A Casebook on the Law of Succession [1 ed.] 9789966031914, 9789966744852

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Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved. A Casebook on the Law of Succession, LawAfrica Publishing (K)Limited, 2010. ProQuest Ebook Central,

Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

A

CASEBOOK

ON THE

LAW OF

SUCCESSION

Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

A

CASEBOOK ON THE

LAW OF

SUCCESSION

William Musyoka

Published by: LawAfrica Publishing (K) Ltd Co-op Trust Plaza, 1st Floor Lower Hill Road P.O. Box 4260 - 00100 GPO Nairobi, Kenya Phone: +254 20 2722579/80 Fax: +254 20 2722592 LawAfrica Publishing (U) Ltd Crown House, 1st Floor Plot 4A Kampala Road P.O. Box 6198 Kampala, Uganda Phone: +256 41 255808 Fax: +256 41 347743 LawAfrica Publishing (T) Ltd Co-Architecture Building, 7th Floor Makunganya Street P.O. Box 38564 Dar-es-Salaam, Tanzania Phone: +255 22 2120804/5 Fax: +255 22 2120811 Email: [email protected] Website: www.lawafrica.com

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© W Musyoka 2010; LawAfrica ISBN 9966-7448-5-1

TABLE

OF

CONTENTS

Preface...................................................................................................... Acknowledgement .................................................................................... Table of Statutes........................................................................................ Table of Treaties ........................................................................................ List of Abbreviations and Law Reports ...................................................... Table of Cases ...........................................................................................

Page xi xiii xv xxxv xxxvii xli

Part one: Introduction 1 2.

Introduction ......................................................................................... 1.1 Introduction ................................................................................ The Law of Succession Applying in Kenya After 1981 ........................... 2.1 the Law of Succession Act is the general law of succession in Kenya ...................................................................................... 2.2 the law applying to estates of persons dying before the Act came into force ................................................................ 2.3 the Application of section 3(2) of the Judicature Act (Chapter 8, Laws of Kenya) in succession causes.............................................. 2.4 African Customary Law, The Repugnancy Clause and succession matters ........................................................................ 2.5 the Constitution and the Repugnancy Clause .............................. 2.6 the application of Islamic Law ...................................................... 2.7 the application of Foreign Law .....................................................

1 3 15 15 21 23 33 38 40 42

Part two: Testate Succession

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3.

4.

The Nature and Function of Wills ......................................................... 3.1 a will disposes of property ............................................................ 3.2 conditional wills........................................................................... 3.3 gifts in contemplation of death ..................................................... The Creation of a Valid Will .................................................................. 4.1 introduction ................................................................................. 4.2 mental or testamentary capacity.................................................... 4.3 insane delusions ........................................................................... 4.4 burden of proof ............................................................................ 4.5 the circumstances of the making of the will knowledge and approval................................................................................. (a) undue influence .................................................................... (b) suspicious circumstances ........................................................ (c) mistake ................................................................................. (d) fraud ..................................................................................... (e) time of knowledge and approval ............................................ (f) burden of proof of lack of knowledge and approval................

47 47 54 57 65 65 65 104 105 107 107 110 118 123 125 128

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4.6

5

6

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7

execution and attestation .............................................................. (a) signature ............................................................................... (b) position of the signature of the testator .................................. 4.7 will written in combination of ink and pencil .............................. 4.8 incorporation documents by reference ......................................... 4.9 oral will ....................................................................................... 4.10 privileged will .............................................................................. 4.11 disregarding a will ........................................................................ Revocation, Alteration and Revival of Will ............................................ 5.1 introduction ................................................................................. 5.2 express revocation ........................................................................ 5.3 implied revocation ....................................................................... 5.4 revocation by destruction ............................................................. (a) actual destruction .................................................................. (b) presumption concerning revocation by destruction ................ (c) the doctrine of conditional revocation ................................... 5.5 revocation by marriage................................................................. 5.6 revocation by divorce ................................................................... 5.7 alteration of wills ......................................................................... 5.8 revival of wills .............................................................................. Gifts by Will and Their Failure .............................................................. 6.1 introduction ................................................................................. 6.2 gifts by will .................................................................................. 6.3 the doctrine of ademption............................................................ 6.4 the doctrine of lapse..................................................................... 6.5 uncertainty .................................................................................. Construction of Wills ............................................................................ 7.1 introduction ................................................................................. 7.2 intention of the testator................................................................ 7.3 special or technical words ............................................................. 7.4 the dictionary principle ................................................................ 7.5 ascertainment of beneficiaries and the subject matter of gifts ........

135 149 151 154 154 160 170 173 179 179 179 180 181 181 186 189 193 195 196 198 203 203 203 205 209 210 217 217 217 226 228 229

Part Three: Intestacy 8

Intestate Succession............................................................................... 8.1 introduction ................................................................................. 8.2 customary law and part v of the law of succession act ................... 8.3 rights of a surviving spouse .......................................................... 8.4 the rights of children .................................................................... (a) an only child is entitled to whole net intestate estate.............. (b) surviving children share the estate equally.............................. (c) children taken into the family................................................

243 243 243 252 255 255 259 262

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(d) (e) (f) (g)

8.5 8.6 8.7

children of adulterous unions ................................................ rights of daughters ................................................................ bringing property to the hotchpotch ..................................... the life interest is held in trust by surviving spouse for benefit of the children ..................................................... rights of other relatives of the deceased......................................... division of a polygamist’s estate..................................................... devolution to the state..................................................................

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264 268 278 281 283 290 296

Part Four: Protection of Estates 9

Protection Provisions ............................................................................ 9.1 introduction ................................................................................. 9.2 intermeddling .............................................................................. 9.3 public officers and protection of estates ........................................

301 301 301 310

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Part Five: Grants of Representation 10 Grants of Representation ..................................................................... 10.1 introduction ................................................................................. 10.2 executors and administrators ........................................................ 10.3 person entitled to a grant ............................................................. 10.4 grant of probate ........................................................................... 10.5 grant of letters of administration ................................................... 10.6 limited grants ............................................................................... (a) general .................................................................................. (b) grant limited in duration – (paragraph 1-3) ........................... (c) grant for the use and benefit of others having right ............... (d) grant for special purposes ...................................................... (e) grants with exception ............................................................ (f) procedure for limited grant ................................................... (b) ad colligenda bona ................................................................ (c) de bonis non ......................................................................... 10.7 foreign grants ............................................................................... 11 Probate Jurisdiction............................................................................... 11.1 introduction ................................................................................. 11.2 original jurisdiction...................................................................... (a) High Court........................................................................... (b) Resident Magistrate’s Court .................................................. (c) arbitration ............................................................................. 11.3 appellate jurisdiction .................................................................... 11.4 inherent jurisdiction..................................................................... 11.5 the Civil Procedure and probate practice ......................................

319 319 319 323 332 336 355 355 357 357 358 358 359 360 365 370 375 375 375 375 379 383 386 397 403

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12 Non-contentious Probate...................................................................... 12.1 introduction ................................................................................. 12.2 citations ....................................................................................... 12.3 renunciation................................................................................. 12.4 making of grants .......................................................................... 12.5 confirmation of grants.................................................................. 12.6 rectification of grants ................................................................... 13 Contentious Probate ............................................................................. 13.1 introduction ................................................................................. 13.2 objections to the making of grant ................................................. 13.3 revocation of grants ...................................................................... 13.4 revocation and confirmation ........................................................ 13.5 review of probate orders and decrees ............................................ 13.6 applications under section 9 of the Public Trustee Act ................... 13.7 viva voce or oral evidence ............................................................ 13.8 costs.............................................................................................

411 411 411 414 414 422 434 441 441 441 459 493 499 501 505 507

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Part Six: Administration of Estates 14 Collection, Realisation and Management of Estates ............................... 14.1 introduction ................................................................................. 14.2 collection and preservation of assets .............................................. 14.3 power to enforce causes of action ................................................. 14.4 power of sale, mortgage and leasing .............................................. 14.5 power of investment ..................................................................... 14.6 protection of personal representatives ........................................... 15 Payment of Expenses, Debts and Pecuniary Legacies .............................. 16 Distribution of the Estate ...................................................................... 16.1 introduction ................................................................................. 16.2 pendency of contentious proceedings ........................................... 16.3 ascertaining the beneficiaries and creditors ................................... 16.4 transition from personal representative to trustee .......................... 16.5 expense on preservation of gifts .................................................... 17 Remedies of Beneficiaries and Creditors ............................................... 17.1 introduction ................................................................................. 17.2 remedies through administration proceedings ............................... 17.3 action against personal representatives ........................................... 17.4 defences of personal representatives .............................................. (a) defence where personal representatives have acted honestly, reasonably and in good faith .................................... (b) the common law defence where beneficiaries have acquiesced to devastavit ......................................................... 17.5 actions against the recipients of assets............................................

515 515 515 523 525 531 532 537 545 545 545 546 548 553 555 555 558 564 574 574 577 581

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18 Estate Accounts ..................................................................................... 18.1 introduction ................................................................................. 18.2 rights of beneficiaries to an account ............................................. 18.3 accounts under the Law of Succession Act ....................................

ix

593 593 593 596

Part Seven: Post-Mortem Alterations 19 Dependency and Family Provisions ....................................................... 19.1 dependency and family provisions ................................................ 19.2 categories of applicants ................................................................. 19.3 jurisdiction and procedure............................................................ 19.4 the circumstances to be considered ............................................... 19.5 nature of the provision ................................................................. 20 Disclaimers and Variations ..................................................................... 20.1 disclaimers and variations .............................................................

603 603 613 649 655 670 675 675

Part Eight: The General Principles of African Customary Law and Islamic Law of Succession

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21 African Customary Law of Succession................................................... 21.1 distribution during lifetime .......................................................... 21.2 distribution upon intestacy ........................................................... 21.3 administration of estates ............................................................... 22 Islamic Law of Succession ..................................................................... 22.1 general principles of Islamic Law of Succession ............................ 22.2 testate succession .......................................................................... 22.3 intestacy....................................................................................... 22.4 administration of estates ............................................................... 22.5 conflict of Islamic and African customary succession laws .............

679 679 679 686 691 691 692 696 699 700

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PREFACE The law text, Law of Succession (LawAfrica Publishing (K) Ltd), was published in 2006. Several hundred decisions, on succession and related matters, made by the superior courts in Kenya, as well dozens of others from the Commonwealth are cited in the text. Most of the Kenyan decisions are unreported. The Casebook on the Law of Succession is designed to complement the text¸ by availing easy access to the pertinent portions of some of the key cases cited in the text.

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The Casebook on the Law of Succession is divided into eight parts, each containing cases dealing with particular aspects of succession. Part One is introductory and the cases in this section dwell on the historical development of succession law in Kenya. Part Two covers testate succession, with the cases in this part touching on such matters as the making of wills, revocation, construction and failure of gifts. The cases in Part Three are on intestate succession. Part Four carries cases on protection provisions while Part Five is on grants of representation. The cases covered in Part Six are on various aspects of administration of estates, while Part Seven concerns itself with postmortem alterations. Part Eight contains cases on Islamic and African customary laws of succession.

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ACKNOWLEDGEMENTS

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The compilation of a work of this size involves very many people. I thank all those who provided support to me during the course of the preparation of this casebook. I am particularly grateful to staff at the High Court and University of Nairobi (Parklands Campus) libraries, and at Musyoka, Wambua & Katiku, Advocates, who assisted me in such tasks as the collection of the decisions, photocopying and binding.The friendship, encouragement and intellectual support provided by Mr. Francis Muigai, Advocate, is appreciated. Credit is given to Mr. Mwanza for proof-reading the final draft of the manuscript. Of course, I owe a debt of gratitude to my family, friends, students and clients who often had to put up with my unavailability to them during the course of the preparation of the book.

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TABLE

OF

STATUTES

A Kenyan Statutes Administration The African Christian Marriage and Divorce Act Chapter 151 s 9(1),(3),(4) ..................................................................................................... 9 ............................................................................................................ 51 The African Wills Ordinance 1961 s4 .......................................................................................................... 117 The Armed Forces Act s 219 .......................................................................................................... 170 s 220 .......................................................................................................... 515 B The Births and Deaths Registration Act Chapter 149 s 26(3),(4) ...................................................................................................... 84 s 12 ............................................................................................................ 99

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C The Children Act, 8 of 2001 ............................................................................ 454 The Civil Procedure Act Chapter 21 s2 .......................................................................................................... 361 .......................................................................................................... 509 s3 .......................................................................................................... 389 .......................................................................................................... 391 .......................................................................................................... 397 .......................................................................................................... 405 .......................................................................................................... 408 .......................................................................................................... 410 .......................................................................................................... 426 s 3(1) ............................................................................................................ 48 s 18 .......................................................................................................... 406 s 47 .......................................................................................................... 388 s 66 .......................................................................................................... 387 .......................................................................................................... 391 .......................................................................................................... 395 s 75 .......................................................................................................... 387 .......................................................................................................... 390 .......................................................................................................... 395

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The Companies Act Chapter 486 s 28 .......................................................................................................... 364 s 211 .......................................................................................................... 363 .......................................................................................................... 364 The Constitution of Kenya s 14 .............................................................................................................. 8 s 26(3) .............................................................................................................. 8 s 70 .......................................................................................................... 654 s 82 (a),(1,)(3),(4),(5), (8) ................................................................................ 17 ............................................................................................................ 37 ............................................................................................................ 39 ............................................................................................................ 41 s 82(4)(b) ........................................................................................................ 38 The Constitutional Amendment Act No. 9 of 1997 ............................................ 17 E The East African Marriage Ordinance 1902 ......................................................... 7 The East African Order in Council, 1897 s5 ............................................................................................................ 12 s 11(c) ............................................................................................................ 13 The Evidence Act 1963 s 51 ............................................................................................................ 26 s 60(2) ............................................................................................................ 26 s 118 ............................................................................................................ 99 .......................................................................................................... 100 .......................................................................................................... 249

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F Fatal Accidents Act Chapter 32 ........................................................................ .......................................................................................................... .......................................................................................................... .......................................................................................................... ..........................................................................................................

