This is an appeal arising from the ruling of Honourable Y.I Khatambi Principal Magistrate, Nakuru delivered on 11th March, 2022 in Nakuru CMC ELC No. 41 of 2022.
The Appellant filed a Memorandum of Appeal dated 24th March, 2022 appealing against the said ruling on the following grounds: -
1. THAT the learned Principal Magistrate erred in law by failing to frame as a specific issue for determination whether the plaint as originally filed was valid and competent and thus capable of amendment.
2. THAT the learned Principal Magistrate erred in law in finding and holding that the three other persons subsequently added to the suit through an amendment were administrators of the deceased’s estate when the Letters of Administration pursuant to which the suit was originally filed had only one administrator.
3. THAT the learned Principal Magistrate erred in law by dismissing with costs the appellant’ s first application dated 20th April 2021 even after expressly finding that it was the aforesaid application that prompted the plaintiff to amend his plaint.
4. THAT the learned Principal Magistrate erred in law by wrongly framing the issue raised by the appellant in the application dated 20" April 2021 as a challenge on the respondent’s right to amend his plaint rather than to add other parties thereto without prior leave of the court.
5. THAT the learned Principal Magistrate erred in law by allowing the plaint to stand on the basis that no prejudice would be occasioned to the appellant but ignoring the appellant’s complaint that the suit as originally filed was invalid and incompetent for being filed using a Limited Grant of Letters of Administration that had been superseded and no longer operative.
6. THAT the learned Principal Magistrate erred in law by ignoring the fact that even the amended plaint filed by the respondent is still expressly partly founded upon the Limited Grant of Letters of Administration that have been superseded and no longer operative.
7. THAT the Principal Magistrate’s ruling as a whole is contrary to law and well established legal principles.
The Appellant seeks orders setting aside the trial court’s ruling and an order allowing the Appellants applications dated 20th April, 2021 and 31st May, 2021.
BRIEF FACTS
The Appellant filed an application dated 20th April, 2021 in the trial court seeking that the Respondent’s suit commenced via plaint dated 2nd March, 2021 be struck out. The Appellant’s basis for the same was that the suit was commenced vide a limited grant of letters of administration that was no longer operative. The trial magistrate upon hearing of the application on 11th March, 2022, dismissed the same with costs.
The Appellant being dissatisfied with the ruling lodged the instant appeal before this court.This court on 26th September, 2024 directed that the appeal be canvassed by way of written submissions.
Submissions
The Appellant filed his submissions on 18th October, 2024 where he gave a background of the case and identified four issues for determination. The first issue was on the competency of the original plaint where he submitted that from the plaint dated 2nd March, 2021, the same was brought by the Respondent as a single plaintiff. He cited paragraph 3 of the said plaint and further submitted that from the limited grant ad litem, the Respondent is the sole administrator. He submitted that there was a full grant of letters of administration intestate by the High court in Nairobi. He submitted that the Appellant was alarmed as to why he was sued on the strength of a limited grant ad litem yet full letters of administration had already been issued. Counsel relied on Rule 38(2) of the Probate and Administration Rules and submitted that the limited grant on which the Respondent instituted the original suit lapsed and ceased to be operative from 27th April, 2015 when the High court issued the full grant.
The second issue was on the validity of the amended plaint where he argued that the Respondent purporting to amend the plaint by adding other administrators was legally impossible since they were not named as administrators in the limited grant. He argued that the Respondent’s amendment was an addition of other Plaintiffs to the suit. Counsel relied on Order 1 Rule 10 of the Civil Procedure Rules and submitted that there was no power vested to add other plaintiffs without the court’s reference as was done in the subordinate court.
The third issue was on dismissal with costs of the application dated 20th April, 2021. He cited paragraph 2 of the learned trial magistrate’s ruling dated 10th March, 2022 where he submitted that the magistrate made damaging admissions. That the said admissions were, one, that the application dated 20th April, 2021 had forced the Respondent to amend his plaint and the second one being acknowledgment that the Respondent introduced all the administrators to the deceased’s estate. It was counsel’s submission that the there was no rationale behind the court’s holding yet it was without merit and that she did not specify the legal provision that empowered the Respondent to introduce administrators.
The final issue was the prejudice occasioned on the Appellant where he submitted that the Appellant would be prejudiced if he did not object to the original suit. He argued that the Respondent never explained why he initiated the suit using a lapsed limited grant ad litem yet he was already in possession of the full grant. He further submitted that the three administrators to the amended plaint do not have the legal power to act competently without the fourth administrator. He added that all the four administrators are required to give full discharge to the Appellant once any debt is settled due from him to the deceased’s estate.
