Wilfred Kimathi Gitobu & 1 other v Magdalene Muthoni Mukindia

5. The applicant averred that she was the widow of the deceased. That the respondents, who were the grandchildren of the deceased had no capacity to file the cause, that they did not disclose the full facts and did not seek her consent. 6. The lower court delivered a ruling on 8th March, 2023 and dismissed the said application. 7. Aggrieved by the Lower court’s ruling, the appellant filed the Memorandum of appeal dated 6th April, 2023. The Appeal 8. 9. The Memorandum of Appeal set out the following grounds: a. The learned magistrate erred in both law and fact by holding that the respondents had the capacity to file for grant ad litem. b. That the learned magistrate erred in law and fact by holding that the applicant herein is the legal heir of eh deceased was not meant to take out letters of administration of her late husband. c. That the learned trial magistrate erred in law and fact in holding that the respondents ranked higher in priority over the appellant in taking out letter of administration of the deceased’s estate. d. That the learned trial magistrate erred in both law and fact by not considering the submissions of the appellant herein therefore misdirecting himself on the law. e. That the learned trial magistrate erred in law and in fact by holding against the provisions of the Law of Succession act Cap 160. The appellant sought the following orders: i. This appeal be allowed. ii. This honourable court be pleased to set aside the ruling dated 8th March, 2023. iii. The respondents do bear the costs of this appeal. Appellant’s Submissions 10. It was submitted that the respondents had no capacity to apply for the grant, in question, being grandchildren of the deceased. That applying Section 66 of the Law of Succession act, it was the appellant who had priority to apply for the said grant. For these reasons, it was argued the respondents had no locus standi. 11. On the question of locus standi, the appellant cited Ibrahim versus Hassan &Charles Kaimenyi Macharia(2019) eKLR. 12. It was further submitted that the respondents, being ranked lower in the degree of affinity/ consanguinity failed to seek the consent of the appellant or other beneficiaries ranking higher than them. 13. It was submitted that the respondents are not the dependents of the deceased as their parent was alive. Cited was the decisions in the Estate of Wahome Njoki Wakagoto (2013) eKLR and Imoli Luhatse Paul (Deceased) (2021)eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18323/eng@2025-11-25 2

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14. The appellant further submitted that the respondents had failed to demonstrate that they were dependents of the deceased under Section 29 of the Act. That only the wife/wives, children of the deceased are outrightly entitled to the deceased’s estate. Cited in support of the submissions was the case of The Estate of Muthania Mwendwa (deceased)(2016)eKLR. Respondents’ Submissions 15. Citing Section 66 of the Act, the respondents submitted that the trial court had an unfettered discretion to issue the grant to the respondents and that the trial court properly exercised that discretion. 16. It was also submitted that the appellant has not shown how the trial court exercised the discretion injudiciously. Cited was the decision in Yoshin Engineering Corporation -Versus –AIA Architects Limited (2023)KECA 872(KLR). Analysis & Determination. 17. As the first appellate court, the duty placed on this court is as was set out in Selle – Versus – Associated Motor Boat Company Limited (1968) EA 123 where it was held as follows:“ An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that, this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.’ 18. The issues that arise for determination are as follows:a. Whether the respondents had locus standi to apply for the grant in question? b. If the answer to (a) is in the affirmative, then whether the trial court was correct to issue the grant to the respondents? c. Who bears the costs of this appeal? 19. Perhaps the best place to start is to look at the nature and purpose of a Limited Grant Ad Litem under the Law of Succession Act. 20. A grant of letters of administration ad litem is one form of the temporary or limited grants issued by the court for a special purpose. The law recognizes that the road to the issuance of a full grant is paved with many hurdles, due to several requirements and takes time. The issuance of these temporary grants is meant to safeguard the estate of a deceased before the full grant is issued. 21. Section 54 of the Act provides for the issuance of Limited Grants. It provides as follows:54. Limited grants A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18323/eng@2025-11-25 3