338 342 344 349 353

H The Hindu (Marriage, Divorce and Succession) Ordinance Chapter 149 s9 .............................................................................................................. 9 s 3(1) .............................................................................................................. 9 s 11 ............................................................................................................ 10 I The Income Tax Act s 87(3) .......................................................................................................... 387

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The Inheritance (Family Provisions) Act .............................................................. 6 Interpretation and General Provisions Act (Cap 2) s 3(4) .......................................................................................................... 536 s 72 .......................................................................................................... 359 J The Judicature Act Chapter 8 s3 ............................................................................................................ 17 ............................................................................................................ 36 ............................................................................................................ 53 .......................................................................................................... 145 .......................................................................................................... 686 s 3(2) (1) ........................................................................................................ 17 ............................................................................................................ 23 ................................................................................................... 28;29;30 ............................................................................................................ 33 ............................................................................................................ 36 ............................................................................................................ 38 ............................................................................................................ 48 ............................................................................................................ 53 .......................................................................................................... 145 .......................................................................................................... 294 .......................................................................................................... 633 .......................................................................................................... 661 .......................................................................................................... 669 K

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Kenya (Jurisdiction of Courts and Pending Proceedings) Regulations Reg 4 ........................................................................................................ 25;26 L The Land Titles Act Chapter 282 s 20(2)(c) ..................................................................................................... 220 The Law of Succession Act Chapter 160 s2 .......................................................................................................... 308 .......................................................................................................... 352 .......................................................................................................... 364 .......................................................................................................... 677 s 2(1),(2),(3)........................................................................................... 15;16;17 ............................................................................................................ 19 ........................................................................................................ 21;22 ............................................................................................................ 34 ............................................................................................................ 39

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........................................................................................................ 40;41 .......................................................................................................... 131 .......................................................................................................... 276 .......................................................................................................... 291 .......................................................................................................... 295 .......................................................................................................... 354 .......................................................................................................... 484 .......................................................................................................... 650 .......................................................................................................... 652 .................................................................................................... 683;684 s3 ............................................................................................................ 10 .......................................................................................................... 144 .......................................................................................................... 249 .......................................................................................................... 295 .......................................................................................................... 344 .......................................................................................................... 618 .......................................................................................................... 625 .......................................................................................................... 642 s 3(5) .......................................................................................................... 265 .......................................................................................................... 444 .......................................................................................................... 616 .......................................................................................................... 624 .......................................................................................................... 626 .......................................................................................................... 631 .......................................................................................................... 634 .......................................................................................................... 637 .......................................................................................................... 642 .......................................................................................................... 645 s 4(1)(a),(b),3(1),(5), (2), ................................................................................. 42 ........................................................................................................ 43;44 ............................................................................................................ 86 s 5,(1),(3),(4), ................................................................................................. 65 ............................................................................................................ 82 ............................................................................................................ 93 ........................................................................................................ 94;95 .......................................................................................................... 116 .......................................................................................................... 484 .......................................................................................................... 604 .......................................................................................................... 621 .......................................................................................................... 635 .......................................................................................................... 641 .......................................................................................................... 669

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s 7(2) ............................................................................................................ 23 s8 .......................................................................................................... 179 s9 ............................................................................................................ 86 .......................................................................................................... 160 s 9(1)(a) ....................................................................................................... 169 .......................................................................................................... 244 s 10 .......................................................................................................... 244 s 11 ............................................................................................................ 94 .......................................................................................................... 130 .................................................................................................... 134;135 .................................................................................................... 142;143 .......................................................................................................... 149 .......................................................................................................... 196 s 12 .......................................................................................................... 154 s 16 .......................................................................................................... 380 s 18(1) .......................................................................................................... 180 s 19 .......................................................................................................... 193 s 20 .......................................................................................................... 196 .......................................................................................................... 197 s 21 .......................................................................................................... 198 s 22 .......................................................................................................... 217 s 23 .......................................................................................................... 205 .......................................................................................................... 209 s 26 ............................................................................................................ 27 ............................................................................................................ 28 ............................................................................................................ 93 ............................................................................................................ 98 .......................................................................................................... 141 .......................................................................................................... 146 .......................................................................................................... 174 .......................................................................................................... 283 .......................................................................................................... 297 .......................................................................................................... 322 .......................................................................................................... 444 .......................................................................................................... 448 .................................................................................................... 483;484 .................................................................................................... 603;604 .......................................................................................................... 605 .......................................................................................................... 609 .......................................................................................................... 610 .......................................................................................................... 612 .......................................................................................................... 616

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.......................................................................................................... 620 .......................................................................................................... 623 .......................................................................................................... 625 .......................................................................................................... 628 .......................................................................................................... 649 .......................................................................................................... 650 .......................................................................................................... 658 .......................................................................................................... 664 .......................................................................................................... 673 .......................................................................................................... 685 s 27 ............................................................................................................ 19 .......................................................................................................... 449 .......................................................................................................... 665 .......................................................................................................... 670 s 26-29 .......................................................................................................... 28 ............................................................................................................ 29 .......................................................................................................... 661 s 28(g) ............................................................................................................ 30 .......................................................................................................... 670 s 28 ............................................................................................................ 30 ............................................................................................................ 32 .......................................................................................................... 101 .......................................................................................................... 448 .......................................................................................................... 610 .......................................................................................................... 612 .......................................................................................................... 647 .................................................................................................... 655;656 .......................................................................................................... 660 .......................................................................................................... 664 .......................................................................................................... 670 .......................................................................................................... 673 s 29 ............................................................................................................ 19 ............................................................................................................ 86 ............................................................................................................ 99 .......................................................................................................... 100 .......................................................................................................... 432 .......................................................................................................... 444 .......................................................................................................... 445 .......................................................................................................... 448 .......................................................................................................... 613 .................................................................................................... 619;620

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.......................................................................................................... 630 .......................................................................................................... 638 s 29(a)(b) ....................................................................................................... 34 .......................................................................................................... 146 .................................................................................................... 627;628 .................................................................................................... 637;638 .......................................................................................................... 652 .......................................................................................................... 659 s 30 .......................................................................................................... 249 .......................................................................................................... 649 s 31 ........................................................................................................ 57;58 .......................................................................................................... 407 s 32 ............................................................................................................ 38 .......................................................................................................... 176 .......................................................................................................... 243 .......................................................................................................... 245 .................................................................................................... 248;249 .......................................................................................................... 272 .......................................................................................................... 287 s 33 ............................................................................................................ 29 .......................................................................................................... 243 .......................................................................................................... 245 .......................................................................................................... 251 .......................................................................................................... 286 .......................................................................................................... 660 s 35(b)(1)(2)(4)(5) ........................................................................................ 252 .......................................................................................................... 255 .......................................................................................................... 272 .......................................................................................................... 276 s 36(1)(3) ..................................................................................................... 252 .......................................................................................................... 283 .......................................................................................................... 285 s 37 .......................................................................................................... 253 s 35-38 ........................................................................................................ 251 .......................................................................................................... 255 .......................................................................................................... 259 .......................................................................................................... 262 s 39 .......................................................................................................... 248 .......................................................................................................... 283 .......................................................................................................... 290 s 39(1)(c)(2) ........................................................................................... 283;284 .......................................................................................................... 288

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.......................................................................................................... 296 .......................................................................................................... 326 s 35-40 ........................................................................................................ 393 s 40(1) ........................................................................................................... 20 .......................................................................................................... 176 .......................................................................................................... 245 .......................................................................................................... 292 .......................................................................................................... 295 .......................................................................................................... 429 s 40 ........................................................................................................ 20;21 ............................................................................................................ 31 .......................................................................................................... 174 .......................................................................................................... 177 .......................................................................................................... 244 .......................................................................................................... 250 .......................................................................................................... 252 .......................................................................................................... 254 .......................................................................................................... 280 ............................................................................................. 290;291;292 .......................................................................................................... 294 .......................................................................................................... 296 .......................................................................................................... 324 .......................................................................................................... 500 .......................................................................................................... 651 s 41 .......................................................................................................... 260 .......................................................................................................... 286 .......................................................................................................... 293 .......................................................................................................... 667 s 42 .......................................................................................................... 260 .......................................................................................................... 276 .......................................................................................................... 280 s 44(1) .......................................................................................................... 379 s 45 .......................................................................................................... 301 .......................................................................................................... 303 .......................................................................................................... 308 .......................................................................................................... 314 .......................................................................................................... 528 .......................................................................................................... 529 s 45(1)(2) ..................................................................................................... 305 .......................................................................................................... 312 .......................................................................................................... 408 .......................................................................................................... 529

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.................................................................................................... 309;310 .......................................................................................................... 312 .......................................................................................................... 314 s 47 ............................................................................................................ 93 ............................................................................................................ 98 .................................................................................................... 308;309 .......................................................................................................... 314 .......................................................................................................... 362 .......................................................................................................... 376 ............................................................................................. 377;378;379 .......................................................................................................... 381 .......................................................................................................... 383 .................................................................................................... 386;387 .......................................................................................................... 391 .......................................................................................................... 395 .......................................................................................................... 410 s 48 .......................................................................................................... 379 .......................................................................................................... 382 s 49 .......................................................................................................... 379 s 50(A) ......................................................................................................... 393 s 51(4) .......................................................................................................... 285 .......................................................................................................... 418 s 51(2)(g) ............................................................................................... 284;285 s 51 .......................................................................................................... 415 s 52 .......................................................................................................... 415 s 53 .......................................................................................................... 332 s 53(1)(a)(i) .................................................................................................. 332 s 53(a)(ii)(b) ................................................................................................. 611 s 54 .......................................................................................................... 355 .......................................................................................................... 357 .......................................................................................................... 362 s 55 .......................................................................................................... 422 .......................................................................................................... 529 s 56 .......................................................................................................... 331 s 56(1)(b) ..................................................................................................... 323 s 58 .......................................................................................................... 312 .......................................................................................................... 321 .......................................................................................................... 323 .................................................................................................... 417;418 .......................................................................................................... 433 .......................................................................................................... 489 s 59 .......................................................................................................... 414

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s 60 .......................................................................................................... 323 s 60(d) .......................................................................................................... 467 s 62 .......................................................................................................... 323 .......................................................................................................... 411 s 66 .......................................................................................................... 313 .......................................................................................................... 324 .......................................................................................................... 341 .......................................................................................................... 416 .......................................................................................................... 418 .......................................................................................................... 420 .................................................................................................... 453;454 .......................................................................................................... 473 .......................................................................................................... 492 s 66(d) .......................................................................................................... 468 s 67 .......................................................................................................... 441 ............................................................................................................ 98 s 67(1) .......................................................................................................... 363 .......................................................................................................... 441 s 68 .......................................................................................................... 441 .......................................................................................................... 473 s 68(2) .......................................................................................................... 441 .......................................................................................................... 474 s 69 .......................................................................................................... 441 s 70 .......................................................................................................... 441 .......................................................................................................... 654 s 71 .......................................................................................................... 368 .................................................................................................... 422;423 .......................................................................................................... 426 .......................................................................................................... 428 .......................................................................................................... 529 s 71(2)(3)(4) .................................................................................................. 273 .......................................................................................................... 383 .......................................................................................................... 466 .......................................................................................................... 490 .......................................................................................................... 547 s 72 .......................................................................................................... 422 s 72(a) .......................................................................................................... 545 .......................................................................................................... 649 s 73 .......................................................................................................... 240 .......................................................................................................... 422 s 74 .......................................................................................................... 434

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.................................................................................................... 435;467 ............................................................................................................ 23 s 76 .......................................................................................................... 272 .......................................................................................................... 273 .......................................................................................................... 380 .......................................................................................................... 382 .......................................................................................................... 401 .......................................................................................................... 408 .......................................................................................................... 421 .......................................................................................................... 459 .......................................................................................................... 460 .......................................................................................................... 463 .......................................................................................................... 467 .......................................................................................................... 469 .......................................................................................................... 471 .......................................................................................................... 473 .................................................................................................... 475;476 .......................................................................................................... 481 .......................................................................................................... 486 .......................................................................................................... 489 .......................................................................................................... 491 .......................................................................................................... 496 s 76(a)(b)(e) ................................................................................................. 285 .................................................................................................... 368;369 .......................................................................................................... 428 s 77 .......................................................................................................... 370 s 79 .......................................................................................................... 400 .......................................................................................................... 438 ............................................................................................. 519;520;521 s 80(2),(1) .................................................................................................... 322 .......................................................................................................... 335 .......................................................................................................... 341 .................................................................................................... 349;350 s 81 .......................................................................................................... 513 s 82(a)(b) ..................................................................................................... 339 .......................................................................................................... 344 .......................................................................................................... 437 .......................................................................................................... 523 .......................................................................................................... 525 .......................................................................................................... 594 s 82(1)(2)(3)(4) .............................................................................................. 41

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.......................................................................................................... 339 .......................................................................................................... 403 s 83 .......................................................................................................... 400 .................................................................................................... 437;438 .......................................................................................................... 513 .......................................................................................................... 521 .......................................................................................................... 530 s 84 .......................................................................................................... 513 .......................................................................................................... 548 s 85 .......................................................................................................... 513 s 86 .......................................................................................................... 513 s 87 .......................................................................................................... 513 s 89 .......................................................................................................... 513 s 90 .......................................................................................................... 513 .......................................................................................................... 531 s 91 .......................................................................................................... 513 s 92, .......................................................................................................... 472 .......................................................................................................... 532 .......................................................................................................... 574 .......................................................................................................... 593 s 93 ............................................................................................................ 23 .......................................................................................................... 467 .......................................................................................................... 472 .......................................................................................................... 478 .......................................................................................................... 595 s 94 .......................................................................................................... 598 s 95 .......................................................................................................... 599 Schedule V Part VII .......................................................................................................... 16 ............................................................................................................ 21 ............................................................................................................ 40 .......................................................................................................... 395 .......................................................................................................... 513 .......................................................................................................... 650 .......................................................................................................... 699 Part V ............................................................................................................ 31 ............................................................................................................. 86 .......................................................................................................... 147 .......................................................................................................... 176 .......................................................................................................... 241 .................................................................................................... 243;244

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.......................................................................................................... 247 .......................................................................................................... 250 .......................................................................................................... 261 .......................................................................................................... 322 .......................................................................................................... 324 .......................................................................................................... 379 Part III (26) ................................................................................................... 29 ............................................................................................................ 31 ............................................................................................................ 98 .......................................................................................................... 322 .......................................................................................................... 484 .......................................................................................................... 627 .......................................................................................................... 630 .................................................................................................... 641;642 .................................................................................................... 650;651 .......................................................................................................... 654 .......................................................................................................... 661 Part II s (17) .................................................................................................. 96 The Law Society Act s 5(a) .......................................................................................................... 311 s 27(k) .......................................................................................................... 313 The Law Reform Act Chapter 26 s2 .......................................................................................................... 339 .......................................................................................................... 347 2(1) .......................................................................................................... 337 s 3(b) .......................................................................................................... 338 s 4(5) .......................................................................................................... 338 s 5(2) .......................................................................................................... 338 The Law Reform (Miscellaneous Provisions) Act 1934 ..................................... 340 The Limitation of Actions Act Chapter 22 s 20(1)(b) ...................................................................................................... 552 .......................................................................................................... 553 M Mohammedan Marriage, Divorce and Succession Ordinance ............................ 701 The Marriage Act Chapter 150 s3 .......................................................................................................... 444 .......................................................................................................... 636 s4 .......................................................................................................... 634 s 11(1)(d) ....................................................................................................... 51 s 37 .......................................................................................................... 265 .......................................................................................................... 266

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.......................................................................................................... 444 .................................................................................................... 614;615 .......................................................................................................... 617 .......................................................................................................... 624 .......................................................................................................... 626 .......................................................................................................... 634 .......................................................................................................... 637 .......................................................................................................... 642 .......................................................................................................... 634 .......................................................................................................... 615 .......................................................................................................... 634 N

The Native Christian Marriage Ordinance 1904 s 39 ............................................................................................................... 7 The Native Lands Trust Ordinance s 49(2) .......................................................................................................... 425 O Order in Council 1902, article 20 ..................................................................... 699

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P The Partnership Act, Chapter 29 s 46 .......................................................................................................... 564 The Public Trustee Act Chapter 168 s7 .................................................................................................... 453;454 s9 .......................................................................................................... 501 s 9(1),(2) ...................................................................................................... 501 s 15(1) .......................................................................................................... 515 s 24 .......................................................................................................... 537 s 25(2), (3) .................................................................................................... 516 R Real Estates Charges Act, 1854.......................................................................... The Registered Land Act Chapter 300 s 30 .......................................................................................................... s 112 .......................................................................................................... s 119(1), (2) .................................................................................................. s 126(3) ........................................................................................................ s 143 .......................................................................................................... The Registration of Business Names Act (499) s9 ..........................................................................................................