In conclusion, the Appellant urged the court to allow the appeal.
The Respondent on the other hand filed his submissions dated 24th October, 2024 where he identified one issue for determination, whether the limited grant of letters of administration was no longer operative. Counsel for the Respondent relied on Rules 36(1) (2) and 38 (2) of the Probate and Administration (P & A) Rules and submitted that the Respondent while instituting the suit used the Limited Grant ad Litem under Section 54 and 5th Schedule of the P & A Rules which is different from that under Rule 36. He cited the case of John Wairimu Mathenge (petitioning on behalf of the Estate of Adam Mathenge Wangombe) V Attorney General (2017) eKLR and submitted that the law provided for various forms of limited or special grants.
It was his submission that the limited grant under rule 36 and 37 is grant of letters of administration ad colligenda bona defuncti and not grant ad litem under Section 54 of Cap 160 Laws of Kenya. Counsel for the Respondent argued that limited grant ad litem does not become inoperative at any time. He relied on Section 72 of the Interpretation and General Provisions Act and urged the court to find that the limited grant ad litem was not inoperative at the time of filing the suit.
He submitted that the amended plaint was filed pursuant to Order 8 Rule 1 of the Civil Procedure Rules which allowed a party to amend his/her pleadings without leave of court before pleadings were closed. He submitted that there was no merit on the application dated 31st May, 2021 other than a complaint in the manner the administrator came into the suit. Counsel cited the case of Pamella Kwamboka Nyarega & 4 Others V Edward Kaso Obwocha & Another (2020) eKLR
In conclusion, he submitted that the amended plaint does not cause any prejudice to the Appellant and urged the court to dismiss the appeal with costs.
Analysis and Determination
Having considered the lower court record, the memorandum and record of appeal and the issues proffered by the parties’ submissions, the court has condensed the grounds of appeal as follows:
1. Whether the limited grant was inoperative.
2. Whether the Plaint dated 2nd March, 2021 was competent to warrant amendment.
3. Who should bear the cost of the appeal.
Being a first appeal, this court relies on a number of principles as set out in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123:
“…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 ...”
It is the Appellant’s case that the original suit lapsed and ceased to be operative from 27th April, 2015 when the High court issued the full grant. It was also his case that the original suit as filed with the limited grant ad litem had been superseded by the full grant rendering the limited grant inoperative. The Respondent on the other hand argued that the suit was filed using the Limited Grant ad Litem under Section 54 and 5th Schedule of the P & A Rules which is different from that under Rule 36. It was the Respondent’s contention that the limited grant under rule 36 and 37 is grant of letters of administration ad colligenda bona defuncti and not grant ad litem under Section 54 of Cap 160 Laws of Kenya and therefore the limited grant ad litem does not become inoperative at any time. It is trite law that limited grant of letters of administration ad litem is usually made when the estate of a deceased person is required to be represented in court proceedings. It is noteworthy that a limited grant is made due to the exigencies of matter that is, urgent need to file or join or defend suit on behalf of the estate, and which cannot wait until full grant is obtained.
Section 54 of the Law of Succession Act provides that:
“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.”
Further, Fifth Schedule (14) provides:-
“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.”
In re the estate of Helena Wangechi Njoroge (Deceased) (2015) eKLR it was stated of letters of administration ‘ad litem’ that;
“It was limited to the purpose of filing suit to preserve the three assets of the estate. It is what is called a grant of letters of administration ad litem. The suit envisaged to be filed on the strength of a grant ad litem is not a probate or succession case, or an interlocutory application within a probate or succession cause, but rather a civil suit. Indeed, one need not obtain a grant of any sort to enable him file a succession cause. A grant of representation is only necessary where one intends to file a civil suit to protect or defence the estate against third parties.”
It is this court’s view that the suit was rightfully filed by the Respondent and in as much as the full grant was later obtained, it did not render the limited grant inoperative. This is because the grant ad litem was solely for the purpose of filing this suit on behalf of the deceased which suit is still pending in the subordinate court. I therefore find that the limited grant is therefore not inoperative.
Going to the second issue, having already found that the limited grant was in operation, the plaint dated 2nd March, 2021 was thus competent before court. This court is of the view that the trial magistrate was therefore right in applying the provisions of Order 8 Rule 1 of the Civil Procedure Rules on amendment of the plaint to have the Respondent other administrators to the suit. Consequently, I find that the appeal is without merit and is therefore dismissed with costs. It is so ordered.
