1. THE LAW OF SUCCESSION ACT (cap 160 of the Laws of Kenya)
TYPES OF GRANT
By Lady Justice M.A. Ang’awa, Judge of the High Court of Kenya
2005

2. Types of Grants There are different types of grants.
3.1 Grant of Probate
3.2 Grant of letters of
Administration with
will annexed
3.3 Grant of Probate or
“Oral will”.*
3.4 Grant of letters of
administration intestate.
3.5 Resealing of Grant of Probate or
Grants letters of administration.
3.6 Limited Grant –ad colligenda bona defuncti.
3.7 Limited Grant – Grants for special purposes.

3. C PROCEDURE – Grant issued P & A 45
3.1 Grant of Probate A
B Forms
Form P.A 78 (petition).
Form P & A 3 (affidavit)
the original will plus
2 photocopies of the will &
original death certificate.
C PROCEDURE – Grant issued P & A 45

4. A 3.1 Grant of Probate The deceased died having written a will &
named the person to be in charge of his
affairs (executrix/executor). The said
person named is to apply for the grant of
probate unless he refuses or declines to
do so.

5. 3.1 Grant of Probate Procedure
If all documents are in order the file is placed before the Hon.Judge by the deputy registrar. It is given orders to have the matters advertised in the Kenya Gazette. If no objections are raised before 30 days, letters of grant Probate is issued with a copy of the will attached. Grant issued by Court (P & A 45).
Period of 6 months is given for the parties to confirm the said grant.
Accounts need to be submitted within 6 months after the confirmation of grant.

6. 3.2 Grant of letters of administration with Will annexed.
B Forms
Form P & A 79 (petition).
Form P & A 3 (affidavit)
the original Will plus
2 photocopies of the Will &
original death certificate.
C PROCEDURE – Grant issued P & A 43

7. 3.3 Grant of Probate of Proof or Oral Will.
Oral Will and
Dies within 3 months
Person
Under customary
Law.
Gives
The Beneficiary
can apply for
Grant of Probate, for proof
of oral Will.
Grant issued by
Court
(P & A44)

8. 3.4 Grant of Letters of Administration Intestate
Any person may apply
for grant of letters of
Administration intestate.
Priority is given
to a survivor and in the
order of Consanguinity
(i.e. wife, husband,
children, parents etc).
Person dies
Having not written a will.

9. A C PROCEDURE – Grant issued P & A 41
3.4 Grant of Letters of Administration Intestate General Basic Situation A
B Forms
the following forms should be filed.
Form P & A 80 (petition).
Form P & A 5 (affidavit)
Form P & A 11 (affidavit of justification of proposed sureties)
Form P & A 12 (affidavit of means)
Form P & A 57 (guarantee of personal sureties)
Death Certificate (mandatory).
C PROCEDURE – Grant issued P & A 41
Refer to 3.1

10. 3. 4 Grant of Letters of Administration Intestate 3. 4
3.4 Grant of Letters of Administration Intestate Widow or a widower – adult children as survivors. A
B Forms
the following forms should be filed.
Form P & A 80 (petition).
Form P & A 5 (affidavit)
Form P & A 12 (affidavit of means)
Death Certificate (mandatory).
Form P & A 38 (Consent form).
C PROCEDURE – Grant issued P & A 38a
Adult children are required to give their consent to
the widow/widower. Refer to 3.1

11. 3. 4 Grant of Letters of Administration Intestate 3. 4
3.4 Grant of Letters of Administration Intestate Widow or a widower – with minor children as survivors. A
B Forms
the following forms should be filed.
Form P & A 80 (petition).
Form P & A 5 (affidavit)
Form P & A 12 (affidavit of means)
Form P & A 11 (affidavit of justification of proposed suits)
P & A 57 (guarantee of personal sureties)
Death Certificate (mandatory).
C PROCEDURE – Grant issued P & A 41Minimum of two
persons must apply for the grant to create a continuing trust.
See section 58 of the Act. Refer to 3.4 (b)(I)

12. Points to Note
Section 84 deals with continuing trust where there is a life interest.
Section 56 (1) (b) – The total number of persons to apply for grant of letters of administration intestate should be four.
Rule 7 (8). Any of the four could swear an affidavit.

13. DIES abroad but has property in Kenya
3.5. Resealing (rules 42 (2)
A 3.5.1
Foreigner
DIES abroad but has property in Kenya
A grant is applied in his country
Foreign Grant is filed in the High Court of Kenya for Resealing.
Normal procedure including gazettement takes place.

14. 3.5 Resealing (rules 42 (2) A – 3.5.2 Kenyan
DIES abroad his domicile determines where
he should apply for the grant.
If he generally resides in Kenya but dies abroad
then the grant would apply in Kenya.
Important note – The Commonwealth Countries allow applications
for resealing in any of of its countries.
Normal procedure including gazettement takes place.

