By AMOS MUOKI 

When a loved one passes away, the question of who has the legal authority to manage their estate becomes paramount. In Kenya, this authority is conferred through what is legally known as a "grant of representation." This grant serves as the official document issued by the court confirming that a particular individual has the legal power to act as the personal representative of the deceased person. The law requires that each estate must have its own separate grant, meaning one cannot obtain a single grant for two or more estates.

The High Court has jurisdiction to make these grants under Section 47 of the Law of Succession Act, with the Chief Justice empowered to appoint resident magistrates to handle certain types of grants. This ensures that even at the local level, access to succession justice is available, though the substantive authority always derives from the High Court.

Understanding the purpose and types of grants

Section 53 of the Law of Succession Act establishes two primary forms of grants: grants of probate and grants of letters of administration. A grant of probate is issued when the deceased left a valid will that appointed executors. This grant confirms the executor's authority, though the executor's power actually derives from the will itself. In addition to confirming the executor’s role, the grant serves to establish that the will is valid and that the named executors have the legal capacity to administer the estate. 

On the other hand, grants of letters of administration are issued in two situations: when someone dies without a will, which is known as intestacy, or when they left a will that either does not appoint executors, or the appointed executors are unable or unwilling to act.

 In intestacy, the grant establishes that the deceased died without a valid will, and it becomes the source of the administrator’s authority. In cases with a will but no executor, the grant of letters of administration with will annexed provides authority to administer the estate according to the will’s terms. 

The court may also issue grants that are limited as to property, purpose, or time, for instance where original personal representatives have not completed administration, and the court may issue a grant limited to completing that administration. Such flexibility ensures that estates can be administered effectively even in complex circumstances, and it recognizes that not every estate requires a full, unrestricted grant.

Executors and administrators explained

A clear understanding of who acts as a personal representative is essential. An executor is a person appointed under a will to distribute the deceased’s property according to the will’s terms. The term "executor" derives from their role in executing the wishes of the deceased. The executor’s authority comes from the will itself, and the grant of probate merely confirms this existing authority. 

Conversely, an administrator is appointed by the court in cases of intestacy or where there is no proving executor. Unlike executors, administrators derive their authority entirely from the grant of letters of administration, which serves as the source of their legal capacity. 

It is critical to recognize that personal representatives are not the same as beneficiaries. While a personal representative can also be a beneficiary, the roles are distinct. As the Court of Appeal emphasized in Sewe v Sewe and another [1991] the appointment of administrators is not the same as distributing assets to those entitled to inherit. The administrator’s role is fundamentally administrative: gathering the assets, identifying the liabilities, and agreeing on the apportionment of assets with the family. This distinction protects the integrity of the administration process and prevents confusion between management functions and ownership rights.

Appointment of executors

Section 6 of the Law of Succession Act permits a testator to appoint executors by will. While not mandatory, a will is generally considered incomplete without appointing executors because they are the ones who will give effect to the testator’s intentions. 

A variety of persons may be appointed as executors, and the choice often reflects the testator’s personal circumstances and the nature of the estate. Spouses are commonly appointed, especially when there are no grown children, because the spouse is usually the primary beneficiary and should have a hand in the estate’s administration. It is advisable in such cases to appoint a co-executor, perhaps a grown child, to ensure continuity and shared responsibility. 

Advocates may also be appointed as executors, particularly when they have been involved in managing the deceased’s legal affairs, but the will should provide for their professional remuneration to avoid ambiguity. 

Banks are often the most suitable choice where there is family strife or where the will creates trusts continuing for many years, as most banks have dedicated trustee departments with the expertise and longevity to manage estates effectively. The Public Trustee, an office within the Attorney-General’s chambers, administers estates for persons who have appointed it to act or who have failed to appoint anyone. In some instances, executors may be impliedly appointed based on the construction of the will, and such executors are called "executors according to the tenor of the will." For example, in Re Russell’s Goods (1892), trustees appointed "to carry out my will" were held to be executors according to the tenor of the will, demonstrating that the court will look at the substance of the testator’s intention rather than mere form.