The Appellant filed a Memorandum of Appeal dated 24th March, 2022 appealing against the said ruling on the following grounds: -
1. THAT the learned Principal Magistrate erred in law by failing to frame as a specific issue for determination whether the plaint as originally filed was valid and competent and thus capable of amendment.
2. THAT the learned Principal Magistrate erred in law in finding and holding that the three other persons subsequently added to the suit through an amendment were administrators of the deceased’s estate when the Letters of Administration pursuant to which the suit was originally filed had only one administrator.
3. THAT the learned Principal Magistrate erred in law by dismissing with costs the appellant’ s first application dated 20th April 2021 even after expressly finding that it was the aforesaid application that prompted the plaintiff to amend his plaint.
4. THAT the learned Principal Magistrate erred in law by wrongly framing the issue raised by the appellant in the application dated 20" April 2021 as a challenge on the respondent’s right to amend his plaint rather than to add other parties thereto without prior leave of the court.
5. THAT the learned Principal Magistrate erred in law by allowing the plaint to stand on the basis that no prejudice would be occasioned to the appellant but ignoring the appellant’s complaint that the suit as originally filed was invalid and incompetent for being filed using a Limited Grant of Letters of Administration that had been superseded and no longer operative.
6. THAT the learned Principal Magistrate erred in law by ignoring the fact that even the amended plaint filed by the respondent is still expressly partly founded upon the Limited Grant of Letters of Administration that have been superseded and no longer operative.
7. THAT the Principal Magistrate’s ruling as a whole is contrary to law and well established legal principles.
The Appellant seeks orders setting aside the trial court’s ruling and an order allowing the Appellants applications dated 20th April, 2021 and 31st May, 2021.
BRIEF FACTS
The Appellant filed an application dated 20th April, 2021 in the trial court seeking that the Respondent’s suit commenced via plaint dated 2nd March, 2021 be struck out. The Appellant’s basis for the same was that the suit was commenced vide a limited grant of letters of administration that was no longer operative. The trial magistrate upon hearing of the application on 11th March, 2022, dismissed the same with costs.
The Appellant being dissatisfied with the ruling lodged the instant appeal before this court.This court on 26th September, 2024 directed that the appeal be canvassed by way of written submissions.
Submissions
The Appellant filed his submissions on 18th October, 2024 where he gave a background of the case and identified four issues for determination. The first issue was on the competency of the original plaint where he submitted that from the plaint dated 2nd March, 2021, the same was brought by the Respondent as a single plaintiff. He cited paragraph 3 of the said plaint and further submitted that from the limited grant ad litem, the Respondent is the sole administrator. He submitted that there was a full grant of letters of administration intestate by the High court in Nairobi. He submitted that the Appellant was alarmed as to why he was sued on the strength of a limited grant ad litem yet full letters of administration had already been issued. Counsel relied on Rule 38(2) of the Probate and Administration Rules and submitted that the limited grant on which the Respondent instituted the original suit lapsed and ceased to be operative from 27th April, 2015 when the High court issued the full grant.
The second issue was on the validity of the amended plaint where he argued that the Respondent purporting to amend the plaint by adding other administrators was legally impossible since they were not named as administrators in the limited grant. He argued that the Respondent’s amendment was an addition of other Plaintiffs to the suit. Counsel relied on Order 1 Rule 10 of the Civil Procedure Rules and submitted that there was no power vested to add other plaintiffs without the court’s reference as was done in the subordinate court.
The third issue was on dismissal with costs of the application dated 20th April, 2021. He cited paragraph 2 of the learned trial magistrate’s ruling dated 10th March, 2022 where he submitted that the magistrate made damaging admissions. That the said admissions were, one, that the application dated 20th April, 2021 had forced the Respondent to amend his plaint and the second one being acknowledgment that the Respondent introduced all the administrators to the deceased’s estate. It was counsel’s submission that the there was no rationale behind the court’s holding yet it was without merit and that she did not specify the legal provision that empowered the Respondent to introduce administrators.
The final issue was the prejudice occasioned on the Appellant where he submitted that the Appellant would be prejudiced if he did not object to the original suit. He argued that the Respondent never explained why he initiated the suit using a lapsed limited grant ad litem yet he was already in possession of the full grant. He further submitted that the three administrators to the amended plaint do not have the legal power to act competently without the fourth administrator. He added that all the four administrators are required to give full discharge to the Appellant once any debt is settled due from him to the deceased’s estate.
