REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
SUCCESSION CAUSE NO.553 OF 2009
R U L I N G
Krishan Murti Maini, the deceased to whom these succession proceedings relate died on 17th May 2007. Prior to his death, he had, on 15th December 1998 written his last will. In the said will, the deceased bequeathed to his wife Unni Maini, all his real and personal property. Pursuant to the Norwegian Guardianship Act, Unni Maini appointed Kjell Morten Maini to be her legal guardian. This court presumed that the Norwegian Guardianship Act is similar to what is understood in common law as the granting of power of attorney. Using this authority, the petitioner petitioned this court on 11th May 2009 seeking to be granted letters of administration with written will annexed for the purposes of administering the deceased’s estate. What is interesting is that the petitioner, at all the material times before and after filing the petition, is resident in Norway. The petitioner wishes to have the letters of administration with written will annexed confirmed without being actually present in the country.
Mr. Amol, Counsel for the petitioner informed this court that it was not necessary for any petitioner or executor to be physically present in the country for the purposes of administering the estate of the deceased. He argued that pursuant to the provisions of Section 56 of the Law of Succession Act, a person residing out the country cannot be excluded from administering the estate of a deceased person. He further argued that Rule 28 of the Probate and Administration Rules grants power to the court to deal with cases where the deceased died out of the country. He urged the court to confirm the grant notwithstanding that the petitioner has never been to the country from the time the grant of letters of administration with will annexed were issued.
Section 79 of the Law of Succession Act provides as follows:
Section 3(1) of the Law of Succession Act defines a personal representative as “the executor or administrator of a deceased person”. Black’s Law Dictionary, 8th Edition, defines personal representative as:
Oxford Advanced Learner’s Dictionary 6th Edition defines “personal” as:
Sections 82 & 83 of the Law of succession Act, sets out the powers and duties of a personal representative. Letters of administration can only be granted to persons (real) who have legal capacity to enter into an agreement. Letters of administration cannot be granted to a nominee on behalf of a body corporate. (see Section 56 & 57 of the Law of Succession Act).
It is therefore clear that when a court issues letters of administration or grants a probate of written will, such letters or grants are issued personal to the person applying to administer the estate of the deceased. The person applying for letters of administration or grant of probate cannot on his part delegate the powers granted to him by the court to someone else to administer the estate (in the case where the deceased died intestate) or to execute the will (in the case where the deceased left behind a written will) on his behalf. This court is not persuaded by the argument advanced by counsel for the petitioner that this court can confirm letters of administration with written will annexed where it is evident to the court that the petitioner is not resident within the jurisdiction of this court and therefore has no capacity to personally administer the estate of the deceased.
It is evident from the foregoing that the arguments made by counsel for the petitioner finds no favour with this court. The petitioner must be personally present in this court to confirm that he is indeed within the jurisdiction of this court to enable the grant of letters of administration with written will annexed to be confirmed. It is so ordered.