15. A 3.5 Resealing (rules 42 (2). B Forms
the following forms should be filed.
Form P & A 81 OR P & A 82 (petition)
Form P & A 7 (affidavit)
Certified copy of the grant issued by foreign country.
C PROCEDURE – Grant issued by court (P & A 81). The grant from
Foreign country is filed. The file is minuted. The notice to the Kenya
Gazette is issued. If there are no objections then letters are issued.
A grant given by the High Court can be used in the foreign courts
for resealing.

16. 3.6 Limited Grants A
In order to ensure that estate does not go to waste an applicant can apply for a limited grant.
Grant of administration ad colligenda bona defuncti. Under section 67 rule 36.

17. A B Forms 3.6 Limited Grants the following forms should be filed.
P & A 85 (petition)
P & A 19 (affidavit)
Copy of death certificate (where signature
endorsed by the applicant is required).
C Procedure – Grant issued (P & A 47).

18. 3.7 Grants for Special Purposes
Grants can be issued for special purposes.
These grants are as follows:
1) Probate Limited to purposes specified
2) Administrator Pendente lite
3) Grant of letters de bonis non.

19. 4 Who Is Entitled to A Grant?
The persons are entitled to apply for a grant
are:-
i) Persons who have been appointed in a
will as executors.
ii) Persons who are NOT a minor, of
unsound mind or bankrupt.
Any person can apply for a grant but priority is given to spouses, children, parents according to the degree of consanguinity. Not more than 4 people apply at once.

20. 5 Objections Section 68 & 69 (1) (i) Objection filed in triplicate
All Grants once applied for must be
advertised in the Kenya Gazette
Within 30 days
(i) Objection filed in triplicate
to the court.
No objections received
By the courts
Letters of Grants issued.
(ii) Objection entered into
a register by the register rule 17 (12)

21. Step 1 - The registrar sends a notification in Form
5 Objections Section 68 & 69 (1)
(iii) Registrar –
Step 1 - The registrar sends a notification in Form
P & A 61 to applicant
(proposed administrator).
Or alternatively he may send a copy of the
objection by post to the applicant’s address.

22. Step 2 - The registrar sends a notification in Form
5 Objections Section 68 & 69 (1)
(iii) Registrar –
Step 2 - The registrar sends a notification in Form
P & A 67 to objector requiring the objector to file an
answer to the petition by way of
cross application rule 17 (5)
If no objection has been filed the answer and cross petition,
the court may proceed as if no objections has been
raised (see section 69 (1) 70 & 71.

23. Step 4 – Judge gives directions as to who is
5 Objections Section 68 & 69 (1)
(iii) Registrar –
Step 3 – DIRECTIONS
The registrar refers the matter to court for
directions once all the
requisite paper has been filed.
Step 4 – Judge gives directions as to who is
entitled to start during the trial.
Step 5 – Registrar notifies both parties (petitioner & objector)
of the time & place set for hearing, of the petition, answer &
cross applications. The dispute is then determined (see section 69 (2).

24. Important Note
Objections may be withdrawn, by way of a notice to withdraw. Form P& A 66 (rule 17 (7))
Any objector – may amend his objections by lodging an amended answer & cross application. A copy is required to be served on the petitioner.

25. 6 Confirmation of a Grant
A After 6 months has expired
from the date a grant has been issued,
that grant may be confirmed if there is
no objective pending rule 40 (1).
B Forms
Where a grant has been issued for a Will.
Form 108 (application). Form 8 (affidavit).
(ii) Grant for letters of administration with Will annexed.
Form 108 (application)
Form 8 (affidavit)
(iii) Grant of letters of administration intestate.
Form 108 (application) Form 9 (affidavit)

26. 6 Confirmation of a Grant
Note
Before 6 months are up a grant may be issued in certain circumstances section 71 (3).
Form 109 (application)
Form 8 & 9 (affidavit) (Whichever is applicable).

27. 6.2 Grant letters of administration intestate.
Parties must be disclose the apportionment
of each survivor entitled to the estate.
A list of all the beneficiaries, names, ages and
Relationships must be disclosed see
rule P & A 40 (3) (a, b) (4).

28. C Procedure Step 1 – Forms filed, date taken in registry.
Applicant appears before Hon Judge.
Consent its confirmation of grant may
be field in certain cases Form 37
Dispensing attendance of parties to court.
Step 2 – Hon Judge or Magistrate
whatever the case confirms grant.

29. 6.2 Grant letters of administration intestate.
Protest
Rule 15
Rule 40
A - A person wishes to be informed when a grant is to be confirmed, he/she would file a caveat rule 15 (1) Form P & A 28.
Caveat recorded in a book/register.
On the day the matter comes for confirmation of
grant the Registrar notifies the applicant

30. 6.2 Grant letters of administration intestate.
Notifies the applicant in Form P & A 111.
Warning of the making of the consent.
Applicant requested to file form 10 if he wishes to object to
confirming of the grant.
If form 10 is not filed, grant is confirmed on
receipt of P & A 37 – being consent
of all parties.

31. 6.2 Grant letters of administration intestate.
If P & A is filed
Court orders directions to be taken in chambers on
notice Form 74 to applicant.

32. 6.2 Grants of Administration Intestate.
In a magistrates court – Procedure of directions is not taken, but the file is placed before High Court who determines the protest on its behalf.