541 522 557 557 557 557 536

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S Statute of Limitation (Chapter 11 Laws of Kenya 1948) .................................... 551 T The Trustee Act s2 .......................................................................................................... s 3(1) .......................................................................................................... s 28 .......................................................................................................... s 29 .......................................................................................................... s 30 .......................................................................................................... s 31 .......................................................................................................... s 32 .......................................................................................................... s 60 .......................................................................................................... s 61 .......................................................................................................... The Trusts of Land Act s2 .......................................................................................................... s 51 .......................................................................................................... s 52 .......................................................................................................... .......................................................................................................... s 53 .......................................................................................................... s 56 .......................................................................................................... The Trustee Ordinance, 1929 s2 .......................................................................................................... Part II .......................................................................................................... Workman’s Compensation Act .........................................................................

548 513 532 532 532 532 532 574 575 548 532 532 574 532 530 527 527 339

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Legal Notices The Legal Notice 223/92) s 47 .......................................................................................................... 356 r 36(3) .......................................................................................................... 356 Legal Notice number 93 of 1981 ....................................................................... 19 ............................................................................................................ 35 .......................................................................................................... 248 Legal Notice number 94 of 1981 ..................................................................... 252 Legal Notice number 279 of 1995 ............................................................. 312;313

Tanzania Court Decree of Zanzibar s7 .......................................................................................................... 695

Uganda Ugandan Succession Act s 28 .......................................................................................................... 502

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Indian Statutes The Hindu Wills Act, of 1870 s2 ............................................................................................................ 13 The Indian Succession Act, of 1865 s2 ............................................................................................................ 12 s 46 ............................................................................................................ 12 .......................................................................................................... 114 .......................................................................................................... 116 .......................................................................................................... 160 s 48 ............................................................................................................ 12 s 49 ............................................................................................................ 12 s 50 ............................................................................................................ 12 ............................................................................................................ 13 .......................................................................................................... 164 .......................................................................................................... 166 s 51 .......................................................................................................... 160 s 55 ............................................................................................................ 12 s 57-77 .......................................................................................................... 12 s 82 ............................................................................................................ 12 s 85 ............................................................................................................ 12 s 88-103 ........................................................................................................ 12 s 106-177 ...................................................................................................... 12 s 187 ............................................................................................................ 12 s 331 ............................................................................................................ 12 Hindu Marriage, Divorce and Succession Ordinance Chapter 149 s9 .............................................................................................................. 9 s 3(1) .............................................................................................................. 9 s 11 ............................................................................................................ 10 The Indian Succession Act of 1865 ....................................................................... 8 The Indian Probate and Administration Act, of 1881 s 82 .......................................................................................................... 591 Indian Succession Act, 1925 s 12 .......................................................................................................... 373 s 98 .......................................................................................................... 240 s 100 .......................................................................................................... 239 s 102 .......................................................................................................... 239 s 191 .......................................................................................................... 346 s 251 .......................................................................................................... 358 s 106 .......................................................................................................... 237 Indian Act Amendment Act Chapter 2 s9 .............................................................................................................. 7

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English Statutes

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The English Administration of Estates Act, 1925 s 35(2) .......................................................................................................... 541 The Administration of Estates Act ..................................................................... 541 The English Companies Act of 1948 s 210 .......................................................................................................... 365 .......................................................................................................... 363 The Judicature Act 1925 s 162 .......................................................................................................... 358 The Law of Property Act, 1925 s 177 .......................................................................................................... 194 Limitation Act 1963 s 19(1) .......................................................................................................... 552 The Married Women’s Property Act, 1882 s 17 ............................................................................................................ 26 s 1(2) .......................................................................................................... 341 s 18 .......................................................................................................... 341 s 24 .......................................................................................................... 341 Real Estates Charges Act 1854 ......................................................................... 541 Statutes of Frauds 1677 .................................................................................... 150 The Wills Act 1837 s 11 .......................................................................................................... 171 s 20 .......................................................................................................... 187 .......................................................................................................... 190 s 18 .......................................................................................................... 194 Wills Act Amendment Act, 1852 s1 .......................................................................................................... 149

Rules and Orders (Subsidiary Legislation) The Civil Procedure Rules Order V ....................................................................................................... 464 Order VII, r 4(1) .......................................................................................... 305 Order X ...................................................................................................... 464 Order XI ..................................................................................................... 464 Order XV ................................................................................................... 464 Order XVIII\Order XXV ........................................................................... 464 Order XXV ................................................................................................. 464 .................................................................................................... 508;509 Order XXXVI, r 1, 2, 4 ............................................................................... 531 Order XXXVI ............................................................................................ 561 Order XXXVI, r 4 ...................................................................................... 563

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Order XXXVI, r 1 ...................................................................................... 308 .......................................................................................................... 394 .......................................................................................................... 403 .......................................................................................................... 558 Order XXXVI, r 3f ...................................................................................... 397 Order XXXIX ....................................................................................... 408;409 .......................................................................................................... 476 Order XLI, r 4 .............................................................................................. 405 Order XLIV ................................................................................................. 389 .......................................................................................................... 392 .......................................................................................................... 464 .................................................................................................... 499;500 Order XLII, rule 1(2),(3) .............................................................................. 389 .................................................................................................... 395;396 Order XLIV, r 1 ............................................................................................ 384 Order XLV r 1, 2 .......................................................................................... 385 Order XLIX ................................................................................................. 464 Order 23, r 3(1) ............................................................................................ 347 Court of Appeal r 39(a) .......................................................................................................... 390 High Court (Practice and Procedure) Rules ...................................................... 403 The Jurisdiction of Courts and Pending Proceedings Regulations 1963 ............... 25 The Probate and Administration Rules r7 ............................................................................................................ 22 r 13 .......................................................................................................... 611 r 14(1), ........................................................................................................ 612 r 17 .......................................................................................................... 473 r 17(1) .......................................................................................................... 468 r 21(5) .......................................................................................................... 413 r 22(5) .......................................................................................................... 413 r 23(2) .......................................................................................................... 413 r 27 .......................................................................................................... 488 r 26 ............................................................................................................ 23 .......................................................................................................... 472 .......................................................................................................... 489 r 29(3) .......................................................................................................... 417 r 36 .......................................................................................................... 360 .......................................................................................................... 362 r 36(1) .......................................................................................................... 357 r 36(2) .......................................................................................................... 462 .......................................................................................................... 464

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.......................................................................................................... 423 .......................................................................................................... 426 .......................................................................................................... 494 r 40(3) .......................................................................................................... 282 .......................................................................................................... 495 r 40(6) .......................................................................................................... 480 r 40(8) .......................................................................................................... 269 .......................................................................................................... 282 .......................................................................................................... 488 .......................................................................................................... 495 r 41 .......................................................................................................... 468 r 41(3) .......................................................................................................... 403 r 44 .......................................................................................................... 369 .......................................................................................................... 463 .......................................................................................................... 471 .......................................................................................................... 473 .......................................................................................................... 486 r 44(1) .......................................................................................................... 476 r 44(2) .......................................................................................................... 471 .......................................................................................................... 476 r 44(3) .......................................................................................................... 464 r 44(4) .......................................................................................................... 464 r 45 .......................................................................................................... 464 r 45(1) .......................................................................................................... 508 r 49 .......................................................................................................... 399 .......................................................................................................... 407 .......................................................................................................... 410 .......................................................................................................... 594 r 59 .......................................................................................................... 314 r 60 .......................................................................................................... 467 .......................................................................................................... 469 .......................................................................................................... 477 r 63 .......................................................................................................... 389 .......................................................................................................... 392 .......................................................................................................... 398 .......................................................................................................... 408 .......................................................................................................... 421 .......................................................................................................... 463 .................................................................................................... 476;477 .......................................................................................................... 499 .......................................................................................................... 509 .......................................................................................................... 652

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r 63(1) .......................................................................................................... 391 .......................................................................................................... 403 .......................................................................................................... 405 .......................................................................................................... 475 r 64 ............................................................................................................ 30 .......................................................................................................... 144 .......................................................................................................... 670 r 69 .......................................................................................................... 507 r 73 ............................................................................................................ 93 ............................................................................................................ 98 .......................................................................................................... 258 .......................................................................................................... 383 .......................................................................................................... 390 .......................................................................................................... 397 .......................................................................................................... 400 ............................................................................................. 401;402;403 .......................................................................................................... 405 .......................................................................................................... 405 .......................................................................................................... 410 .......................................................................................................... 426 .......................................................................................................... 520 r 96 .......................................................................................................... 361 The Public Trustees Rules 1925 ....................................................................... 590

TABLE

OF TREATIES

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African Charter of Human and peoples’ Rights, (Banjul Charter 1981) Article 18 ........................................................................................................ 18 ...................................................................................................................... 36 Covenant on Economic, Social and Cultural Rights ............................................. 18 ...................................................................................................................... 36 Covenant on Civil and Political Rights .............................................................. 18 ...................................................................................................................... 36 Convention on the Elimination of All Forms of Discrimination against Women, in short, CEDAW Article 1 ................................................................ 18 ...................................................................................................................... 36 Universal Declaration of Human Rights (1948).................................................... 18 .................................................................................................................... 250

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LIST

OF

ABBREVIATIONS

AND

LAW REPORTS

A and E ........................................................................Adolphus and Ellis’s Reports AC Law Reports,...........................Appeal Cases, House of Lords and Privy Council Add ...........................................................................Addam’s Ecclesiastical Reports AgJ ......................................................................... Acting Judge of the High Court Ag JA ...............................................................Acting Judge of the Court of Appeal All ER......................................................................................All England Reports B ................................................................................................. Barber’s Gold Law B and Ald ....................................... Barnewall and Alderson’s Reports, King’s Bench Beav ......................................................................... Beavan’s Reports, Roll’s Court Bli NS ................................................. Bligh’s Reports, House of Lords, New Series Bro CCW ......................................................................Brown’s Chancery Reports CA ....................................................................................................... Civil Appeal CA ................................................................................................. Court of Appeal CACA .........................................................................Court of Appeal Civil Appeal CAEA ......................................................................Court of Appeal for East Africa CLY .................................................................................... Current Law Year Book Ch Law ........................................................................ Reports, Chancery Division Ch App ................................................................. Law Reports, Chancery Appeals Ch D .......................................................................................... Chancery Division Cox S C ..................................................................................... Cox, Equity Cases Cr and J .................................................. Crompton and Jervis’s Reports, Exchequer Curt ...........................................................................Curteis’ Ecclesiastical Reports De G and Sm ..............................................De Gex and Smale’s Reports, Chancery Dea and Sw .............................................Deane and Swabey’s Ecclesiastical Reports Drew ...........................................................................Drewry’s Reports, Chancery Drew and Sm .............................................. Drewry and Smale’s Reports, Chancery EA..............................................................................................East Africa Reports EACA ............................................Law Reports for Court of Appeal for East Africa EALR .............................................................................. East African Law Reports eKLR ........................................................................ electronic Kenya Law Reports Fam ........................................................................... Law Reports, Family Division HCCA .............................................................................. High Court Civil Appeal HCCC ................................................................................. High Court Civil Case HC Misc Appli.............................................. High Court Miscellaneous Application HC Misc CC..................................................High Court Miscellaneous Civil Case HCP and A....................................... High Court Probate and Administration Cause HCSC ....................................................................... High Court Succession Cause HCWC .................................................................. High Court Winding-Up Cause HLC....................................................................... Clark’s Reports, House of Lords Hare ................................................................... Hare’s Reports, Chancery Division

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IR .......................................................................................................Irish Reports Ir .........................................................................................................Irish Reports J ........................................................................................ Judge of the High Court JA ................................................................................Judge of the Court of Appeal JAL ........................................................................................Journal of African Law JJA ..............................................................................Judges of the Court of Appeal Jur NS .............................................................................Jurist Reports, New Series K and J ...........................................................Kay and Johnson’s Reports, Chancery KAR ..................................................................................... Kenya Appeal Reports KB ...................................................................................................... King’s Bench KLR..........................................................................................Kenya Law Reports LJ ..........................................................................................................Law Journal LJ Ch ................................................................................... Law Journal, Chancery LJP ...................................................... Law Journal, Probate, Divorce and Admiralty LQR ....................................................................................Law Quarterly Review LR Eq ............................................................................ Law Reports, Equity Cases LR HL ....................................................................... Law Reports, House of Lords LR P and D........................................................ Law Reports, Probate and Divorce LR P and M .................................................. Law Reports, Probate and Matrimony LR QB........................................................................Law Reports, Queen’s Bench LSGaz R .....................................................................Law Society Gazette Reports LT Law ............................................................................................. Times Reports LT Jo Law................................................................................... Times Newspapers LTOS .......................................................................Law Times Reports, Old Series M and W ..................................................................... Meeson and Welby’s Reports Mac and G ........................................ Macnaghten and Gordon’s Reports, Chancery Moo PC ......................................................................Moore’s Privy Council Cases My and Cr................................................... Mylne and Craigh’s Reports, Chancery NLR .....................................................................................Nigerian Law Reports OS ........................................................................................ Originating Summons P .......................................... Law Reports, Probate, Divorce and Admiralty Division PD ....................................... Law Reports, Probate, Divorce and Admiralty Division P Wms .....................................Peere Williams’ Reports, Chancery and King’s Bench Phil ............................................................................... Phillips’ Reports, Chancery Price............................................................................... Price’s Reports, Exchequer QB ......................................................................................Queen’s Bench Reports R .......................................................................................................... the Reports RTR .......................................................................................Road Traffic Reports Rob Ecc .............................................................. Robertson’s Ecclesiastical Reports Salk:........................................................................ Salkend’s Reports, King’s Bench Sch and Lef....................................Schoales and Lefroy’s Reports, chancery (Ireland) Sol Jo............................................................................................ Solicitors’ Journal

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Sw and Tr .................................. Swabey and Tristam’s Reports, Probate and Divorce TLR ..........................................................................................Times Law Reports Ves............................................................................ Vesey Jun.’s Reports, Chancery WN...............................................................................Law Reports, Weekly Notes WLR ...................................................................................... Weekly Law Reports WR................................................................................................ Weekly Reports Y and CC.........................................Younge and Collyer’s Reports, Chancery Cases ZLR ......................................................................................Zanzibar Law Reports

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TABLE

OF

CASES

A Abbot v Parfitt (1871) LR 6 QB 346 ................................................................ 533 Administrator-General v Abdul Hussein [1911] 4 EALR 26 ............................. 699 Abdulrasool v Muluwa [1915] 6 RALR 31 ....................................................... 695 Allcard v Skinner ((1887) 36 Ch D 145) ........................................................... 575 Allen v Maddock(1858) 11 Moo 427; 14 ER 757 ............................................. 155 ............................................................................................................ 156;157 Amos Kimondo Ngotho v Margaret Wanjiku Kimondo HCSC No. 287 of 1998 ............................................................................. 401 Anastacia Mutheu Benjamin v Lakeli Benjamin and another CACA No 6 of 1979 ................................................................................ 507 Anarali Museraza (as a minor by his next friend) Mohamedtaki A P Champsi v Mohamedali Nazerali Jiwa and others [1966] EA 117 ..................................................................................................... 224 .................................................................................................................. 484 Apeli and another v. Prisca Buluku (Mrs.), CA No. 12 of 1979 ............................ 52 Armstrong v Jackson ((1917) 2 KB 822 ............................................................. 580 Arusei, In re (2003) KLR 76 ............................................................................... 32 Atemo v Imujaro [2003] KLR 435.................................................................... 455 Atter v Atkinson (1869) LR 1 P and D ............................................................. 118 Atter and others v Atkinson and another (1869) LR 1 P and D 665 .................. 111 Attorney General v Whitely (1905) 11 Vesey 241............................................... 214 Attorney General v Boulthee (17942 Ves 380) ................................................... 214 Auli Bibi, 28 Allahabad, 715 .............................................................................. 692