In conclusion, the Appellant urged the court to allow the appeal.
The Respondent on the other hand filed his submissions dated 24th October, 2024 where he identified one issue for determination, whether the limited grant of letters of administration was no longer operative. Counsel for the Respondent relied on Rules 36(1) (2) and 38 (2) of the Probate and Administration (P & A) Rules and submitted that the Respondent while instituting the suit used the Limited Grant ad Litem under Section 54 and 5th Schedule of the P & A Rules which is different from that under Rule 36. He cited the case of John Wairimu Mathenge (petitioning on behalf of the Estate of Adam Mathenge Wangombe) V Attorney General (2017) eKLR and submitted that the law provided for various forms of limited or special grants.
It was his submission that the limited grant under rule 36 and 37 is grant of letters of administration ad colligenda bona defuncti and not grant ad litem under Section 54 of Cap 160 Laws of Kenya. Counsel for the Respondent argued that limited grant ad litem does not become inoperative at any time. He relied on Section 72 of the Interpretation and General Provisions Act and urged the court to find that the limited grant ad litem was not inoperative at the time of filing the suit.
He submitted that the amended plaint was filed pursuant to Order 8 Rule 1 of the Civil Procedure Rules which allowed a party to amend his/her pleadings without leave of court before pleadings were closed. He submitted that there was no merit on the application dated 31st May, 2021 other than a complaint in the manner the administrator came into the suit. Counsel cited the case of Pamella Kwamboka Nyarega & 4 Others V Edward Kaso Obwocha & Another (2020) eKLR
In conclusion, he submitted that the amended plaint does not cause any prejudice to the Appellant and urged the court to dismiss the appeal with costs.
Analysis and Determination
Having considered the lower court record, the memorandum and record of appeal and the issues proffered by the parties’ submissions, the court has condensed the grounds of appeal as follows:
1. Whether the limited grant was inoperative.
2. Whether the Plaint dated 2nd March, 2021 was competent to warrant amendment.
3. Who should bear the cost of the appeal.
Being a first appeal, this court relies on a number of principles as set out in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123:
“…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 ...”
It is the Appellant’s case that the original suit lapsed and ceased to be operative from 27th April, 2015 when the High court issued the full grant. It was also his case that the original suit as filed with the limited grant ad litem had been superseded by the full grant rendering the limited grant inoperative. The Respondent on the other hand argued that the suit was filed using the Limited Grant ad Litem under Section 54 and 5th Schedule of the P & A Rules which is different from that under Rule 36. It was the Respondent’s contention that the limited grant under rule 36 and 37 is grant of letters of administration ad colligenda bona defuncti and not grant ad litem under Section 54 of Cap 160 Laws of Kenya and therefore the limited grant ad litem does not become inoperative at any time. It is trite law that limited grant of letters of administration ad litem is usually made when the estate of a deceased person is required to be represented in court proceedings. It is noteworthy that a limited grant is made due to the exigencies of matter that is, urgent need to file or join or defend suit on behalf of the estate, and which cannot wait until full grant is obtained.
Section 54 of the Law of Succession Act provides that:
“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.”
Further, Fifth Schedule (14) provides:-
“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.”
In re the estate of Helena Wangechi Njoroge (Deceased) (2015) eKLR it was stated of letters of administration ‘ad litem’ that;
“It was limited to the purpose of filing suit to preserve the three assets of the estate. It is what is called a grant of letters of administration ad litem. The suit envisaged to be filed on the strength of a grant ad litem is not a probate or succession case, or an interlocutory application within a probate or succession cause, but rather a civil suit. Indeed, one need not obtain a grant of any sort to enable him file a succession cause. A grant of representation is only necessary where one intends to file a civil suit to protect or defence the estate against third parties.”
It is this court’s view that the suit was rightfully filed by the Respondent and in as much as the full grant was later obtained, it did not render the limited grant inoperative. This is because the grant ad litem was solely for the purpose of filing this suit on behalf of the deceased which suit is still pending in the subordinate court. I therefore find that the limited grant is therefore not inoperative.
Going to the second issue, having already found that the limited grant was in operation, the plaint dated 2nd March, 2021 was thus competent before court. This court is of the view that the trial magistrate was therefore right in applying the provisions of Order 8 Rule 1 of the Civil Procedure Rules on amendment of the plaint to have the Respondent other administrators to the suit. Consequently, I find that the appeal is without merit and is therefore dismissed with costs. It is so ordered.