colligenda Bona, Estate Preservation, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Nyambura Waithaka
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Limited Grant Ad Litem and Colligenda Bona
Legal Issues
- 1 Whether the applicant should be granted a limited grant ad litem to substitute the deceased in pending litigation.
- 2 Whether the applicant should be granted a limited grant colligenda bona to manage and preserve the deceased's business pending full grant of letters of administration.
Ratio Decidendi
The court found that the applicant, as widow of the deceased, had demonstrated sufficient grounds for the issuance of both a limited grant ad litem and a limited grant colligenda bona. The court was satisfied that the ongoing business, Karen Physiotherapy Services, formed part of the deceased's estate and was at risk of going to waste if not managed. The applicant had provided all necessary documentation, including the death certificate, registration of the business, list of assets, and written consents from all children of the deceased. The court held that pending the issuance of a full grant of letters of administration intestate, it was necessary and appropriate to grant the applicant...
Court Disposition
Application allowed; limited grant ad litem and colligenda bona granted to the applicant.
Orders
- Limited grant ad litem issued to Margaret Nyambura Waithaka to prosecute/defend ELC 616 of 2008 on behalf of the estate.
- Limited grant colligenda bona issued to Margaret Nyambura Waithaka to gather and collect assets of the deceased's estate and manage Karen Physiotherapy Services as a going concern.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
IN THE MATTER OF THE ESTATE OF MARTIN FRANCIS THUKU WAITHAKA (DECEASED)
SUCCESSION CAUSE 1325 OF 2018
RULING
The Applicant, Margaret Nyambura Waithaka sought by application filed on 28th September 2018 that pending the grant of letters of administration intestate, the court issues limited grant ad litem to enable Martin Francis Thuku Waithaka (deceased) be substituted by his widow, Margaret Nyambura Waithaka in Environment and Land Case No. 616 of 2008 Martin Thuku Waithaka vs Roselyne Dola Ouko & 2 Others.
The Applicant also seeks that she is granted limited grant colligenda bona to take over and operate the Deceased’s business; the Karen Physiotherapy Services (Clinic). The deceased, Martin Francis Thuku Waithaka died on 26th April 2018, prior to that he ran the said Clinic himself. The Clinic is left unmanaged and as part of the deceased’s estate it will go to waste. The Clinic provides Physiotherapy services to patients accessing Healthcare services as an ongoing business that the deceased ran it on a day to day basis. There are employees/qualified staff employed to undertake the specialized operations of the Clinic. The workforce requires to be paid for the services offered on behalf of the Clinic hence the requirement. It is the Applicant’s intent to preserve the asset of the deceased’s estate as a viable ongoing business by providing continuous management of the Clinic pending the full grant of letters of administration intestate. The widow/applicant undertakes to provide/render full and proper account of the Clinic’s revenue and expenditure to the court and beneficiaries.
The Applicant/widow of the deceased attached the following documents to the application:-
a) Death Certificate of the deceased;
b) Copy of Originating Summons of ELC 616 of 2008;
c) Certificate of Registration of Karen Physiotherapy Services in the name of Martin Francis Thuku Waithaka (deceased).
d) List of Assets that comprise of the deceased’s estate;
e) Affidavit filed on 8th October 2018 with written consents of the children of the deceased authorizing mother/widow to obtain limited grant ad litem to pursue the deceased’s suit and limited grant colligenda bona to run the Karen Physiotherapy Services. They are;
i) Agnes Gathoni Nganga
ii) Esther Wanjiru Waithaka
iii) Marcelino Thuku Waithaka
iv) Jane Wanjiku Waithaka
v) Marygoretti Wambui Waithaka
vi) Veronica Njeri Waithaka
f) The Chief’s letter dated 23rd August, 2018.
This court is satisfied that pending obtaining full grant the circumstances outlined by the Applicant/widow of the deceased warrant the limited grant ad litem to prosecute/defend the ELC 616 of 2008 on behalf of the estate of Martin Francis Thuku Waithaka (Deceased). The court also grants the widow of the deceased Margaret Nyambura Waithaka limited grant colligenda bona to gather and collect assets of the deceased’s estate and in the process manage Karen Physiotherapy Services as one of the assets of the deceased’s estate and preserve it as a going concern pending the grant of letters of administration intestate.
The Applicant/widow of the deceased shall obtain a full grant under Section 67 Laws of Succession Act Cap 160 within 120 days from today.
DELIVERED DATED SIGNED IN OPEN COURT ON 11TH OCTOBER, 2018.
M.W.MUIGAI
JUDGE
IN THE PRESENCE OF;
Mr. Oyoo with Mr. Odhiambo for the Applicant