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B Bai Daya v Natha (1885) 9 Bombay, 279; ............................................................ 10 Baker v Dening ((1838) 8 Ad and El 94) ........................................................... 150 Banque Belgo Pour L’Etranger v Hambrouck (1921) KB 321 ............................ 584 Banque Belge v Hambrouck 1921 1 KB 321..................................................... 586 Banks v Goodfellow (1870) LR 5 QB 549 .......................................................... 67 .................................................................................................................... 82 .................................................................................................................... 88 .................................................................................................................. 105 Barnes v Crowe (1 Ves Jun 486)......................................................................... 199 Barry v Butlin (1838) 2 Moo PCC 480, 12 PR 1089, PC 482........................... 112 .................................................................................................................. 129 Basant Kaur, widow of Nagina Singh s/o Hira Singh Mistry v Rattan Singh s/o Nagina Singh Mistry(1952) 25 KLR 24 .............................. 9 Basirico v K Boat Service Ltd and Guirri Nairobi CA 276 of 1998 (CA) .......................................................................................................... 309

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Benjawa Jembe v Priscilla Nyondo[1912] 4 EALR 160 ......................................... 4 ...................................................................................................................... 6 Bindon v Lord Suffolk (1 P Wms 96; 1 Bro Parl Cas 189) .................................. 236 Bothamley v Sherman (1875) LR 20 Eq 304 .................................................... 203 Boraston’s Case (3 Rep 19a, 21b) ...................................................................... 233 Boughton and marston v Knight and others (1873) LR 3 P and D 64 [1861-73] All ER Rep 40 ............................................................................ 70 Bowler v John Mowlem and Company [1954] 3 All ER 556............................. 304 Bowes v Shrewsbury (5 Bro Parl Ca 269) .......................................................... 206 Bromley v Brinton (LR 6 Eq 275) ...................................................................... 59 Brown v Fisher (1890) 63 LT 465 ..................................................................... 129 Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266 ....................................... 546 Burns v Campbell (1952) 1 KB 15) ................................................................... 546 Burns v Campbell (1951) 2 ALL ER 965 .......................................................... 341

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C Cain v Moon (1896) 2 QB 283 .......................................................................... 62 Charan Singh Chadha and another v Mohinder Singh Chadha and others (1961) EA 637 ............................................................................................. 11 Charity Stephens and others v Joseph Stephens and another CA No.18 of 1987 ..................................................................................... 519 Charles Harwood v maria Baker (1840) 3 Moo PC 282, 13 ER 117 PC............................................................................................................... 66 Cheese v Lovejoy (1877) LR 2 PD 251............................................................. 182 Chelang’a v Juma [2002] 1 KLR 339 .................................................................. 40 .................................................................................................................. 451 .................................................................................................................. 691 Chichester Diocesan Fund and Board of Finance (Incorporated) v Simpson and others [1944] 2 All ER 60 ..................................................... 215 Christine Nyagitha Miller v. Alice Miller Thomas and others (In the Estate of Cecil Henry Etherwood Miller, Deceased), Nairobi HCSC No. 1100 of 1991 .............................................................. 628 Chuni Lal Bose v Osmond Beeby (3) (1903), 30 Cal 1044 ................................ 571 Clarke v Scripps (2 Rob Ecc 563) ..................................................................... 184 Clark v Taylor (1853)1 Drew 642 ...................................................................... 214 Cleare v Cleare (1869) LR 1 P and A 655 ........................................................... 95 Clement v Cheesman (27 Ch D 631).................................................................. 59 Coast Bus Services Limited v Samuel Mbuvi Lai CACA No. 8 of 1996 ................................................................................. 349 Cockerell v Cholmeley ((1830) 1 Rus and Myl 418) ......................................... 578 .................................................................................................................. 579 Collins and Tuffley v Elstone (1893) P 1 ............................................................ 120 Commisioners of Income Tax v Pemsel (1891); [1891] All ER AC..................... 212 Commissioner of Income Tax v Menon (1982-1988) 1 KAR ............................ 387

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Cripps v Wolcott (3) (1819), 4 Madd 11; 56 ER 613 ................................... 236;237 Cutto v Gilbert (9 Moo PC) ............................................................................. 180 D Daintree v Butcher and fasulo (1888) 13 P and D 102....................................... 147 Daniell v Daniell (6 Ves 297; 31 ER 1060) ......................................................... 236 Davies v Edward (7 Ex 22)................................................................................ 566 David v Frowd (1833) ....................................................................................... 588 De Beauvoir (1852) .......................................................................................... 221 Den v Vancleve (1819) 5 NJL (2 2 South 589 (2 Southard ................................... 69 Dew v Clark and Clark (3 Add Eccl 79) .............................................................. 71 Dew v Clark (1826) 3 Add 79 ........................................................................... 104 Dierham v Northern (1895) ............................................................................. 157 Dixon v Treasury Solicitor ((1905) .................................................................... 188 Dixon v The Solicitor of the Treasury (1905) P 42 ............................................ 192 Doe D Perkes v Perkes (1820) 3 B and Ald 487; 106 ER 740 ............................ 182 Dowse and others v Ann Elizabeth Gorton and James William (1891) AC 190...................................................................................................... 533 Dowse and others v Gorton and others (1891) AC 190,..................................... 559 Dorin v Dorin (LR 7 HL 568),......................................................................... 229 Drant v Vause (1 Y and C Ch 580) .................................................................... 208 Duffield v Elwes (1823) 1 S and S 239 ................................................................ 58

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E El-Mann’s Case [1969] EA 357). ......................................................................... 37 Elizabeth Kamene Ndolo v George Matata Ndolo CACA No. 128 of 1995 ............................................................................. 139 .................................................................................................................. 604 .................................................................................................................. 622 .................................................................................................................. 641 Elizabeth Ndulu Mathuva and others v Joseph Mbiu Muthiani and another [2008] eKLR ................................................................................ 354 Emery v Emery ................................................................................................ 509 Ernest Kinyanjui Kimani v Muiru Gikanga and another [1965] EA 735 ........................................................................................... 631 Ex parte Blane (1894) 2 QB 237)...................................................................... 586 F Farrow v Austin, 18 Ch Div ............................................................................. Florence Okutu Nandwa and another v John Atemba Kojwa CACA No. 306 of 1998 ............................................................................. .................................................................................................................. Foster v Dawber (6 Ex 839) .............................................................................. Firth v Cartland (34 LJ Ch 301 .........................................................................

240 258 419 566 585

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Francis Njoroge Muigai and others v John Njoroge Muigai HCCA No. 18 of 2001 ................................................................................ 16 Francis Kamau Mbugua and another v James Kinyanjui Mbugua HCCA No. 111 of 2004 (OS) .................................................................... 308 Fielding v Preston (1 De G and J 443) .............................................................. 204 Fox v Fox (1875) LR 19 Eq 286, 290 ................................................................ 231 Fulton v Andrew (1875) LR 7 HL 448 ............................................................. 122 .................................................................................................................. 129 G Gachigi v Kamau [2003] 1 EA 69 ..................................................................... 456 Gardner v Parker (3 Madd 184; 18 RR 213 ........................................................ 58 .................................................................................................................... 63 Garland v Beverley (9 Ch D 213)...................................................................... 227 Gattward v Knee (1902) P 22 ........................................................................... 172 George Itotia Nganga v Mary Wanjiku Kimaru ................................................ 392 George Attenborough and Son v Solomon and another (1913) AC 76 ............... 549 Gibbs v Roy 85 CLJ 280 .................................................................................. 359 Gill v Gill (1909) P 157 .................................................................................... 183 Gitau and two others v Wandai and five others (1989) KLR 231 ....................... 303 Gituanja v Gituanja [1983] KLR 575 ............................................................... 688 Goodtitle D Bailey v Pugh (3 Bro PC 454) ....................................................... 227 Griffith v Hughes ((1892) 3 Ch 105) ................................................................ 567 Guardhouse v Blackburn [1861-73] All ER Rep 680 ........................................ 125 Gubaksh Singh and others v Bank of Credit and Commerce International .............................................................................................. 361 Gulamhussein Mulla Jiranji and another v Ebrahim Julla Jiranji and another ...................................................................................................... 500 Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

H Hadija v Iddi [1974] EA 50 ............................................................................... 359 Hallet’s case 13 Ch D 696 ................................................................................. 582 Haig v Swiney (2)(1823), 1 Sim and St… 487; 57 ER 193................................. 236 Hall v Hall (1868) 1 P and D 481 ..................................................................... 108 Hale v Tokelove (1850) ..................................................................................... 201 Hastilow v Stobie (1865) LR 1 P and D 64 ......................................................... 82 Henfrey v Henfrey (4 Moo PC) ........................................................................ 180 Hill v Crook (LR 6 HL 265) ............................................................................ 229 Hindmarsh v Charlton (1861) 8 HL Cas 160) ................................................... 150 Hilton Steam Laundry [1945] 2 All ER 425 ...................................................... 304 Hilton v Sutton Steam Laundry (1945) KB 65 .................................................. 338 Hortensia Wanjiku Yawe v Public Trustee, CA No. 13 of 1976 ........................... 257 .................................................................................................................. 454

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.................................................................................................................. .................................................................................................................. Holder v Holder and others (1968) 1 All ER 665.............................................. Holt v Markham ((1923) 1 KB 504 ................................................................... Hunter v Attorney General (1899) AC .............................................................. Hussein Mbwana v Amiri Chongwe (2) ............................................................

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501 633 578 581 213 696

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I In Re Estate of Samuel Githagui Kinyanjui [2005] eKLR ................................. 253 I v I [1971] EA 278 .......................................................................................... 341 In Re Bercovitz [1962] All ER (552 at 558) ...................................................... 148 In re Barnett’s Trust (1), (1902) 1 Ch 847 .......................................................... 297 In re Beaumont:Beaumont v Ewbank (1902) 1 Ch 889....................................... 58 In re Beak’s Estate (LR 13 Eq 489) ..................................................................... 59 In re Birchall (40 Ch D).................................................................................... 675 In re Blackwell: Blackwell v Blackwell (1926) 1 Ch 223 .................................... 232 In re Buchton (1907) 2 Ch .............................................................................. 240 In re Calow: Calow v Calow (1928) 1 Ch 710 .................................................. 208 In re Champion (1893) 1 Ch 101) .................................................................... 199 In re Clout and Frewer’s contract (1924) 2 Ch 230............................................ 675 In re Corsellis (1904) 2 Ch 316)........................................................................ 229 In re Dillon (14 Ch D 76)................................................................................... 59 In re Diplock: Diplock v Wintle (and Asssociated Actions) (1948) 1 Ch 465 ........................................................................................ 587 In re Drummond, Ashworth v Drummond (1914); [1914-15] All ER 2 Ch 90 ......................................................................... 212 In re Earl of Radnor’s Trusts 45, Ch D 423) ...................................................... 219 In re Estate of Gitau (deceased) [2002] 2 KLR 430 ........................................... 496 In re Estate of JR Sourthern; Adams v Sourtherden [1925] All ER Rep 398.............................................................................. 190 In re Estate of Karanja[2002] 2 KLR 34 ............................................................ 508 In re Estate of Kariuki [2002] 2 KLR 172 ......................................................... 555 In Re Estate of Kilungu (deceased) [2002] 2 KLR 136...................................... 408 In re Estate of Kittany [2002] 2 KLR 720 ......................................................... 642 In re Estate of Lerionka ole Ntutu (Deceased) [2008] eKLR ............................... 34 In re Estate of Murimi (Deceased) [2002] 2 KLR 158 ....................................... 486 In re Estate of Naftali (deceased) [2002] 2 KLR 684 ............................................ 43 In re Estate of Ngugi (Deceased) [2002] 2 KLR 434 ......................................... 497 In re Estate of Njuguna (Deceased) [2002] 2 KLR 292...................................... 409 In re Faris (1911) 1 LR 469, 472 ....................................................................... 191 In re Fraser (1904) 1 Ch 726),........................................................................... 199 In re Golay’s Will Trusts: Morris v Bridgewater and others (1965) 1 WLR 969 .................................................................................... 211

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In the Goods of Smart (1902) ........................................................................... 157 In re Gordon (6 Ch 531, 534) ........................................................................... 675 In re Hardyman: Teesdale v McClintock (1925) 1 Ch 287 ................................. 199 In re Harrison, Turner v Hellard (1885) 30 ChD 390 .......................................... 81 In re Hawkesley’s Settlement; Black v Tidy (1934) Ch 384 All ER Rep 94 ................................................................... 179 In re Helliwell: Pickles v Helliwell (1918) 2 Ch 580 .......................................... 228 In re Howlett ((1949)2 All ER 490 ................................................................... 580 In re Jodrell (1890)............................................................................................ 229 In re Knight (1944) ........................................................................................... 195 In re Katumo [2003] 2 EA 509 (Deceased) ........................................................ 330 In re Leeming: Turner v Leeming (1912) 1 Ch 828 ........................................... 207 In re Marquordt, deceased, ex-parte Administrator-General [1913-1914] 5 EALR 162 .......................................................................... 537 In re Mead (15 Ch D 651) .................................................................................. 59 In re Moore (1907) 1 IR 315)........................................................................... 200 In re Morgan: Pillgrem v Pillgrem(1881) 18 Ch D 93 ....................................... 564 In re Morris, deceased [1970] 1 All ER 1057..................................................... 123 In re Oatway 1903 2 Ch 356 ............................................................................ 586 In re Pauling’s Settlement Trusts ((1962) 1 WLR 86) ......................................... 576 In re Pauling’s Settlement Trusts:Young husband and others v Coutts and Company [1963] 3 All ER................................................................... 580 In re Pearce (1909) 1 Ch 819 ............................................................................ 554 In re Phelan, Deceased (1972) Fam 33............................................................... 123 In re Pyle (1895) 1 Ch 724 ............................................................................... 208 In re Richards (1921) 1 Ch 513) ......................................................................... 62 In re Rooke: Jeans v Gatehouse (1933) 1 Ch 970 .............................................. 554 In re Rose: Midland Bank Executor and Trustee Limited v Rose [1948] All ER 971 [1949] 1 Ch 78 ............................................................. 205 In re Rowland Decd [1962] 2 All ER 1 Ch 1.................................................... 218 In re Smith: Bull v Smith (1933) 1 Ch 847 ........................................................ 227 In re Somerset: Somerset v Earl Poulett 1894) 1 Ch 231 ................................... 565 In re Sowerby’s Trust ......................................................................................... 210 In re Stable; Deceased: Dalrymple v Campbell [1919] All ER Rep 299 page 7 ................................................................................................. 171 In re Stenning 1895 2 Ch D 433) ..................................................................... 586 In re the Estate of Lameck Omwoyo (Deceased) [2008] eKLR.......................... 433 In re Wingham, deceased: Andrews v Wingham [1948] 2 All ER 908, [1949] P 187, ............................................................ 172 In re Wasserberg (1915) 1 Ch 195;[1914-1915] All ER Rep ................................ 60 In the Estate of Bean (1944) 2 All ER 348, P 83................................................ 153 In the Estate of Bohrmann, Caesar and Watmough v Bohrmann [1938] 1 All ER 271 .................................................................................. 104