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22. Section 49 of the Act empowers a Resident Magistrate to issue a Temporary Grant. It provides as follows:49. Territorial jurisdiction of magistrates The Resident Magistrate within whose area a deceased person had his last known place of residence shall, if the gross value of the estate of the deceased does not exceed one hundred thousand shillings, have in respect of that estate the jurisdiction conferred by section 48: Provided that— (i) the magistrate may, with the consent or by the direction of the High Court, transfer the administration of an estate to any other resident magistrate where it appears that the greater part of the estate is situated within the area of that other magistrate or that there is other good reason for the transfer; (ii) if the deceased had his last known place of residence outside Kenya, the High Court shall determine which magistrate shall have jurisdiction under this section; (iii) every Resident Magistrate shall have jurisdiction, in cases of apparent urgency, to make a temporary grant of representation limited to collection of assets situated within his area and payments of debts, regardless of the last known place of residence of the deceased. 23. The grant in question was clearly issued by the Lower Court pursuant to the Jurisdiction conferred upon it under Section 49 (iii)of the Act. 24. Rule 12 the Probate & Administration Rules provides for the grant of any of the Limited Grants under the Act. It provides as follows:Application for limited grant under Fifth Schedule to the Act :- An application for a grant of representation to be limited in any of the several respects described in the Fifth Schedule to the Act shall be by petition in the appropriate Form and shall be supported by such evidence by affidavit in Form 19 as is required by these Rules including such evidence as is sufficient to establish the existence of the facts and circumstances relative to the particular respect in which the grant is to be limited. 25. Rule 14 then provides for the grant ad litem as follows; 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 administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, 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. 26. Having established that the magistrate court where applicable, my issue a Grant Ad Litem, the question for determination then is whether the respondents had the locus standi to apply for the grant of letters of administration ad litem. 27. The principle of locus standi was discussed in Ibrahim – Versus Hassan & Charles Kaimenyi Macharia (Supra) as follows:“ Locus standi is basically the right to appear or be heard in court or other proceedings. That means if one alleges the lack of the same in certain court proceedings, he means that party https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18323/eng@2025-11-25 4

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cannot be heard, despite whether or not he has a case worth listening. The issue herein is whether the Applicant lacks the requisite locus standi to seek relief from the court to revoke the grant in question issued to the Respondent. In my view, issues as regards locus standi are critical preliminary issues which must be dealt with and settled before dwelling into other substantive issues.” 28. Therefore, a party moving the court must exhibit sufficient interest of nexus to the matter. The principle of locus standi is meant to wade off busy bodies in matters that they do not have sufficient interest. 29. The respondents are the grandchildren of the deceased. Section 66 of the act provides as follows regarding the preference to be given to certain persons to administer an intestate estate. 66. Preference to be given to certain persons to administer where deceased died intestate When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference— (a) surviving spouse or spouses, with or without association of other beneficiaries; (b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V; (c) the Public Trustee; and (d) creditors: Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will. 30. By use of the term “preference” the Act is setting an order of priority and not excluding any party. Therefore, the court may, if the circumstances so require, depart from that order of preference. 31. A grandchild ranks in the 2nd degree of consanguinity and as such, may at the discretion of the court, be allowed to apply for letters of administration. 32. Now, a distinction has to be drawn between having the right to apply for letters of administration as set above and the right to inherit an estate under section 39 of the Act. 33. In the former, as I have stated, the person may be appointed as an administrator the estate without necessarily ranking higher in priority. 34. In the latter case, the law is quite clear that a grandchild does not benefit directly from the estate unless the parent, a child of the deceased’s is deceased. In such instances, the grandchild steps into the shoes of the parent. This position was clearly explained in the Estate of Wahome Njoki Wakogoto (supra) and in the Estate of Florence Mukori Kinyua (Deceased)(2018)eKLR. I 35. Therefore, if the respondents were seeking any inheritance while their parent was alive then they would have been found to be without locus standi. The have to wait for their parents’ share. 36. It is thus my finding that although the respondents are ranked lower than the appellant under section 66 of the Act, they had the locus standi to apply for the letters of administration ad litem. 37. Did the court err in granting the said Letters of Administration? https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18323/eng@2025-11-25 5

