In Re The Matter of the Estate of Morarji Bhanji Dhanak (Deceased) [2000] eKLR
a) How many types of limited grants are there?
I formed the impression that majority of the advocates who appeared before me were not aware of the different types of limited grants there are. Most advocates would come seeking for prayers for limited grant for filing suit yet their petition would be for letters limited for ad colligenda Bona.
From the submissions made before me, the following seems to be different types of Limited grant. These are:-
1)Limited grants ad colligenda bona
2)Limited grant ad colligenda bona defuncti
3)Limited grant administration pendente lite
4)Limited grant ad litem
In our Kenyan law of Succession, limited grants ad colligenda can only be issued by the High court of Kenya sitting at Nairobi, Mombasa, Kisumu, Nakuru and Nyeri only (see section 47, rule 36(3) LN 223/92).
The magistrates court have jurisdiction to hear succession matters only if the respective magistrate (not less than a residence magistrate) is appointed by the Hon. Chief Justice to so act on behalf of the High Court. If that magistrate is stationed where there is a High court in existence, then the High court has exclusive jurisdiction.
The act recognises that there are remote areas in Kenya where parties may wish to have estates less than Ksh.100,000/- to be administered. In such a situation a resident magistrate may issue letters of administration and grant. This would include a limited grant where the value of the estate is less than Ksh.100,000/-.
No magistrate is permitted to deal with a probate matter where the High court is established in the same station, no magistrate is allowed to hear a matter involving revocation of grant and no magistrate is permitted to issue limited grant colligenda bona unless it is of apparent urgency and only limited to collection of assets situated within his areas and for payment of debts. The estate is not to exceed Ksh.100,000/-.
The act state under section 54, one of the forms of grant as being limited grant.
"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 5th schedule."
It seems that there is an argument that section 54 states the limited grant whilst section 67 out lines its procedure. I do not think this is the position. There is most certainly a difference. This section reads:-
"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 . . . "
Under the probate and administration rules, it deals with limited grant ad colligenda Bona. Rule 36 reads as follows:
"36(1) where, owing to special circumstances the urgency of the matter is so great that it would not be possible for the court to make a full grant of representation to the person who would by law be entitled thereto in sufficient time to meet the necessities of the case, any person may apply to the court for the making of a grant of administration ad colligenda bona defucti of the estate of the deceased"
It is section 67(1) that describes the above rule.
What then is a colligenda bona defuncti? (See above).
Mr. Kaburu was able to provide the definition of this from his authorities. There are infact two words:-
i)ad colligendum
ii)ad colligenda means "For collecting; as an administrator or trustee ad colligendum".
iii)ad colligena bona defuncti means. "For collecting the goods of the deceased".
It therefore means that rule 36(1) is specifically on the collection of the deceaseds goods and preserving the same.
Ad colligenda bona under the Indian succession act:-
"where it is to the benefit of the absent or unknown next of kin, the court will direct an administrator ad colligenda bona . . . under special circumstances limited to collect the personal estate of the deceased, to give receipts for his debts or the payment of the same, renew lease of his business premises which would expire before a general grant could be but without powers to dispose of the lease..."
I am aware that the rules require that each time the court issues a limited grant ad colligenda bona defuncti it must be recorded in a register kept at the registry.
The applicant is to file Form P & A 85, petition and form P & A 19 the affidavit which is provided for under rule 12 of the probate and administration rules.
Now the advocates are not interested in collecting the goods of the deceased or to administrator the estate perhaps. What they wish to do is to obtain a grant for purposes of filing suit
. I believe they require to rely on section 54 which takes us to the 5th schedule of the act. This schedule outlines four types of limited grant.
A) Grant limited in duration - (para 1-3)
This provides for a situation where a will is lost or misplaced; in possession of a person outside Kenya or for a will that cannot be found.
A limited grant under this para may be issued pending the original will being found.
B) Grant for the use and benefit of others having right.
Where the executor is absent from Kenya; whether there is a will, letters of administration, will annexed or in a case of intestacy (see para 4-6).
Where the executors are minors or of unsound mind (See para 7,9).
Where a suit is pending touching validity of will. In this latter situation (para 10) it is a situation known as administration pendente lite. (see 3 above).
The meaning of administration pendente lite is where a grantee is appointed simply to administer the estate of the deceased during litigation. For instance, if the will of the deceased is being contested, pending the determination of that dispute the court may appoint a grantee pendente lite to continue to administer the estate so as it is not wasted. The grantee is not permitted to distribute the estate but merely manage the same pending litigation.
The grant limited ad litem (see 4 above) is one normally used for prosecuting or defending proceedings began in a court of justice. This type of grant is covered within our succession act in the 5th schedule para 11-16. It has been described as Grant for Special purposes.
C) Grant for Special Purposes
a) Where an executor is appointed for a limited purpose specified in the will (see para II). Where an executor gives authority to an Attorney specified to a particular purpose.
