1. Introduction
The Law of Succession Act (Cap. 160) governs the administration and distribution of the estates of deceased persons in Kenya. Upon death, no individual has automatic authority to deal with the estate of the deceased unless such authority is conferred through a valid grant of representation—either grant of probate (in case of a valid will) or grant of letters of administration (in cases of intestacy or invalid wills).
Any act of dealing with the estate without lawful authority is deemed intermeddling, which is prohibited under Section 45 of the Act. However, due to practical and often urgent needs—such as the maintenance of dependants, pending litigation, or the need to preserve perishable assets—the law recognises the issuance of limited grants to enable specific acts pending the issuance or confirmation of a full grant.
In legal terms, a "grant" refers to the judicial confirmation of authority allowing a person (administrator or executor) to act in respect of a deceased person’s estate. Limited grants, as provided under Rule 36 of the Probate and Administration Rules and Schedule 5 of the Act, offer narrow and specific mandates, unlike full grants which empower administrators to comprehensively manage and distribute the estate.
This paper explores the various types of limited grants, their legal basis, and their practical application within the Kenyan succession framework, supported by relevant case law.
2. Concept and Nature of Limited Grants
Limited grants are forms of representation that confer only restricted authority over the deceased’s estate—whether in respect of time, purpose, or property. These grants are issued interim, special, or temporary, pending the issuance of full letters of administration or probate. The intention is to ensure that the estate does not suffer waste or become subject to competing claims and intermeddling during procedural delays.
According to Schedule 5 of the Law of Succession Act and relevant jurisprudence, limited grants may take various forms:
3. Grants Limited as to Purpose
(a) Grant ad colligenda bona defuncti
This is arguably the most common form of limited grant. It is issued for the purpose of collecting and preserving the deceased’s estate where urgent action is required, especially before the issuance of a full grant.
Such a grant is strictly limited: it does not confer authority to distribute, invest, or dispose of estate assets, even where a sale may be commercially advisable. It is mainly protective in nature, allowing an applicant to safeguard estate property against loss, mismanagement, or third-party encroachment.
Case Law:
In Re Estate of Mary Syokwia Kyalili [eKLR], the court underscored that where circumstances warrant immediate action and it is not feasible to process a full grant, a grant ad colligenda bona may be issued. Similarly, in Mary Waithera v Ann Ndegwa & Another [eKLR], the court recognised the urgency of obtaining such a grant to cater for pressing needs such as school fees for dependants.
In Re Estate of Daniel A. Korir Kipkurui [eKLR], the High Court granted a limited grant to the petitioner specifically to withdraw funds from the deceased’s account to meet educational expenses of minor dependants. The court, citing Article 53(1) of the Constitution of Kenya 2010, held that the right to education is a fundamental constitutional entitlement, justifying the urgency and issuance of the limited grant.
Similarly, in Re Estate of Mary Wanja Wairimu [eKLR], the court employed its inherent jurisdiction under Section 47 of the Act to order the preservation of rental income from the deceased’s property by directing that rents be deposited into a joint account managed by counsels of the parties, pending the issuance of a full grant.
4. Grant for Special Purposes: Grant ad litem
This grant is issued for the specific purpose of instituting or defending a legal suit on behalf of the estate. It is particularly relevant where the estate is a party to a cause of action that arises posthumously or was ongoing at the time of death.
This limited grant does not permit the holder to distribute the estate or deal with its assets beyond the scope of the litigation.
Jurisprudence:
In Re Estate of Jennifer Kusuro Musiwa [eKLR], the High Court held that a grant ad litem enables the grantee to pursue a cause of action in which the deceased had a standing. The court emphasised that its purpose is procedural: to provide the legal personality necessary for the estate to sue or be sued.
Likewise, in Re Estate of Helena Wangechi Njoroge (2015) [eKLR], the court held that a grant ad litem is not necessary for filing a succession cause per se, but is strictly required for civil litigation purposes where legal standing must be established.
5. Grants Limited as to Property
(a) Grant pendente lite
This is a temporary grant issued during ongoing litigation regarding the validity of a will, entitlement to the estate, or identity of the rightful administrator. Its core purpose is to preserve the estate until the legal dispute is resolved.
The person appointed under this grant does not have authority to distribute the estate and acts under the court’s supervision. This safeguard ensures neutrality and protection against wastage or misappropriation during contentious proceedings.
(b) Grant de bonis non
This grant arises where an appointed executor or administrator dies or becomes incapacitated before completing administration of the estate. It enables the continuation and completion of estate administration by a newly appointed personal representative.
In Faith Wanjiku Maganjo v Rebean Muriithi Maganjo [eKLR], the court clarified that a grant de bonis non is necessary where the prior administrator failed to complete administration—whether due to death, resignation, or revocation.
6. Grants Limited as to Time
These forms of limited grants arise in situations where the validity or existence of a will is uncertain or pending discovery.
(a) Probate of Copy or Draft of Lost Will
If the original will is lost or destroyed (without any act by the testator), but a draft or copy exists, probate may be granted limited until the original or authenticated copy is produced.
(b) Probate of Copy Where Original is Abroad
Where a will is located outside Kenya and is being withheld, probate may be granted on a transmitted copy, pending the production of the original.
(c) Administration Until Will is Produced
Where there is a belief that a will exists but cannot be found immediately, a temporary grant may be issued limited until the will is located and validated.
7. Conclusion and Legal Opinion
Limited grants are a critical procedural mechanism within the Kenyan succession framework, balancing the need for legal authority with practical urgency. They protect estates from intermeddling, wastage, and third-party abuse, especially in the delicate period before full grants are issued.
In the Kenyan context, where succession matters often face delays—whether due to family disputes, procedural backlog, or document retrieval—limited grants serve to uphold constitutional and statutory rights of dependants. Particularly, children’s rights under Article 53 of the Constitution, such as the right to education and maintenance, underscore the need for a responsive and purposive application of limited grants.
For legal practitioners and estate planners, it is advisable to ensure:
- Timely filing of succession causes;
- Proper safeguarding of original wills (preferably with legal counsel);
- Immediate application for limited grants where necessary to avert loss or litigation;
- Communication between testators and executors to facilitate efficient administration upon death.
Thus, limited grants are not mere procedural tools but are a judicial balancing mechanism, ensuring the estate remains protected, pending the final determination of rights and obligations in succession matters.
Disclaimer: This article is for informational purposes only and does not constitute legal advice.
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