Numbers of executors and administrators

The law prescribes specific limits on the number of personal representatives who may take out a grant. Under rule 25(b) of the Probate and Administration Rules, a grant may be made to a single person or jointly to two or more persons, not exceeding four. While Section 6 of the Law of Succession Act does not limit the number of executors that may be appointed by a will, Section 56(1)(b) provides that only four executors may take out a grant with respect to the same property, and one executor is considered sufficient.

Administrators face different requirements, as Sections 58, 71(2A), 75(A), 81, and 95(2) require a minimum of two administrators where there is a minority or life interest in the estate. This ensures that the interests of vulnerable beneficiaries, such as minors or persons with life interests, are protected through joint oversight. As held in In the Matter of the Estate of Gathii Gatimu (deceased), substituting a deceased administration by two persons brought the number to five, contrary to section 56(1) of the Act, and the court reviewed the order accordingly. 

If a dispute arises between executors or among more than four persons entitled to act as administrators regarding who should take out a grant, the matter must be resolved by a judge or magistrate, who will weigh the competing claims and determine the most suitable appointees.

Capacity to take out a grant

Not every person is eligible to take out a grant of representation. Section 56(1)(a) of the Law of Succession Act disqualifies minors, persons of unsound mind, and bankrupts from taking out a grant. This restriction safeguards the estate from mismanagement by those who lack legal capacity. For minors, the law makes special provision: under rule 32(1) of the Probate and Administration Rules, in intestacy cases where the person entitled to a grant is a minor, administration should be made to an adult for the minor’s benefit until they attain the age of eighteen. Similar provisions exist for testate succession under rule 33, where one of the executors is a minor. Corporate bodies may also obtain grants, but subject to important restrictions. Section 56(2) provides that grants of letters of administration should not be made to a body corporate other than the Public Trustee or a trust corporation, and Section 57 prohibits grants to syndics or nominees on behalf of a body corporate, though applications may be signed by officers or directors. 

Married women have capacity under Section 18 of the Married Women’s Property Act of 1882 to act as executrix or administratrix alone or jointly, without their husbands, as if they were unmarried. However, in intestacy where there are minor children, the law requires the widow as surviving spouse to grant jointly with another, reflecting the policy of shared responsibility when vulnerable interests are involved.

Intermeddling 

The term "executor de son tort" literally means an executor because of his own wrong. It refers to someone who acts as executor or administrator without legal authority, intermeddling with the estate by performing acts consistent with administration, such as paying debts or distributing assets. These acts, when not acts of humanity or necessity, constitute intermeddling and render the person liable as an executor de son tort. The key principles regarding such persons are that they have no rights over the estate, but they are liable to creditors and beneficiaries to the extent that assets pass through their hands. They are answerable to the rightful personal representative to the extent of assets intermeddled with, after deducting proper payments made in the normal course of administration. Their liability ceases when they hand over the assets to the lawful personal representative. In practice, a citation may be issued against such a person to show cause why they should not take a grant, and this citation can be used to compel them to take out a grant. The citation is brought at the instance of any interested person after three months from the date of death, thereby providing a mechanism to regularize the administration and prevent unauthorized interference with the estate.

Conclusion

The law governing grants of representation in Kenya provides a comprehensive framework for the administration of deceased persons’ estates. The distinction between executors and administrators, the requirements for capacity, the limitations on numbers, and the provisions regarding executors de son tort all serve to ensure that estates are administered efficiently, legally, and in accordance with the deceased’s wishes or the intestacy rules. 

The courts play a crucial role in overseeing the grant process and resolving disputes that may arise, always with an eye to protecting the interests of beneficiaries and creditors alike. For practitioners, family members, and beneficiaries, understanding these principles is essential for navigating the succession process with confidence. Whether you are drafting a will, seeking to administer an estate, or simply wishing to know your rights, a clear grasp of grants of representation will help you avoid pitfalls and ensure a smooth transition of property from the deceased to the living.

The writer is a legal commentator specializing in succession law, and this article is intended for public education only and does not constitute legal advice.