Where a sole surviving trustee dies leaving no general representative or one who is unable or unwilling to act as such (normally referred to as de Bonis non (see para 20 form 87 and 19 in rule 12).
Where a deceased being party to a pending suit dies and the executor or the person entitled is unable or unwilling to act - a representative requires to be appointed (see para 14).
Where the person to whom probate or letters of administration has been made is absent from Kenya, a limited grant may be given for the purpose of enjoining a party to a suit brought against the administration (see para 15).
Where it appears to the court to be necessary or correct to appoint some person not normally entitled to administer an estate or part thereof as the court thinks fit.
The other grant is Grants with exception.
D) Grants with exception
Para 17,18 and 19 provides for situation where grant be made subject to certain exceptions.
Under what rules should a person intending to file suit where the deceased having been or intended to file suit dies?
Mr. Hira argued that as the estate has remained unadministered, limited grant colligenda bona is sufficient to preserve the estate. If one applies under this grant then such a party has a right to file suit. That is what I understood the arguments submitted as being.
Mr. Kaburu on the other hand described this as administration ad litem. This is equivalent to paragraph 14 of the 5th schedule. It is
equivalent to section 222 of the Indian Succession Act 1865 (later section 251 of the same act) and section 162 of the judicature act 1925 of England. The words in all the three acts are identical. Namely, administration limited to suit:-
"When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administrator is unable or unlikely to act, letters of administration may be granted to the nominee of a party the suit, limited for the purpose of representing the deceased herein or in any other cause or suit which may be commenced in the same, or in any other court between the parties, or any other parties touching the matters at issue in the cause or suit and until a final decree shall be made therein and carried, into complete execution".
The Indian Succession Act (1865) Section 222 was applicable in Kenya. It was considered in a Mombasa High court case of Hadija v lddi 1974 EA 50 by Sir Dermont Sheridan J.
In the above case, the "defendant was appointed the personal representative of a deceased driver against whom a claim was to be made. The plaintiff filed suit seeking for the letters of administration be set aside arguing that letters can only be issued when there is a pending suit.
It was held by the high court, in interpreting section 222 of the Indian Succession Act, which is identical to para 14 of he 5th Schedule, that the appointment of a personal representative may be made even when there was no suit pending. (The case of Gibbs v Roy 85 CLJ 280 was considered).
Although this authority was dealing with a different aspect to para 14, it most certainly noted that in order to apply for a grant limited to filing suit the rule becomes applicable.
In contrast, I did rule in the estate of Nyamondi Succession cause case that the application for limited grant was not entirely correct.
A corporation filed suit against the deceased whilst she was till alive. The deceased died. Her husband had predeceased her. The only person entitled to the estate were her adult children. All of them refused to take letters of administration intestate. The limitation of time in bringing a personal representative was running out. The corporation applied, under a certificate of urgency to file an application under para 14 praying for this court to appoint the children as administrators.
I decline to do so as the rules requires that the corporation nominate a person to take up the letters limited to the suit. This
could have been the Public Trustee or even an advocate, which had not been done.
b) Procedure for Limited Grant
What I find is that advocates wishing to apply for limited grant for purposes of filing suit should come under para 14 of the 5th schedule. I would agree with Mr. Kaburu that this para applied to intending or proposed plaintiffs.
Although the act is clear on the affidavit to be filed as prescribed in rule 12, namely form P & A 19, the petition has not been prescribed to. The nearest form is the of P & A 90 which is for grant pendente lite.
The act is not silent on such situation. Where it comes to the forms to be applicable rule 70 is most helpful. It reads:-
"The forms set out in the first schedule, with such adaptations, additions and amendments as may be necessary shall, when appropriate be used in all proceeding under these Rules:-
Provided that the Chief Justice may by notice in the Gazette vary the forms and prescribes such other or additional forms as he thinks fit".
This means that any applicant may modify, adapt or add to the form.
"Section 72 of the Interpretation and General Provision Act Cap.2 provides that, save as is otherwise expressly provided, whenever any form is prescribed by any written law an instrument or document which purports to be in that form shall not be void by reason of any duration there from which does not affect the substance of the instrument or document and which is not calculate to mislead.
Although the collection of forms in this Schedule does not purport to provide for every circumstance that may arise it contains the majority of the forms which, adapted when necessary will be found to be of general use by legal practitioner and members of the public".
(Emphasis my own)
It therefore means that both the legal practitioner and members of the public may adopt the forms to suit the petition they are to bring in, if it has not been provided.
As stated earlier form P & A 90 is the nearest form to which limited grants may be adopted. I believe the parties can use this with the following modification below.
I have attempted to outline petition for letters of administration ad litem with the sole purpose of filing suit. I have also outlined the type of grant that should normally be issued and similar to form P & A 47.
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