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In the Estate of Cook (deceased): Murison v Cook and another [1960] All ER 689 ..................................................................................... 150 In the Estate of Ezekiel Mulanda Masai HCP and A No. 4 of 1992.................... 462 In the Estate of Faiz Khan, deceased [1929-30] 12KLR 111 .............................. 693 In the Estate of Fanny Deborah Meyer (1908) P 353 ......................................... 121 In the Estate of G W L Cane, deceased and In Re, the Trusts of the said G W L Cane [1919-1921] 8 EALR 26........................................... 538 In the Estate of Langston, deceased 1 All ER 928, P 100 .................................... 195 In the Estate of Wallace, Decd – Solicitor of the Duchy of Cornwall v Batten and another (1952) 2 TLR 925..................................................... 127 In the Goods of Adams (1872) LR 2 P and D 367............................................. 154 .................................................................................................................. 319 In the Goods of Baylis (Law Rep 1 P and M 21) ............................................... 320 In the Goods of Chalcraft, deceased; Chalcraft v Giles and another [1948] 1 All ER 700 .................................................................................. 151 In the Goods of Collett (Deane, 274) ................................................................ 320 In the Goods of Durance (1872) LR 2 P and D 406 ......................................... 186 In the Goods of Francis Morton (1864) 3 Sw and Tr 422 ER 1338 ..................... 47 In the Goods of Gill LR 3 P and D 113 ............................................................ 414 In the Goods of Heathcote (1881) 6 PD 30 ...................................................... 156 In the Goods of Henrietta G Morton (1887) 12 P and D 14 ............................. 184 In the Goods of Horsford (1874) LR 3 P and D 211 ......................................... 197 In the Goods of Hunt (1875) LR 3 P and D 250 .............................................. 119 In the Goods of John Woodward (1872) LR 2 P and D 406 .............................. 184 In the Goods of Mann, deceased 2 All ER 193 P............................................... 152 In the Goods of Mary Sunderland (1866) LR 1 P and M 192 ........................... 157 In the Goods of Mayd (1881) 6 PD 17................................................................ 56 In the Goods of Montgomery (5 numbers Ca 99) ............................................. 319 In the Goods of Porter (Law Rep 2 P and D 22) ................................................. 56 In the Goods of Redding (otherwise Higgins) (1850)........................................ 150 In the Goods of Russell and In the Goods of Laird (1892) P 380....................... 320 In the Goods of Sperling (1863) ........................................................................ 150 In the goods of Spratt (1897) .............................................................................. 55 In the Goods of Steele (1868) 1 P and D 575 .................................................... 201 In the Goods of Tamplin (1894) ........................................................................ 371 In the matter of an application by Ebrahimji Gulamhusein Anjarwala as an Administrator of the estate of Hussenabai Musajee, deceased (1946) 22(1) EACA 3 ............................................................................... 526 In the Matter of Estate of Benson Ndirangu Mathenge (Deceased) HCSC No. 231 of 1998 ............................................................................. 174 In the Matter of Estate of Gerald Kuria Thiara HCSC No. 127 of 1995 ............................................................................. 506

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In the Matter of Estate of Jefferson Gathecha, Deceased HCSC No. 75 of 1995 ............................................................................... .................................................................................................................. In the Matter of Habakuk Ochieng Adede (Deceased) HCSC No. 712 of 2000 ............................................................................. In the Matter of Joseph Kimemia Gichuhi HCSC No. 1072 of 2002 ........................................................................... In the Matter of Peter Gicheru Kagotho (Deceased) HCSC No. 376 of 1983 ............................................................................. In the Matter of Philly Nyarangi Otundo (Deceased) HCSC No. 2078 of 1997 ........................................................................... In the Matter of the Estate of Benjamin Ngumba Gachanja (Deceased) HCSC No 692 of 1994 ............................................................................. In the Matter of the Estate of Abdehusein Ebrahimji,alias Abdehusein Nurbhai Adamji (Deceased) HCSC No.91 of 2001 .................................... In the Matter of the Estate of Aggrey Makanga Wamira HCSC No. 89 of 1996 (In re Estate of wamira (2002) KLR 12) ................. In the Matter of the Estate of Amos Kipsrono Sirma – Deceased HCSC No. 231 of 1994 ............................................................................. In the Matter of the Estate of Angeline Anyango Obanda (Deceased) HCSC No. 2747 of 1997 ........................................................................... In the Matter of the Estate of Anthony Gichigi Wairire (Deceased) HCP and AC No. 32 of 1983 ..................................................................... In the Matter of the Estate of Ashford Njuguna Nduni (Deceased) HCSC No. 1589 of 1994 ........................................................................... In the Matter of the Estate of Basen Chepkwony (Deceased) HCSC No. 842 of 1991 ............................................................................. In the Matter of the Estate of Beatrice Amalemba HCSC No. 2610 of 2000 ........................................................................... In the Matter of the Estate of Benjamin Gicheha (Decesaed) HCSC No. 692 of 1994 ............................................................................. In the Matter of the Estate of Benson Joseph Omondi Awinyo (Deceased) HCSC No. 1183 of 2002 ......................................................... In the Matter of the Estate of Benson Kagunda Ngururi (Deceased) HCSC No. 341 of 1993 ............................................................................. In the Matter of the Estate of Carey Kihagi Muriuki (Deceased) HCSC No. 765 of 1994 ............................................................................. In the Matter of the Estate of Charles Muigai Ndung’u (Deceased) of Karinde Kiambu District HCP and A 2398 of 2002 ............................... In the Matter of the Estate of Charles Odhiambo Odiawo (Deceased) HCSC No. 1525 of 1999 ........................................................................... In the Matter of the Estate of Chege Njuguna (Deceased) HCSC No. 832 of 1993 ............................................................................. In the Matter of the Estate of Clement Albert Etyang (Deceased) HCSC No. number 1099 of 2002 ..............................................................

106 483 392 293 397 102 635 483 324 169 426 594 628 282 326 398 637 244 627 453 531 467 671

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In the Matter of the Estate of David Kamethu alias David Maina Kinyanjui (Deceased) HCP and AC No. 1301 of 2002................................ In the Matter of the Estate of David Murage Muchina (Deceased) HCSC No. 2077 of 2002 ........................................................................... In the Matter of the Estate of Dr Arvinder Singh Dhingra (Deceased) HCSC No. 2572 of 1996 ........................................................................... .................................................................................................................. In the Matter of the Estate of Dr John Muia Kalii (Deceased) HCSC No. 81 of 1995 ............................................................................... In the Matter of the Estate of Elijah Mbondo Ntheketha (Deceased) HCSC No. 193 of 1997 ............................................................................. In the Matter of the Estate of Elizabeth Wamaitha Ngaruiya (Deceased) HCC No. 2499 of 2001 ............................................................................. In the Matter of the Estate of Ellah Warue Nthawa (Deceased) HCSC No. 971 of 2001 ............................................................................. In the Matter of the Estate of Erastus Gakobo Chege (Deceased) HCSC No. 711 of 1998 ............................................................................. In the Matter of the Estate of Erastus Njoroge Gitau (Deceased) HCSC No. 1930 of 1997 ........................................................................... In the Matter of the Estate of Eunice Wanjeri Kibia (Deceased) HCSC No. 926 of 1997 ............................................................................. In the Matter of the Estate of Fatuma binti Mwanzi Umri (Deceased) HCP and A No. 21 of 1994........................................................................ In the Matter of the Estate of Gachunga Gachamba (Deceased) HCSC No. 642 of 2000 ............................................................................. In the Matter of the Estate of Gathererie Muturi (Deceased) HCSC No. 2170 of 1999 ........................................................................... In the Matter of the Estate of Gathima Chege (Deceased) HCSC No. 1955 of 1996 ........................................................................... In the Matter of the Estate of George Karegwa Gitau (Deceased) HCSC No. 959 of 2001 ............................................................................. In the matter of the Estate of George Percy Smithson (Deceased) (1942) 22 EACA 13 ................................................................................... In the Matter of the Estate of Gerald Felix Nyawira Otiso (Deceased) HCCC No. 2715 of 1996 .......................................................................... In the Matter of the Estate of Gichia Kabiti (Deceased) HCSC No. 2559 of 2002 ........................................................................... In the Matter of the Estate of Grace Nguhi Michobo (Deceased) HCSC No. 1978 of 2000 ........................................................................... In the Matter of the Estate of Hannah Njoroge Njuki (Deceased) HCSC No.453 of 1997 .............................................................................. In the Matter of the Estate of Hannah Nyangahu Mwenja (Deceased) HCP and AC No. 901 of 1996 ................................................................... In the Matter of the Estate of Hemed Abdalla Kaniki (Deceased) HCSC No. 1831 of 1996 .......................................................................... ..................................................................................................................

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487 519 258 474 305 248 522 261 292 399 478 322 428 684 272 260 212 373 420 275 367 499 473 520

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In the Matter of the Estate of Henry Ng’ang’a (Deceased) HCSC No. 1330 of 1999 ........................................................................... 378 In the Matter of the Estate of Henry Ng’ang’a Wangendo(Deceased) HCSC No. 528 of 2000 ............................................................................. 289 In the Matter of the Estate of Hezron Bernard Wamunga (Deceased) HCSC No. 1813 of 199 ............................................................................. 391 In the Matter of the Estate of Humphrey Edward Githuru Kamunyu HCSC No. 2322 of 1995 ............................................................................. 27 .................................................................................................................. 136 .................................................................................................................. 483 .................................................................................................................. 656 In the Matter of the Estate of Huseinbhai Karimbhai Anjarwalla HCP and A No. 118 of 1989...................................................................... 597 In the Matter of the Estate of Isaac Kireru Njuguna (Deceased) HCSC No. 1064 of 1994 ........................................................................... 469 In the Matter of the Estate of Ivo Murray Murton (Deceased), In the Matter of the will of the said Deceased, and the In the matter of the Trustee Ordinance (1938) 18(1) KLR 65 ................................................... 230 In the Matter of the Estate of James Gitumbi Kagwiri (Deceased) HCSC No. 782 of 1999 ............................................................................. 390 In the Matter of the Estate of James Kiarie Muiruri (Deceased) HCSC No. 2413 of 2003 ........................................................................... 490 In the Matter of the Estate of James Mberi Muigai Kenyatta HCSC No. 2269 of 1998 .......................................................................... 446 In the Matter of the Estate of James Ngengi Muigai (Deceased) HCSC No. 523 of 1996 .............................................................................. 93 In the Matter of the Estate of John G. Kinyanjui (Deceased) HCP and AC No. 317 of 2002 ................................................................... 442 .................................................................................................................. 645 In the Matter of the Estate of John Kamau Gichuhi (Deceased) HCSC No. 833 of 2003 ............................................................................. 498 In the Matter of the Estate of John Ngugi Kimani (Deceased) HCSC No. 1830 of 1999 ........................................................................... 595 In the Matter of the Estate of Jonathan Mutua Misi (Deceased) HCP and A No. 95 of 1995........................................................................ 268 In the Matter of the Estate of Joram Waweru Mogondu (Deceased) HCSC No. 2721 of 2002 ........................................................................... 410 In the Matter of the Estate of Joseph Muchiri Komu – Deceased HCSC No. 441 of 1998 ............................................................................. 287 In the Matter of the Estate of Joseph Muchoki Muriuki (Deceased) HCSC No.396 of 1999 .............................................................................. 427 In the Matter of the Estate of Joseph Mungai Njoroge (Deceased) HCSC No. 250 of 1999 ............................................................................. 449 In the Matter of the Estate of Joseph Mwinga Mwaganu (Deceased) HCSC No.1814 of 1996 ............................................................................ 405

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In the Matter of the Estate of Justus Wangai Muthiru (Deceased) HCSC No.1949 of 2001 ............................................................................ 431 In the Matter of the Estate of Kahiro Kabunyi (Deceased) HCSC No. 467 of 1986 ............................................................................. 524 In the Matter of the Estate of Kahuri Kimani – (Deceased) HCSC No.358 of 1996 .............................................................................. 424 In the Matter of the Estate of Kamau Mwangi (Deceased) HCSC No. 1579 of 1994 ........................................................................... 269 In the Matter of the Estate of Karanja Gikonyo Mwaniki (Deceased) HCM 245 of 1998 ..................................................................................... 380 In the Matter of the Estate of Kihagi Wamai (Deceased) HCSC No. 266 of 1995 ............................................................................ 423 In the Matter of the Estate of Kiiru Muhia ‘A’ (Deceased) HCCS No. 2487 of 1996 ............................................................................. 21 In the Matter of the Estate of Kinyuru Karanja (Deceased) HCCS No. 2361 of 2004 ........................................................................... 262 In the Matter of the Estate of Kuria Wairagu (Deceased) HCSC No. 905 of 2002 ............................................................................. 381 In the Matter of the Estate of Laban King’ori Macharia (Deceased) HCSC No. HCP and AC No. 16 of 1988................................................... 494 In the Matter of the Estate of Loice Njeri Ngige HCP and A No. 113 of 1994...................................................................... 256 In the Matter of the Estate of Lydia Karuru Ahmed (Deceased) HCP and A No. 122 of 2001...................................................................... 485 In the Matter of the Estate of Macharia Ngugi Gaturu (Deceased) HCSC No. 708 of 2000 ............................................................................. 429 In the Matter of the Estate of Makali NzyokaHCP and AC 60 of 1997 ...................................................................................................... 476 In the Matter of the Estate of Manibhai Kishabhai Patel alias Manibhai Kisabhai Patel (Deceased) HCSC No. 2340 of 1996 ................................... 138 .................................................................................................................. 483 In the Matter of the Estate of Mariko Marumbi Kiuru (Deceased) HCSC No. 2011 of 1997 ........................................................................... 274 .................................................................................................................. 388 In the Matter of the Estate of Mary Gachuru Kabogo (Deceased) HCSC No. 2830 of 2001 ........................................................................... 394 In the Matter of the Estate of Mary Wanjiru Thairu (Deceased) HCSC No. 1403 of 2002 ........................................................................... 278 In the Matter of the Estate of Mathu Ngwaro alias Nikola (Deceased) HCSC No. 45 of 1994 ............................................................................... 398 In the Matter of the Estate of Mohamed Mussa (Deceased) HCSC No. 9of 1997 .................................................................................. 475 In the Matter of the Estate of Mohamed Saleh Said Sherman also known as Mohamed Swaleh Sherman (Deceased) HCSC No. 145 of 1998 ............ 376 .................................................................................................................. 389