33. 6.2 Grants of Administration Intestate.
A - Protest
At the time of hearing the
application for confirmation
of grant would be read to the
parties. The protest would also
be read to the parties.
If parties are in agreement &
satisfied – the grant may be
confirmed. If parties are not in
agreement the High Court hears
the full evidence of the parties.

34. 7 Revocation (C) Procedure
Section 76 rule 44
(A) Once grant has been confirmed, no objections or protest may be filed. Only options – revocations (with exception).
(B) Forms
P & A 107 (application)
P & A 14 (affidavit)
(C) Procedure
Applicant files Form 107 & P & A
14 in the High Court.
On receipt of application being
filed, the Registrar issues Form
P & A 70 (notice) to the
applicant (who is seeking
revocation) to attend the judge
exparte.

35. 7 Revocation Note: High Court on its own mention may revoke
Applicant takes dates &
appears before a Judge
for directions exparte.
Judge directs which persons
should be served with the
application (Form 107, 14).
These person are those
normally efficient by the
revocation. The mode of
service such persons
(personal or otherwise)
including the manner of efficiency
such service.
Applicant wishing to revoke grant then serves the persons named with Form P & A 107 & 14 and a notice under 68.
Each person served may fill an affidavit stating whether they support or oppose the application and the grounds for so doing.
All affidavits are filed by parties named to the proposed revocation.
Registrar – gives notice to all concerned to appear before High Court for hearing.
The Court, on the day set down for all parties to appear, may determine the application or make such orders that it deems fit.
Note: High Court on its own mention may revoke
grant rule 44 (5). If it does so, a notice in Form P & A 69 must be
issued & served on the persons concerned, before revocation is done.

36. Reasons for Revocation
Section 76
Where proceedings obtained were defective in substance. 76 (a)
Grant obtained fraudulently. 76 (b)
Grant obtained by means of untrue allegations or facts. 76 (c)
Person whom the grant was paid to, failed to apply for confirmation of grant within one year or to proceed to produce inventory or accounts of the administration of grants as required under section 38 (e), (g) Section 76 (d).

37. 8 Citations Rule 21, 22, 23
(a) What happens if the person entitled to apply for a grant fails to do so?
Any applicant may apply but the procedure is by way of a citation signed by the registrar and supported by an affidavit.
(b) Forms
(I) Where there is a Will P & A 31.
(II) Where there is no Will P & A 32.
(III) Creditors P & A 36.
Procedure
Step 1 - Service of citation done on the citor with a copy of the form duly sealed. (Method of service is as directed as per the registrar).
Step 2 – Persons cited once served is to enter appearance within 15 days.
Step 3 – If no appearance has been entered, applicant citor may petition for grant.
Step 4 – in the alternative summonses to be taken out or notices to such person cited to take out the grant or by other person.
NB Proof of services required.
Once application for citation is granted. The letters of administration is applied in the normal way.

38. 8 Citations Rule 21, 22, 23 Purchaser
(a) Public trustee has prior rights over an estate over a creditor.
Creditor/purchaser asks consent of public trustee to apply for letters.
If consent is granted purchaser and creditor may prove the estate owes them money by attaching a sales agreement.
Purchaser/creditor applies for grant of letters by serving citations on all the beneficiaries.

39. 9 Death Certificate
All applications for grants must be accompanied with a death certificate.
The consolidated practise rules states “a death certificate must accompany any application for probate or letters of administration.
(a) If the application is not made by an advocate
(b) If the death took place outside Kenya. (Section 118 presumption of death, must be made formerly in the civil courts.

40. 10 Renounciation Rule 18
(a) All survivors must be notified of the probate.
(b) Survivors may renounce the estate whether testate or intestate.
Forms
P & A 98 to 102.
Procedure
Renounciation is filed. No retraction is permitted at a later stage.

41. Rectification of Grant Rule 14 (1)
(a) Rectification may be
made before a grant is
issued.
(b) Forms
P & A 62 (Notice) Filed in original application.
No affidavit required.
(c) Procedure
Notice served on objector
Where there are no objectors or amendments are minor. Registrar may permit amendments without notice to any parties.
Rectification after a grant has been issued, with or without a confirmed grant. Section 74 rule 43.
Forms
P & A 110 summons for rectification of grant.
P & A 13 (affidavit) (Unless exempted by the registrar).
Procedure – Application placed before court without delay.
Court makes order as rectification of grants. Alternatively, court may direct notices to issue to all parties first, including applicant to attend court.
NB – In both cases of rectification the procedure is administratively in the first instances.

42. 12 Appeals Section 50
Appeals lie from the Magistrates' court to the High Courts.
The decision is final.
Muslims’ estate can appeal to the Court of Appeal on a point of Law, but with leave of the Court (Section 50 LN 21/90.

43. 13 Public Trustee
Where there is no one to administer the estate of the deceased, the public trustee after 6 months takes over the administration by placing a notice in the Kenya Gazette.
After an expiry of such notice the public trustee applies for a grant in the same procedure as applied in the act as for other litigants.

44. 14 Trust Companies
Trust companies are provided for!