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Two daughters who sought court authority to take charge of their late father's estate have won the right to preserve it—but lost their bid to use its income to pay school fees, cultivate land or finance succession proceedings.
When their father Paul Kakima Mukono died on November 17, 2024, he left behind what many Kenyan families would consider a sizeable estate.
It included rental properties generating about Sh70,000 every month, agricultural land that required seasonal cultivation and an interest in approximately 10 acres at Plot No. 29, Kitanga Settlement Scheme, Machakos County which was still in the process of being transferred into his name.
He also left behind nine children. But there was one thing he did not leave behind—a will.
Without a will and before the court had appointed an administrator, the estate entered a legal limbo. According to court documents, unauthorised persons were collecting rental income, land rates continued accumulating and disagreements among beneficiaries had started emerging.
Fearing that their father's estate would be wasted before succession proceedings could even begin, two of his daughters, Jane Njuhi Kaunga and Veronica Wanjiru Paul, moved to the High Court in Machakos seeking urgent intervention.
The decision that followed has become an important reminder of one of the least understood areas of Kenya's succession law—the limited grant of administration.
Justice Esther Maina allowed the daughters to preserve the estate but drew a firm legal boundary on how far they could go. While they could collect rental income and safeguard the assets, they could not spend the money except for paying land rates.
The ruling illustrates both the usefulness—and the limitations—of temporary grants issued under the Law of Succession Act.
The daughters petitioned the court for what lawyers refer to as a Grant Ad Colligenda Bona, a temporary authority issued where immediate action is required to prevent a deceased person's estate from being wasted before a full grant of representation is issued.
They informed the court that their father died intestate—without leaving a will—and was survived by them and seven other siblings.
According to their affidavits, the absence of a legally recognised administrator had exposed the estate to misuse.
The daughters warned that "no grant has been obtained in respect of the estate, hence exposing it to intermeddling and dissipation."
They also told the court that rental income was already slipping out of the family's control.
According to the petition, "the rent is being collected by unauthorized persons including some beneficiaries who put it to their personal use, giving rise to disputes."
Besides the rental income dispute, the estate had accumulated Sh20,317 in unpaid land rates, which continued attracting additional liabilities.
The daughters therefore asked the court for authority to collect rental income, settle outstanding land rates and statutory charges, cultivate the deceased's farmland, finance the succession proceedings and provide school fees and upkeep for the deceased's grandchildren, whom they said had depended on him after the death of their mothers.
Strict law on succession
From a practical perspective, the requests appeared reasonable.
However, succession law imposes strict limits on what can be done before a full grant of representation is issued.
Many Kenyans wrongly assume that once a loved one dies, close relatives automatically acquire authority to manage bank accounts, collect rent, harvest crops or continue operating businesses belonging to the deceased.
Under the Law of Succession Act, nobody has authority to administer a deceased person's estate unless appointed by the court through Letters of Administration or Probate.
Any person who takes control of estate assets without such authority risks being accused of intermeddling, which is prohibited under the law.
To bridge that gap, the law allows courts to issue limited grants.
Unlike a full grant of representation, a limited grant gives authority only for specific purposes, specific property or a specified period. It is designed to solve an immediate problem rather than confer full administrative powers.
Justice Maina agreed that the estate required urgent protection.
However, she emphasised that a Grant Ad Colligenda Bona exists solely to preserve property—not to administer or distribute it.
Relying on previous Court of Appeal decisions, the judge observed that "such a grant may be issued in circumstances that call for urgent action where it would be impracticable to await the issuance of a full grant. The purpose of this grant is expressly limited to collecting, getting in, and preserving the assets of the deceased's estate until a further or full grant can be made."
She further cited another appellate decision describing the grant as one that "ordinarily applied in emergencies where property of the deceased's estate is in danger of being wasted or dissipated before a full grant can be obtained."
Justice Maina granted the grant sought but restricted it to the purpose only of collecting and getting in the estate and doing such acts as may be necessary for the preservation of the estate until a further grant is made."
In effect, the daughters received authority—but only a temporary and carefully defined one.
Despite acknowledging the family's circumstances, Justice Maina declined to allow the estate's rental income to be used for school fees, farming activities, legal costs or any expenditure that went beyond preserving the estate.
"The grant shall not under any circumstances be used to distribute the estate and shall not be used to draw money from the estate to pay school fees whether it be for the grandchildren of the deceased or anyone else; neither shall it be used to cultivate the land left behind by the deceased, or to enrich the petitioners to the exclusion of their siblings," she ruled.
The judge also barred the daughters from using estate funds to finance the succession proceedings themselves.
"For the avoidance of doubt, the grant shall also not be used to pay for filing of a succession cause or to pay for the land which is due to be transferred to the deceased. All other purposes shall await a full grant," she stated.
Instead, the court ordered that every shilling collected from the rental properties be deposited into a bank account.
"All the rent collected shall be paid into" a bank account and "may be used to draw money only for paying rates in respect of the properties but not for any other purpose and accounts kept," the judge stated.
The petitioners were directed to open the account within 90 days.
Different judgment
Although Justice Maina declined to allow school fees in the Mukono case, that does not mean courts always refuse such requests.
In the case of the estate of Daniel A. Korir Kipkurui, the High Court issued a Grant Ad Colligenda Bona allowing money to be withdrawn from the deceased's KCB account specifically to pay school fees and maintenance expenses.
In the case, the court reasoned that issues pertaining to the education of children especially minors is an issue that requires the attention and urgency of court.
The judge further observed that children's right to education is protected under Article 53(1) of the Constitution and concluded that the payment of school fees and related expenses is an urgent matter."
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Another decision that illustrates the preservation principle is the Estate of Mary Wanja Wairimu.
In that dispute, there were allegations that rental income from the deceased's property was being wasted.
Rather than permit either side unrestricted access to the money, the court ordered tenants to deposit rent into a jointly managed bank account until succession proceedings were concluded.
Like the Mukono case, the objective was preservation rather than distribution.
Although the Mukono family sought a Grant Ad Colligenda Bona, the Law of Succession Act provides several forms of limited grants depending on the circumstances.
A Grant Ad Litem allows a personal representative to file or defend civil proceedings on behalf of the deceased's estate but cannot be used to distribute assets.
An Administration Pendente Lite is issued where succession disputes are pending in court. The appointed administrator preserves and manages the estate under the supervision of the court until the dispute is resolved.
Another grant, known as De Bonis Non, becomes necessary where an administrator dies before completing administration of an estate. A new administrator is appointed solely to complete the unfinished work.