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In the Matter of the Estate of Muniu Karugo (Deceased) HCSC No. 2668 of 1997 ........................................................................... 435 In the Matter of the Estate of Muniu Kamau (Deceased) HCSC No. 7 of 1998 ................................................................................. 547 In the Matter of the Estate of Murathe Mwaria (Deceased) HCCS No. 825 of 2003 ............................................................................. 421 In the Matter of the Estate of Muriranja Mboro Njiri HCSC No. 890 of 2003 ............................................................................. 489 In the Matter of the Estate of Musau Ngau (Deceased) [2008] eKLR ............................................................................................. 254 In the Matter of the Estate of Mutambu Ndekei (Deceased) HCSC No. 2688 of 2002 ........................................................................... 488 In the Matter of the Estate of Mutio Ikonyo (Deceased) HCP and A 203 of 1996 ............................................................................ 270 In the Matter of the Estate of Mwangi Giture(Deceased) HCSC No. 1033 of 1996 ........................................................................... 291 In the Matter of the Estate of Mwangi Mugwe alias Elieza Ngware (Deceased) and In the Matter of the Estate of Mary Wairimu Ngware (Deceased) HCSC No. 2018 of 2001 ......................................................... 368 In the Matter of the Estate of Mwaura Gathari (Deceased) HCSC No.1678 of 1999 ............................................................................ 251 In the Matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias Mbura (deceased) HCSC No. 935 of 2003 ................................ 22 In the Matter of the Estate of Naomi Wanjiku Mwangi (Deceased) HCSC No. 1781 of 2001 ........................................................................... 142 ............................................................................................................ 483;484 In the Matter of the Estate of Ndegwa Kariuki (Deceased) HCSC No. 2799 of 1999 ........................................................................... 506 In the Matter of the Estate of Ndungu Kariuki ................................................. 438 In the Matter of the Estate of Nelson Kimotho Mbiti (Deceased) HCSC No. 169 of 2000 ............................................................................. 561 In the Matter of the Estate of Ng’ang’a Kamau (Deceased) HCP and AC No. 875 of 1993 ................................................................... 404 In the Matter of the Estate of Ngaii Gatumbi alias James Ngaii Gatumbi (Deceased) HCSC No. 783 of 1993 ........................................................... 466 In the Matter of the Estate of Njau Ndungi (Deceased) HCP and A No. 863 of 1991 ..................................................................... 461 In the Matter of the Estate of Patrick Mbugua Njoroge (Deceased) HCP and A No. 659 of 1989...................................................................... 460 In the Matter of the Estate of Patrick Mungai Kugega (Deceased) HCSC No. 1374 of 2000 ........................................................................... 259 In the Matter of the Estate of Peris Wanjiku Nduati (Deceased) HCSC No. 2349 of 2001 ........................................................................... 369 In the Matter of the Estate of Peter Njenga Kinyara (Deceased) HCSC No. 1610 of 2000 .......................................................................... 652

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In the Matter of the Estate of Ravinder Singh Vohra (Deceased) HCSC No. 1688 of 2006 ........................................................................... 328 In the Matter of the Estate of Reuben Nzioka Mutua (Deceased) HCP and A No. 843 of 1986...................................................................... 616 .................................................................................................................. 524 .................................................................................................................. 637 .................................................................................................................. 643 In the Matter of the Estate of Robert Napunyi Wangila HCSC No. 2203 of 1999 ........................................................................... 482 In the Matter of the Estate of Ruth Wamucii (Deceased) HCP and A No. 1012 of 1992 .................................................................... 463 In the Matter of the Estate of Sadhu Singh Hunjan (Deceased) HCSC No. 107 of 1994 ............................................................................ 621 In the Matter of the Estate of Samuel Muchiru Githuka (Deceased) HCSC No. 1903 of 1994 ........................................................................... 631 In the Matter of the Estate of Sila Kibiwott Roono HCP and A No. 130 of 2000 ........................................................................................................ 31 In the Matter of the Estate of Stephen Kemei Asis HCSC No. 32 of 1997 ............................................................................... 406 In the Matter of the Estate of Stephen Mwangi Mbugua (Deceased) HCCA No. 1 of 2003) ............................................................................... 413 In the Matter of the Estate of Stephen Ng’ang’a Gathiru (Deceased) HCSC No. 500 of 1992 ............................................................................. 620 In the Matter of the Estate of Stephen Wanyoike Muhia (Deceased) HCCA No. 6 of 2002 ................................................................................ 263 In the Matter of the Estate of Syed Mohammed Arshad Shah Syed Hakamsh (Deceased) HCSC No. 518 of 1997 ............................................ 649 In the Matter of the Estate of Thareki Wangunyu also known as Thareka Wangunyo HCSC No. 1996 of 1999 ......................................... 481 In the Matter of the Estate of the late Chepsiror Metit P and AC No. 7 of 1987............................................................................. 423 In the Matter of the Estate of the late James Shiraku Inyundo (Deceased) HCP and A No. 920 of 1986...................................................................... 517 In the Matter of the Estate of the Late Wanjihia Njuguna (Deceased) HCSC No. 533 of 2002 ............................................................................. 277 In the Matter of the Estate of Wairia Muhoro (Deceased) HCSC No 3 of 1999 ................................................................................. 683 In the Matter of the Estate of Waruru Kairu HCSC No. 2525 1997................... 500 In the Matter of the Estate of Wamuhu Murimi (Deceased) HCSC No. 460 of 2002 ............................................................................. 289 In the Matter of the Estate of Wilson Wamagata (Deceased) HCSC No. 261 of 1998 ............................................................................. 479 In the Matter of the Estate of Yusuf Mohamed (Deceased) HCP and A No. 434 of 1995...................................................................... 471 In the matter of the estate WJ Bellasis, deceased [1919-21] 8 EALR 142 ................................................................................................. 234

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In the Matter of Wilson Nzuki Nyolo (Deceased) HCP and A No 152 of 2000 ...................................................................... Irene Njeri Macharia vs Margaret Wairimu Njomo and another CA No. 139 of 1994) ................................................................................. .................................................................................................................. ..................................................................................................................

306 624 631 637

J James Apeli and another v Prisca Buluku (Mrs) CACA No. 12 of 1979 ........................................................................................................ 48 Jenour v Jenour (10 Ves 562; 52 ER 963)........................................................... 236 John Gitata Mwangi and others v Jonathan Njuguna Mwangi and others CACA No. 213 of 1997 ............................................................................... 28 .................................................................................................................. 658 John Kasyoki Kieti v Tabitha Nzivulu Kieti and another HCCA No. 95 of 2001 .............................................................................. 307 John Kinuthia Githinji v Githua Kiarie and others (unreported) CA No. 99 of 1988 ...................................................................................... 36 .................................................................................................................... 81 .................................................................................................................. 100 .................................................................................................................. 107 .................................................................................................................. 483 John Ndung’u Mubea v Milka Nyambura Mubea CACA No. 76 of 1990 ...................................................................................................... 265 Jones v Selby(1710) Prec Ch 300; 24 ER 143)..................................................... 61 Joyce Atemo v Mary Ipali Imujaro (CA No. 274 of 2001).................................. 631

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K Kaboi v Kaboi and others [2003] 2 EA 472 ....................................................... 395 Kamete Ene Ateti Marine v Mosupai ole Ateti HCCA No. 224 of 1995 .............................................................................. 33 Kamrudin Mohamed and another v Hilda Mary Coelho and others [1965] EA 336 ......................................................................... 540 Kangwana and Co. Advocates v Solomon I Kisili CACA No. 41 of 1998 ...................................................................................................... 407 Kanyi v Muthiora [1984] KLR 712................................................................... 680 Karanja and another v Karanja Nyanjugu and another v Karanja [2002] 2 KLR 22 ....................................................................................... 130 Karanja Kariuki v Kariuki [1983] eKLR .......................................................... 679 Kenya Bus Services Ltd v Kawira [2003] 2 EA 519............................................ 353 Keshavlal Bhoja v Tejalal Bhoja [1967] EA 217 .................................................. 372 Kidede v Amin HCCA No. 83 of 1978 ............................................................. 346 Kimani v Gikanga [1965] EA 735 ....................................................................... 24 .................................................................................................................... 25 Kimari and another v Kimari [1988] KLR 587 ................................................. 416

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Kivuitu v Kivuitu (1991) 2 KAR ........................................................................ 26 Kizito Machani v Maryrose Vernoor CA No. 61 of 1984 ................................... 637 Kothari v Qureshi and another [1967] EA 564 .................................................. 333 Kothari v Qureshi [1967] EA 564 ..................................................................... 335 Kuria and another v Kuria [2004] eKLR........................................................... 294 L Latif Suleman Mohamed v KJ Pandya and others [1963] EA 416 .........................235 Lalitaben Kantilal Shah v Southern Credit Banking Corporation Limited HCCA No. 543 of 2005 ............................................................................ 336 Lawes v Bennett (1785) Cox 167; 29 ER 1111 .................................................. 206 Lawson v Lawson (1718) 1 P Wms 441; 24 ER 463),........................................... 61 Lemage v Goodman and others (1865) LR 1 P and D 57 .................................. 180 Leonino v Leonino ........................................................................................... 541 Lindsay v Lindsay (1872) LR 2 P and D, 27 LT 322............................................. 57 Lord Advocate v M’Court (1893) 20 R (Ct of Sess.) 488) ................................... 61 Longwe v International Hotels (1993) (4 LRC 221)............................................ 18

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M Maamun bin Rashid bin Salim El-Rumhy v Haider Mohamed bin Rashid El-Basamy[1963] EA 438 ............................................................... 366 Macharia v Wanjohi and another [2004] 1 EA 111 ............................................ 385 Maina Mwangi v Gachihi Njihia CACA No. 89 of 1998 ................................... 682 Makhangu v Kibwana[1995-1998] EA 175 ....................................................... 387 Manser bin Simba v H Fitzgerald Reece as Trustee for Mwana Aisha binti Juma (1918-22) 2 ZLR 30 ................................................................. 700 Mary Rono v Jane Rono and another civil appeal number 66 of 2000 (unreported) .............................................................................................. 250 Mawji Narsi v Premji Purshottam(1918-22) 2 ZLR 47 ..................................... 302 Margaret Makhangu Kibwana v David John Kibwana) Civil Appeal No 84 0f 1995 ....................................................................... 391 Mary Wambui Kabungua, Legal Representative of Kabugu v Kenya Bus Service Limited CA No. 195 of 1995 .......................................... 29 .................................................................................................................. 661 Martin Odera Okumu v Edwin Otieno Ombajo HCCS No. 947 of 1996 ...................................................................................................... 350 Mary Mbeke Ngovu and another v Benard Mutinda Mutisya HCSC No. 352 of 1998 ............................................................................. 351 Mary Rono v Jane Rono and William Rono CA No. 66 of 2002........................ 36 Mary Njoki v John Kinyanju Mutheru CA No. 71 of 1984 ............................... 443 Matheka and another v Matheka Nairobi [2005] 1 EA 251 ............................... 491 Matata v Matata (1981) TLR 23, ......................................................................... 92 Mbatha Ngumbi v Mbithi Muloli and others CACA No. 207 of 1995 ...................................................................................................... 561

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Mbugua v Mbugua CA No 23 of 1982 ............................................................. 168 Meyappa Chetty v Supramarian Chatty (1916) 1 AC 603 .................................. 335 Mtoro bin Mwamba v A-G of Tanganyika (1953) 20 EACA 108 ....................... 695 Miller v Miller (1735) 3 P Wms 356 ................................................................... 61 Mills v Milward (15 PD 20) .............................................................................. 183 Morgan v Rowlands (Law Rep 7 QB 493),....................................................... 566 Mohan v Broughton (1900) .............................................................................. 591 Morrel and others v Morrel and others, (1882) 1P D 68 ...................................... 84 Morrell v Morrell 7 PD 68) .............................................................................. 120 Morris Mutuli and another v Alice Mutuli Kola and other CACA No. 236 of 2000 ............................................................................. 402 Morjaria v Abdalla [1984] KLR 490.................................................................. 360 Mukindia Kimuru and another v Margaret Kanario Nyeri CACA No. 19 of 1999 ................................................................................. 39 Musa v Musa [2002] 1 EA 182.......................................................................... 417 Muigai v Muigai and another [1995-1998] EA 206 ........................................... 444 Mwathi v Mwathi and another [1995-98] 1 EA 229, .......................................... 35 .................................................................................................................. 117 .................................................................................................................. 247 Mwathi v Mwathi [1995 – 98] 1 EA 229 .......................................................... 483 Mwagiru v Mumbi [1967] EA 639, 642 ............................................................ 503 Mumo v Makau [2002] 1 EA 170 ..................................................................... 686

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N National Bank of India Ltd v The Administrator General of Zanzibar [1924-26] 10 KLR..................................................................................... 371 National Trustees Company of Australasia Ltd v General Finance Company of Australasia Ltd (1905) AC 373; 21 TLR 522 PC) .................... 575 Narbadabai v Mahadeo (1881) 5 Bombay, 99....................................................... 10 Narali Museraza (a minor by his next friend) Mohamedtaki A P ........................ 224 .................................................................................................................. 484 Newton v Newton (1861) ................................................................................ 201 Ndolo v Ndolo Civil Appeal No. 128 of 1995) (unreported) ............................. 668 Ngeso arap Leseret v Ibrahim [1929-30] 12 KLR 50 ......................................... 687 Ngetich, In re estate of (2003) KLR 84 ............................................................. 610 Nkinga Hospital v Theodeolina Alphaxed CACA No. 49 of 1992........................ 89 Nyanjugu and another v Karanja [2002] 2 KLR 22 ........................................... 130 Nutter v Holland (1894) ................................................................................... 559 O Ochola v Langat HCCA No. 3081 of 1981 ....................................................... 346 Okoyana v Musi and another [1987] KLR 104 ................................................ 546 Official Receiver v Sukhdev[1970] EA 243 ....................................................... 558

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Ombogo v Standard Chartered Bank of Kenya Ltd [2000] 2 EA 481 ................. Orr v Kaines (1750) .......................................................................................... Overseas Finance Corporation Limited v The Administrator General of Tanganyika Territory (in his capacity as Administrator of the estate of Winifredi Judith Napier Clark) and Oliver Sydenham Chapman (Administrator Ad Litem of the estate of the late Robert Napier Clark) (1942) 9 EACA 1 ....................................................................................... Otieno v Ougo and another (number 4) [1986 – 9189] 1 EA 68 .......................

