Following the death of a person, it often happens that those who should obtain representation to the deceased’s estate take no immediate steps, exposing the estate to wastage and misapplication by either the beneficiaries or other unscrupulous persons. There are provisions in the law to protect the estate from such an eventuality. The protection provisions are designed to protect or safeguard the estate against wastage or misappropriation before grant of letters of administration is made.
The LSA at section 45 provides that no person should handle, take possession, dispose of, or otherwise intermeddle with the free property of a deceased person unless authorized by law so to do or by a grant of representation. Under section 45(2) (a), it is an offence to intermeddle with an estate without legal authorisation: punishable with a fine, imprisonment, or both. S 45 does not apply where the intermeddler is the person required in law to deal with the affairs of the deceased e.g. an executor appointed under a will.
In Gitau and two others vs. Wandai and five others (1989) KLR 231 it was held that the act of one of the parties to the suit of entering into a sale agreement before grant of representation had been obtained amounted to intermeddling with the affairs of the deceased. In Ombogo vs. Standard Chartered Bank of Kenya Limited (2000) 2 EA 481, the Court of Appeal held that the practice at the time by the LSK of appointing practising advocates to wind up the firms of their deceased colleagues was inconsistent with S 45 of the LSA, as the estate of a deceased advocate included the money held in trust for his clients. The acts of the advocates so appointed amounted to intermeddling with the estate of the deceased advocate. In John Kasyoki Kieti vs. Tabitha Nzivulu Kieti and another Machakos HCCC No. 95 of 2001, Mwera J stated that doing anything affecting the estate of a deceased person, including commencing action on behalf of the estate before obtaining representation, amounted to intermeddling with the estate. In Kothari vs. Qureshi and another (1967) EA 564, Rudd J stated that the act of the executor of consenting to have his name put on the court file as a party amounted into intermeddling in the estate and by appearing through an advocate to conduct the appeal the executor had further intermeddled in the estate. An executor must obtain a grant to file suit.
Section 46 vests authority to a certain class of public officers (police, chiefs, assistant chiefs, public trustee) with regard to protection of estates of persons who die within the public officers’ area of jurisdiction. In Francis Kamau Mbugua and another vs. James Kinyanjui Mbugua Nairobi HCCC No. 111 of 2004 (OS), Nyamu J stated that sections 45 and 46 provide detailed protective provisions concerning intermeddling with estates of deceased persons. Once alerted, they should move into the deceased’s residence ascertain the property and preserve it. He should also ascertain all the persons who appear to have an interest in succession to or administration of the estate, and guide the prospective executors or administrators on the formalities and their duties relating to the administration of estate. Where no action is taken within a month, relatives of the deceased or public officers should make a report to the Public Trustee stating the steps taken to preserve the estate.
The Public Trustee, upon receipt of a report made to him by virtue of S 46 of LSA, should, under S 6 of the Public Trustee Act, make further inquiries as to the estate of the deceased. Where after making the inquiries, it appears to the Public Trustee that: the person died intestate; the deceased, having made a will, has omitted to appoint an executor; the persons appointed as executors in the will of the deceased are dead or have renounced probate or are unable to act; or the deceased has appointed the Public Trustee as the executor of his will, he may apply for a grant of representation under LSA
Where the estate of a deceased person consists of property whose gross value does not exceed Kshs. 20,000.00 and the deceased has died intestate or left a will in circumstances that require the Public Trustee to apply for a grant under S 6 of the PTA, the Public Trustee may take possession of the estate and administer the same without having to make an application to the court, for a grant of representation under S 8(1) PTA.
Where an estate of a deceased person consists of property whose gross value does not exceed Kshs. 5,000.00, the Public Trustee may issue a certificate of summary administration on the application of any person to whom probate or letters of administration may be granted. This would entitle the person holding the certificate to administer the estate without a grant of representation, and to pay out of the estate any debts or charges, and any surplus to the person or persons who are entitled to it.
Section 350 of the Penal Code provides against forgery of wills. S 339 tackles malicious destruction of a testamentary instrument. S 286 regards concealing a will with intent to defraud. Also look Ss 327, 358 et al.