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38. I think that the answer to this question can easily be discerned from the discussion hereinabove. 39. The appellant’s argument is that she ranks higher in preference and that her consent was not sought prior to the application for the grant. The trial court looked at the issue in detail and found that for a Limited Grant ad Litem may not be subjected to strict requirements as when filing an application for a full grant. 40. The trial court relied on the decision in Karega & 2 Others – Versus Kiama & 2 Others (2022)KEHC 9880(KLR). That decision followed the one in Winrose Emmah Ndinda Kiamba – Versus- Agnes Nthambi Kasyoka(2021)eKLR where the court held as follows:“ The above provisions are clear and that such a grant is normally issued due to the exigencies arising in relation to the estate and which could not wait for issuance of full grant through the normal way. It is also issued without prejudice to the right of any other person to apply for full grant of representation to the deceased. As such, limited grant may not be subjected to full and strict compliance with the requirements meant for, as if it is full grant of representation. Again, the person to whom the grant is so made undertakes to administer the estate according to the law but limited for the purpose for which the grant is issued until a further grant of representation is made by the court. I have perused the pleadings filed in the lower court and that the court was satisfied that the urgency warranted issuance of a limited grant which it issued on 10th July, 2020.” 41. I agree with the said decision in regard to the application of some requirements in Petitions for a full grant to those in a Limited Grant. However, I do not think that the strict requirements referred to by the court include a consent from other persons with equal of higher priority. 42. In my view, a consent of such parties ought to be obtained prior to coming to court. And it is for obvious reasons. For instance, what is to prevent another party’s seeking a similar grant before another court, or even before the same court? 43. The strict requirements referred to by the court would, I believe be applicable to such documents as Notice to the Registrar and Notice from the Registrar, Gazettement and so on. Such requirements would defeat the purpose or urgency of the application. 44. It is thus my finding that even in an application for a limited grant, a Petitioner ought at the way least to first seek the consent of all persons who rank equal or higher in preference under the Act. If such consent if not forthcoming, then a citation ought to issue, if the court deems it fit. This would eliminate the possibility of multiple petitions as set out above. It would also serve notice to the potential administrator of the estate that such a grant is in existence. 45. From the evidence before the lower court, the respondents never sought any consent and did not issue any citation. It is also apparent that the grant issued to them only came to be known when the ELC suit was filed. 46. Would the lack of consent of itself be a ground to revoke the grant? I think that the circumstances of the case would determine that question. 47. By obtaining the grant and filing the suit, no prejudice was caused to any of the beneficiaries as the respondents do not have the powers to do anything else apart from prosecute the case. If they are successful then that property will be available to the estate’s beneficiaries. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18323/eng@2025-11-25 6

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48. Looking at the unique circumstances of the case, where the respondents alleged that they stood to be prejudiced by the purported fraudulent transfer of part of the estate, and that appellant is alleged to have colluded with the defendant in the ELC suit to bring this application, I think that it would be great injustice if the grant to the respondents is revoked. 49. For the foregoing reasons, I find no reason to interfere, with the Magistrate’s discretion. The said discretion was not exercised erroneously or in application of wrong principles. 50. I also note that while the appellant has concentrated on the grant issued herein, she has not told the court is she has applied for a full grant. 51. In my view if she was keen to administer the estate as she states, she would have done so by now, since the grant herein is only limited in time, and once a full grant is issued, it would become obsolete, unless the court finds it necessary to have it continue until the determination of the case. 52. As such, the appellant ought to have moved to apply for a full grant. It is only an administrator with a full grant who has powers of distributing the estate of the deceased. The respondents who have the limited grant herein will have to account to that administrator on the outcome of the suit, so that where necessary, the suit land is included as part of the estate of the deceased. 53. After considering the matter, I am of the view that the appeal is wanting in merit and it is dismissed. 54. Since this is a family matter, the parties will bear their own costs of the appeal. DATED, SIGNED & DELIVERED AT MERU THIS 25TH DAY OF NOVEMBER, 2025. H. M. NYAGA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18323/eng@2025-11-25 7

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