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311 589

582 340

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P Panayotis Nicolaus Catravas v Khanubhai Mohamed Ali Harji Bhanji [1957] EA 234 ........................................................................................... 571 Parfitt v Lawless (1872) LR 2 P and D 462 ...................................................... 110 Parker and another v Felgate and Tilly (1883) LR 8 P and D 171 ........................ 85 .................................................................................................................. 126 Patna case (2) .................................................................................................... 572 Paul Mburu Njoroge v Joseph Waweru Gitumbi[2008] eKLR ........................... 382 Pauline Ndete Kinyota Maingi v Rael Kinyota Maingi CACA No.66 of 1984 ........................................................................................................ 50 Pearks v Moseley (1880), 5 Appeal Cases ........................................................... 240 Pennell v Deffell 23 LJ Ch 115 ......................................................................... 585 Perera v Perera ([1901] AC 354. ........................................................................ 128 Perrin v Morgan, [1943] 1 All ER 187 .............................................................. 218 Peters v Sunday Post Limited [1958] EA 424..................................................... 607 Peter Maundu Mua v Leonard Mutunga and another HCCA No. 305 of 1995 ...................................................................................................... 347 Philips v Philips ................................................................................................ 210 Phipps v Ackers [1558-1774] All ER Rep 381, HL ........................................... 234 Pilot v Gainfort(1931) P 103............................................................................. 193 Pinnegan v Cementation Ltd (1953) 1 QB 688) ................................................ 304 Pitchey’s case (1) ............................................................................................... 571 Plenty v West (1 Rob Ecc 204),......................................................................... 180 Powell v Powell (1866) LR 1 P and D 209, [1861-73] All ER Rep 362); .................................................................................................. 188 R R v German (1947) 4 DLR 68, .......................................................................... 89 Rani Bhagwan Kaur v Jogendra Chandra Bose (1) (1903), 30 IA 249 .................. 11 Rankin v Weguelin (27 Beav 309) ....................................................................... 59 Rashida Begum v Administrator General and another (1951) 18 EACA 102 ................................................................................................. 222 Rebecca Nyakeru Nyongo and others v Simon Kamau Gitau CACA No. 245 of 1996 ............................................................................ 563 Re Asha Ilamulira HCP and A 128 of 1966 (unreported) .................................. 698

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Re Beadle (deceased): Mayes and another v Beadle (1974) 1 All ER 493...................................................................................................... 148 Re Bean ((1944) 2 All ER 348, [1944] .............................................................. 149 Re Bercovitz ((1962) 1 All ER.......................................................................... 148 Re Bird Deceased [1970] EA 289 ..................................................................... 195 Re Craven’s Estate [1937] 3 All ER 33; (1937) Ch 423; 106 LJ Ch 308; 157 LT 283)................................................................................................. 60 Re Corby: Midland Bank, etc v Attorney General and Johnson [1941] 2 All ER 160 ............................................................................................. 213 Re Douglas’s Will Trusts (1), [1959] 2 All ER 620.............................................. 236 Re Hornby ((1946) 2 All ER 150 ..................................................................... 148 Re Jones (deceased): Evans v Harries and others [1976] 1 All ER 593...................................................................................................... 187 Re Lillington (deceased) Pembery v Pembery and another [1952] 2 All ER 184 ............................................................................................... 60 Re Maangi ........................................................................................................... 7 Re Mann ((1942) 2 All ER 193,........................................................................ 149 Re Mariette: Mariette v Governing Body of Aldenham School (1915) 2 Ch 284 [1914-15] All ER ....................................................................... 213 Re Matheson ...................................................................................................... 49 Re Mellody, Broadwood v Haden (1918) Ch 228 ............................................. 212 Re Raphael: Public Trustee v Raphael .............................................................. 217 Re Roberts (1934) All ER Rep 62, 103 LJP 61,................................................ 148 Re Rufus Munyua (Dec’d) Public Trustee v Wambui (1977) KLR 137 ................................................................................................... 160 Re Stabman (1952) ........................................................................................... 149 Re Southerden ((1925) All ER Rep 398 ........................................................... 188 Re Stott (deceased) [1980] 1 All ER 259) ........................................................... 73 .................................................................................................................. 116 Re the estate of Karichwa Pola P and AC No. 25 of 1982 ................................. 339 Re the estate of Thomas Kazungu Kavivya Kazau P and AC No. 100404 of 1982 ................................................................................... 339 Re the estate of the late Suleiman Kusundwa 1965 EA 247 ............................... 694 Re Kahawa Sukari Ltd [2004] 2 EA 93 ............................................................. 363 Re Jerym Street Turkish Baths Ltd [1970] 3 All ER 57 ...................................... 363 Re Inns, Inns v Wallace and others [1947] 2 All ER 656 .................................... 668 Re Salum [1973] EA 522 ................................................................................. 697 Re Meyer Douglas Pty Ltd (1965) VR 638, ...................................................... 365 Roman C Hintz v Mwang’ombe Mwakima (1982 -1988) 1 KAR 482................................................................................................... 337 Re Mauchauffee [1969] EA 424 ....................................................................... 412 Re Stanford: University of Cambridge v Attorney General (1924) 1 Ch 73 ..................................................................................................... 214

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Re Shepherd – George v Thyer (1904) I ch. 456. .............................................. 504 Rohit C Doshi v Nawaz Transport Company (1982-88) 1 KAR 75 .................. 536 Re Bignell (1) (1892) ChD 63 .......................................................................... 539 Re Freeman’s settlement Trusts (2) 37 ChD 148 ................................................ 539 Re Biss, Heasman v Biss and Others (3)89 ........................................................ 541 Re Carlyon (1887), 56 LJ Ch 291 ..................................................................... 558 Re William Davies (1888), 38 ChD 210Re Royle (1890) .................................. 558 Re Powers (1885), 30 Ch D 291 ....................................................................... 559 Re Ellis, 59 LT 924 ........................................................................................... 559 Re Sutcliffe, (1942) 1 Ch 453 ........................................................................... 560 Re Ruenji’s Estate [1977] KLR 21 ................................................................... 614 .................................................................................................................. 624 Re Ogola’s Estate [1978] KLR 18 ..................................................................... 615 .................................................................................................................. 624 .................................................................................................................. 625 Re Usborne [1909] 25 TLR 519....................................................................... 148 Re Ussher, Foster v Ussher (1922) 2 Ch............................................................ 231 Re Vere-Wardale (1949) ...................................................................................... 76 Re Ward’s Estate: Ward v Ward (1937) ................................................................ 213 Re Wasserberg (1915) 1 Ch 195; [1914-1915 All ER Rep ................................... 60 Rohit C Doshi v Nawaz Transport Company (1982 -88) 1 KAR 75 ................. 536 Re Royle (1890) .............................................................................................. 559 Re Stuart, Johnson v Williams (5), [1940] 4 All ER 80....................................... 238 Re Gillson (deceased), Ellis v Leader (6), [1948] 2 All ER.................................. 238 Re Earl of Radnor’s Will Trusts (7) (1890), 45 Ch D 402 ................................... 238 Re Ruenji’s Estate and Re Ogola’s Estate.......................................................... 624 Re Yusuf bin Simbani (Deceased) [962] EA 623 ................................................ 296 Re Katumo and another [2003] 2 EA 509......................................................... 314 Re Kibiego [1972] EA 179 ............................................................................... 325 Roebuck v Dean (2 Ves 265; 30 ER 970) .......................................................... 237 Rogers and Andrews v Goodenough (1862) 2 Sw and Tr 342; 164 ER 1028.................................................................................................... 201 Roman Carl Hintz v Mwang’ombe Mwakima (1982 -1988) 1 KAR 482................................................................................................... 337 Rono v Rono and another (2005) 1 KLR 538 [2005] 1 EA 363 ......................... 17 .................................................................................................................. 252 Roscoe v Winder 1915 1 Ch 62 ....................................................................... 586 Rustomji Kersasji Khursedji Sidhwa v Dinshaw Ruttonji Mehta and others (1934) 1 EACA 38 ......................................................................... 239 Russell v Long (4 Ves 551; 31 ER 283) .............................................................. 236

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S Sakina Sote Kaittany and another v Mary Wamaitha CACA No. 108 of 1995 ...................................................................................................... 334 .................................................................................................................. 631 Sallis and another v Jones (1936) P 43 [1935] All ER ........................................ 194 Saleh bin Mohamed bin Omar Bakor v Noor binti Sheikh Mohamed bin Omar Bakor1951) 18 EACA 30 ........................................................... 590 Samwel Wafula Wasike v Hudson Simiyu Wafula (1993) LLR (CAK) ....................................................................................................... 465 Sastry Aronegary v Sembecutty Vaigalil (1880 -1881) 6 AC 364 ......................... 504 Sargent v Gautama [1968] EA 338 .................................................................... 523 Seddon v The North Eastern Salt Co Ltd ((1905).............................................. 580 Sewe v Sewe and another (1991) KLR 105 ....................................................... 321 Shillington v Portadown UDC (1911................................................................ 213 Shital Bimal Shah and others v Akiba Bank Limited and others ......................... 528 Singh and others v Amirchand and others [1948] 1 All ER 152 AC 161........................................................................................................ 91 Sinclair v Brougham (1914) AC 398.................................................................. 583 Sloan v Maxwell, 2 HW Green ........................................................................... 69 Smart v Prujean (6 Ves 560) .............................................................................. 155 .................................................................................................................. 159 Smee and others v Smee and Corporation of Brighton (1879) 5 PD 84 .......................................................................................................... 89 Smith v Tebbitt (Law Rep 1 P and M 398).......................................................... 72 Stafford v Stafford ((1857) 1 De G and J 193) .................................................... 579 Staniland v Willott ((1852) 3 Mac and G 664; 42 ER 416) .................................. 61 Stephens and six others v Stephens and another [1987] KLR 125 ...................... 550 Steven v Vancleve, (9822) 4 wash CC 262, Cas 35 CCDNJ .................................. 69 Stringer v Phillips (1 Eq Cas Abr 292; 21 ER 1053) .......................................... 236 Stoddart v Grant (1 Macq), ............................................................................... 180 Stockil and others v Punshon and others (6 PD 9) ............................................ 156 Symes v Green, (1859) 1 Sw and Tr 401 .............................................................. 82 Sugden v Lord St Leonards (1876) 1 PD 154, [1874-80] All ER .......................... 90 Susan Wakabari Njiru v Caroline Wanjira Kamau HCCA No. 102 of 1994 ...................................................................................................... 286 T Taplin – Watson v Tate [1937] 3 All ER 105 ...................................................... 504 Teresia Wambui Maruhi v Onesmus Maina Maruhi and another HCCA No. 3 of 2002 ................................................................................ 279 Tharp Longrigg v People’s Dispensary [1942] 2 All ER 358 .............................. 213 The Lady Chester’s Case 1 Vent 207 .................................................................... 47 The Public Trustee v Jotham Kinoti and another HCCA No. 3111 of 1985 ...................................................................................................... 524

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Thumbi Weru and others v John Wachira Mwaniki CACA No. 191 of 1998 ...................................................................................................... Townley v Watson (1844) (3 Curt 761) ............................................................. Troustik Union International and another v Mrs Jane Mbeyu and another CACA No. 145 of 1991 .......................................................... Tyrrell v Painton and another 1895] 1 QB 202..................................................

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384 197 343 129

U University College of North Wales v Taylor (1908) ............................................ 158 V Vaghella v Vaghella [1999] EA 351....................................................................... 88 .................................................................................................................. 107 Veal v Veal (27 Beav 303) .................................................................................... 59 Veronicah Mwikali Mwangangi v Daniel Kyalo Musyoka [2005] eKLR ....................................................................................................... 327 Virginia Wambui Otieno v Joash Ochieng Ougo and Omolo Siranga (1982-88) 1 KAR 1049 ............................................................................. 334 Vijay Chandrankant Shah and others v The Public Trustee CA No. 63 of 1984 ........................................................................................................ 73

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W Wairimu Gathute v Theuri Wambugu and another CACA No. 33 of 1991 ...................................................................................................... 383 Wambugi w/o Gatimu v Stephen Nyaga Kimani (1992) 2 KAR 292 .................. 24 .................................................................................................................. 295 .................................................................................................................. 685 Wambui and another v Gikonyo and others [1988] KLR 445 ............................ 163 Wanjau Wanyoike and four others v Ernest Wanyoike Njubi Waweru and another HCCS No. 147 of 1980 .......................................................... 114 Wankford v Wankford (1702) ............................................................................ 341 Wakf Commissioner of the Colony and Protectorate of Kenya v Alimohamed Ali Nahdi Executor of the Will of Aisha binti Shafi, Deceased (1951) 18 EACA 86.................................................................... 220 W B Keatinge v Mohamed bin Seif Salim and others [1929 - 30] 12 KLR 74 ................................................................................................ 692 Weeding v Weeding (1861) (1 J and H 424) ...................................................... 208 Wildish v Fowler (1892) 8 TLR 457 ................................................................... 64 Wilkes v Allington (1931) 2 Ch 104.................................................................... 62 Willingstone Muchigi Kimari v Rahab Wanjiru Mugo CACA No. 168 of 1990 ........................................................................................................ 97 .................................................................................................................. 146 .................................................................................................................. 284 Williamson v Naylor......................................................................................... 210 Wintle v Nye [1959] 1 All ER 552, 1 WLR 284 ............................................... 112

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Wingrove v Wingrove and others (1886) 11 PD 81 ........................................... W Scott Fulton and others v Charles Batty Andrew and another (1875) LR 7 HR 448............................................................................................ Whitehead v Palmer, (1908) 1 KB 151 .............................................................. Willmott v Barber ((1880) 15 Ch D 96 .............................................................

109 124 362 578

Z

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Zakayo Ngugi Mundia v Charles Gitonga Kamathi HCCA No. 5122 of 1987 ...................................................................................................... 342 Zipporah Onzere v Sammy Mavalah [2008] eKLR ........................................... 434

PART ONE

INTRODUCTION The law of succession governs the devolution of property from a deceased person to a new owner. It defines the patterns of devolution and establishes the institutions and structures that control the devolution, with the objective of ensuring a peaceful and orderly distribution of the estate of the deceased.

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The succession legal regime in Kenya is characterised by a multiple application of different inheritance systems to different ethno-religious groups, a factor whose existence obtains on account of historical reasons. The Africans, historically, were the first on the Kenyan scene; they brought with them their various inheritance systems. The Arabs made contact with the east coast of Africa since the period around 1000 AD, when they came in as merchants, but later established settlements along the coast, and in some cases intermarried with the locals – the Swahili people and culture emerged from this interaction. They brought with them the Islamic faith, culture and inheritance system. The other group from Asia that found its way into the east coast came from the Indian sub-continent, and like the Arabs, they came for commercial purposes. They too came with their culture and succession systems. The Europeans came last, the Portuguese first and later the English; with them came inheritance systems based on European notions. The Arabs evangelised to a limited extent and small pockets of the hinterland populations converted to Islam, and by so doing subjected themselves to the Islamic system of inheritance. The Indians had little interaction with the local population and therefore the culture had little impact on the local populations. The entry of the Europeans, and especially the English, had the most profound impact. They colonised the other groups, and imposed their legal structures on them, with the objective of replacing the rest with the English law and the institutions that that law calls into existence. In the realm of succession law, and personal law in general, where they were unable to replace the prevailing personal law, they sought to subordinate such law to English law by bringing it under their control through legislation, which defined its scope and application and established judicial institutions to apply it. This part covers the background to the modern law of succession in Kenya. The cases in Chapter one are not picked to demonstrate any particular legal principle that the court stated in them, but essentially because they put the laws applying in the country at the particular time into perspective. Chapter two covers decisions made after the Law of Succession Act came into operation, and they deal with the scope of the Act, as well as the applicability of other succession laws.

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CHAPTER 1 HISTORY

OF

LAW

OF

SUCCESSION

IN

KENYA

1.1 INTRODUCTION Before the British imposed their rule over what is today Kenya, the inhabitants, mainly the Africans, Arabs and Indians had their own succession systems. At the onset of colonialism, the British introduced a new legal system over the area confirming the laws that were already in existence, providing for new ones, stating the scope of the applicable laws and establishing new institutional structures for the application and the interpretation of these laws.This resulted in the four parallel legal structures regulating succession to the estates of the four socio-cultural groups in the country.

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The scenario obtained throughout the colonial period, although there were internal changes within each separate law of succession system. Cases numbers 1 and 2 show the law as it applied to Africans in the period before the enactment of the Law of Succession Act. Initially all Africans, regardless of their education and faith, were subjected to the customary law of succession, covering both customary intestate and testamentary succession, and both the customary substantive and procedural law. The period towards and after independence saw movement towards bringing Africans under the statutory law of succession. During the period of the decision in Case number 1, Africans were fully subjected to African customary law without being given an alternative.This had its disadvantages. Towards independence, the colonial government gave them an alternative following the passage of the African Wills Ordinance in 1961. Mr Arthur Phillips, a crown counsel, in a report he wrote on Native Tribunals, discussed the challenges and disadvantages of applying customary law to a modernising population, and recommended law reform that would give such modernised Africans an alternative to customary law. On the section of the report on succession he wrote: THE PRESENT LAW 924. The native law of succession seems to present the same general features which have usually been characteristic of this branch of law in societies at an early stage of development. It is adapted to conditions of life in a community in which: (a)

Land and stock are practically the only forms of inheritable property; and

(b)

Women have no rights of inheritance, and are indeed themselves treated more or less as part of the estate.

In some tribes there is a certain power of testamentary disposition, but this is usually very limited...

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925. Native law and custom is at present, subject to certain exceptions..., the only law applicable to natives on matters of succession...It is due to the absence of any other law on this subject which is applicable to natives. As long ago as 1912 it was ruled by the Supreme Court that native succession must be regulated by native law and custom, the reason being that: ‘the law of succession applied to this Protectorate is the Indian Succession Act...but that law does not apply to natives, vide the Application to Natives of Indian Acts Ordinance, 1903’1

It was held that the fact that the deceased had contracted a Christian marriage did not affect the question of succession. 926. … 927. The inadequacy of a law of succession based solely on native custom has become more and more apparent in recent years. Such a law is incapable of providing satisfactorily for the needs of the many Africans, both within the reserves and outside them, whose way of life under modern conditions is radically different from that of a primitive tribesman. Among other factors, the existence of new forms of property, unknown to native custom, has brought about great changes. many Africans now possess houses, shops and other buildings constructed of stone or other permanent materials; motor cars and lorries, shares in businesses; life insurance policies; Savings Bank deposits, etc. Where a deceased native’s estate takes the form of cash, or can be easily converted into cash, there is a grave danger of its being dissipated by a feckless or unscrupulous heir, to the detriment of those dependants of the deceased for whom he is a trustee. The safeguards against such abuse which existed in tribal society may now be entirely absent. In such cases to adhere to the letter of native law may be utterly to contravene its spirit. 928. ... 929. ... 930. ...

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931. ... 932. ... 933. It seems clear, therefore, that the stage has reached when it would be unreasonable any longer to deny to Africans altogether the right to dispose of their property by will otherwise than in accordance with native law and custom... PROBLEMS AND DANGERS OF LEGISLATION 934. There can be no question of sweeping away the existing native law of succession and substituting a complete new system. The problem is to make special provision for a certain section of the community which has adopted a mode of life different from that of the remainder; and any attempt to solve this problem by the arbitrary creation within the community of a privileged class, exempt from the ordinary law and from the jurisdiction of the ordinary courts of that

1

Benjawa Jembe v Priscilla Nyondo 4 EALR (1912) 160.

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community, would be likely, in my opinion, to give rise to worse confusion and injustice than that which it seeks to remedy. Some differentiation there clearly must be; but we should aim at reducing it to a minimum, and in particular at avoiding any conflict between two different systems of law, administered by different sets of courts. 935. I would therefore urge that the approach to this question should be similar to that which I have advocated in respect of the law of; i.e. the object should be to encourage and promote the adaptation and amendment of native law rather than to superimpose an alien and conflicting ‘European’ law. This view is reinforced by the fact that marriage and inheritance are so closely interconnected in practice that it is essential for them to be coordinated on a common legal basis . I would add that this principle might well be extended to include the law of land tenure, which is often closely bound up with the questions of inheritance. 936. ... 937. ... 938. ... 939. ... 940. ... 941. ... SOME TENTATIVE PROPOSALS 942. ...

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943. I propose, firstly, that a distinction be drawn between two classes of property: (a)

Property which a person has acquired by virtue of his tribal or clan affinities (e.g. land and inherited stock or their offspring) including any property which he holds as a trustee or which is the subject of a lien (e.g. for bride price)for the benefit of members of his family or clan other than his immediate dependants.

(b)

Any other property: in this category would normally be included such property as person might have acquired entirely as a result of his own labours (e.g. wages, profits of business, etc).

944. Secondly, I propose that, subject to certain restrictions...there should be a general right of testamentary disposition. I think it very doubtful whether any attempt to confine the power of making a will to certain classes of persons would be successful. It would be extremely difficult to find a suitable criterion, which would provide a simple and satisfactory means of determining who was qualified to make a will. If the power to make a will were granted without discrimination, it would probably be found that in practice those who made use of it would almost always be members of the more progressive and educated classes, for whose benefit it was primarily intended. Moreover, there is reason to think that in many tribes the making of a will would not in itself be fundamentally inconsistent with the principles of native law. The change would consist mainly in the substitution of a written and perhaps secret document for a verbal deathbed declaration in the presence of witnesses.

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945. Thirdly, there would be two main safeguards against abuse of the testamentary power: (a)

There would be a presumption that any will, which is purported to dispose of property falling within the first of the categories of, mentioned above was invalid in so far as such disposition conflicted with the ordinary rules of native law. Provision might possibly be made, however, for a testator during his lifetime to ‘contract out’ of his obligations to his fellow-clansmen: e.g. if full individual tenure of land were recognised by law, a particular piece of land might be regarded as ‘disentailed’ and capable of being disposed of by will to any member of the tribe.

(b)

It would be necessary to guard against the danger that a testator might fail to make proper provision for his wife and children or other dependants... the best way of providing against such abuse of testamentary power would probably be by enabling the parties affected to apply to the appropriate court for an order overriding the terms of the will and directing that suitable provision be made out of the estate for the testator’s dependants. (Cf the Inheritance (Family Provisions) Act, 1 and 2 Geo 6, c 45, which was passed in England in 1938).

946. Fourthly, there is the question of what provision should be made for cases where a person has died intestate and circumstances render it desirable that succession should be determined otherwise than in accordance with the prevailing native law and custom. I think that great difficulty would be found in laying down any general rules to cover such cases...The most important of these principles would be that the paramount consideration should be the interests of the deceased’s immediate dependants, and that departure from the ordinary rules of succession would only be justified if its purpose were the more efficient safeguarding of those interests. 947. ... 948. … Benjawa Jembe v Priscilla Nyondo

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[1912] 4 EALR 160 (Barth J)

CASE NO. 1

(In the period after 1904 the applicable law to the estate of a deceased African Christian was the custom of his tribe governing the subject) The deceased married a woman, from outside his community, according to the rites of the Anglican Church. He subsequently married other wives under customary law. The issue was which law applied to his estate, the English law or customary law.The court found that customary law applied following the developments in the law in the protectorate in 1904.

BARTH J: The learned magistrate in the court below has held that as the respondent had married the deceased by a Christian marriage and that he was of the opinion that the deceased had committed an offence against English law and the East African

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Marriage Ordinance 1902 by marrying again during his Christian wife’s lifetime without first obtaining a divorce therefore, the Christian wife was the only lawful wife according to the rites of the Church of England and English law. On the basis of that he found that the law applicable to the distribution of the estate was English law and evidently regarded the respondent as entitled to a widow’s share of the intestate estate under that law. The law of succession applied to this Protectorate is the Indian Succession Act, vide East African Order in Council 1897 article 11, but that does not apply to natives, vide the Application to Natives of Indian Acts Ordinance 1903. The fact that the deceased married a wife according to the rites of the Anglican Church does not, since the repeal of section 39 of the Native Christian Marriage Ordinance 1904, in my opinion, affect the succession to his property. Such succession must be regulated by native law or custom. I therefore allow the appeal and direct that the deceased husband’s estate be distributed according to Mdurma law or custom. Re Maangi [1968] EA 637 (Farrell J) (As Kenya approached independence and after it achieved the same, law reform moved towards bringing the estates of deceased Africans under the realm of statute law)

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CASE NO. 2

An African died intestate before the Law of Succession Act was promulgated. Ordinarily the estate of an African intestate would have been administered in accordance with the relevant customary law; however because of certain changes in the law, it was ordered that the estate be administered in accordance with the Indian Probate and Administration Act, 1881. The widow of the deceased was granted letters of Administration under the Indian Probate and Administration Act, 1881.

FARRELL J: This is an application for the grant of letters of administration to the widow, an African, of a deceased African inspector of police. The application involves an important question of principle, since hitherto it has not been the practice to make such grants to Africans.The existing practice stems from a provision in the Indian Acts (Amendments) Act which appears as Chapter 2 of the Revised Edition of the Laws of Kenya, 1948. Section 9 of that Act deals with the application of Indian law to Africans. Subsection (1) reads as follows: ‘(1)

The provisions of all Indian Acts already applied or hereafter to be applied in (the Colony) shall apply to Africans to the extent herein provided or as may be expressly declared by the (Ordinance) but not otherwise.’

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Subsection (2) lists certain enactments as extended to Africans. It is sufficient to mention that the Indian Probate and Administration Act, 1881, is not so listed. Then sub-section (3) provides as follows: ‘(3)

The provisions of all other applied Indian Acts shall extend to Africans in so far as they refer to the following matters: (a)

The protection of life and property.

(b)

The maintenance of order.

(c)

The collection and payment of revenue fees or charges either generally or locally

(d)

Railways and tramways.’

It has never been suggested that sub-section (3) has nay relevance to the Probate and Administration Act, and the effect of the section read as a whole has been to exclude the application of the Act in question to Africans, and to prevent the grant to Africans of probate or letters of administration. ... It is agreed by both counsel who appeared before me on the originating summons that section 9 of the Indian Acts (Amendments) Act is discriminatory within the meaning of section 26(3) of the Constitution, and I ... accept that the section (so far at any rate as it effects the application to Africans of the Indian Probate and Administration Act) is discriminatory. ... I accordingly hold that section 9 of the Indian Acts (Amendments) Act, in so far as it has the effect of precluding the application of the Indian Probate and Administration Act to Africans, is discriminatory and that in accordance with section 14 of the Constitution of Kenya (Amendment) Act 1964, the provision must be construed as if the Indian Probate and Administration Act were mentioned in sub-section (2) of the section, or with such other modification as would have the same effect. So far as the present application is concerned, I direct that letters of administration intestate shall issue to the applicant as prayed.

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*** Cases numbers 3 and 4 are on marriages of Hindus and Sikhs, contracted during the colonial period. The courts discussed in detail the historical background to the application of the relevant laws, as well as the scope of the said laws. The statutes referred to were the Indian Succession Act of 1865, the Hindu Wills Act of 1870, the Indian Probate and Administration Act of 1881, the East African Order in Council of 1897, and the Hindu Marriage, Divorce and Succession Ordinance, Chapter 149.

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Basant Kaur, widow of Nagina Singh s/o Hira Singh Mistry v Rattan Singh s/o Nagina Singh Mistry [1952] 25 KLR 24 (Bourke J)

CASE NO. 3

(The Hindu Marriage, Divorce and Succession Ordinance, Chapter 149, applied to the estate of a Hindu, but the said law did not recognise a marriage contracted outside the colony) The widow of the deceased sought orders for her maintenance out of property belonging to her husband, inherited by her son. The court discussed the relevant law applying to Hindus during the colonial period, and concluded that the widow was not entitled to such maintenance under the law that was in application in Kenya at the time.

BOURKE J: Section 9 of Chapter 149 reads as follows: (1)

Subject to the provisions of this or any other Ordinance for the time being in force in the Colony, the succession to the movable property in the Colony of deceased Hindu who at his death is domiciled in the Colony and to the immovable property in the Colony of a deceased Hindu, whether domiciled in the Colony at his death or not, shall be regulated by Hindu law: Provided that every creditor shall have the same rights and remedies against the estate of a deceased Hindu (including the right to follow assets) as he has against the estate of a deceased Christian.

(2)

This section shall apply to the estate of a Hindu who died before the commencement of this Ordinance in like manner as applies to the estate of a Hindu dying after the commencement of this Ordinance:

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Provided that no part of an estate which has been distributed before the commencement of this Ordinance shall be recoverable by reason only of any alteration in the law affected by this Ordinance.’

It is argued for the plaintiff that this is an action seeking to realise the rights arising by way of succession under section 9 and that for the purposes of that section a Hindu marriage taking place outside the Colony may properly be regarded as valid. but section 9(1) is made – ‘subject to the provisions of this or any other Ordinance for the time being in force in the Colony...’ and section 3(1) of Chapter 149 provides: ‘the marriage in the Colony of Hindus whether domiciled in the Colony or not, who are not related to each other in any of the degrees of consanguinity or affinity prohibited by the law of the religion of either party to the marriage shall, if the marriage is contracted in the manner customary in the Colony among persons professing the religion of either party to the marriage, be deemed for all purposes to be a valid marriage: Provided that from and after the commencement of this Ordinance no boy under the age of eighteen years and no girl under the age of sixteen years shall be capable of contracting a valid Hindu marriage.’

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The marriage alleged in this case admittedly did not take place in the Colony and so cannot be deemed for the purpose of succession or any other purpose to be a valid marriage. The plaintiff accordingly cannot be regarded as the widow of the deceased for the purpose of maintaining this action. She is in no position to establish any right of succession under section 9 for that section is subject to the provisions of section 3. I am also of the opinion that the defendant’s further ground of objection must be upheld, namely, that this is anyway not a claim in succession to which section 9 can apply; and were it otherwise the plaint is defective as this defendant should be sued in his representative capacity as administrator of the estate.

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Section 11 of the Ordinance provides that a court may ascertain the Hindu law by any means which it thinks fit. In resolving this point I think that in order to discover whether this is a claim in succession this court is entitled to look to the Hindu law. To ascertain that law I think it fit to refer to the work put before me in argument; that is, Mulla on the Principles of Hindu Law, (10 ed), at pages 604, 613 and 622. It seems clear that the law is that a widow is entitled to a right of maintenance out of her husband’s estate, but she does not succeed to the estate of her husband as an heir. An heir is legally bound to provide, out of the estate which descends to him, maintenance for those persons whom the late proprietor was legally and morally bound to maintain. The reason is that the estate is inherited subject to the obligation to provide for such maintenance. A stepson is under personal obligation to maintain his stepmother: but if he inherits his father’s estate, he is bound to maintain her out of that estate, she being a person to whom his father was legally bound to maintain as his wife.: Bai Daya v Natha (1885) 9 Bombay, 279; Narbadabai v Mahadeo (1881) 5 Bombay, 99. The claim of a widow for maintenance is not a charge upon the estate, which may be done by decree of a court or by agreement between the widow and the holder of the estate or will. The plaintiff is asserting such a right of maintenance and not, as is contended by her advocate, a right of inheritance and succession to which section 9 would apply. No share in the estate devolves upon her as an heir upon intestacy; and in speaking of the regulation of the succession to the property of a deceased Hindu; I do not think that the section can be held to cover the right to maintenance and the obligation of an heir to provide maintenance out of the estate he inherits.

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Charan Singh Chadha and another v Mohinder Singh Chadha and others [1961] 1 EA 637 (Sir Kenneth O’Connor P, Crawshaw and Newbold JJA)

CASE NO. 4

(The Indian Succession Act, 1865, was applied as the general law of succession in Kenya as from 1897, but subsequently other laws were introduced and applied to different communities in the country)

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The matter related to the wills of a Sikh, and turned on the question whether the wills complied with the Indian Succession Act, 1865. The court discussed the statutory laws applying since the advent of colonialism in Kenya to the various communities resident in the country. SIR KENNETH O’CONNOR P: a Sikh is not included in the term ‘Hindu’ in the Wills Act, 1870, which Act throughout refers expressly and separately to the wills of Jainas, Sikhs and Buddhists as well as to wills of Hindus. (The provisions of that Act will be notices in more detail later.) Where, as in the Indian Succession Act, 1865, there is no express mention of Sikhs, the question whether the term ‘Hindu’ is intended to include a Sikh is more difficult. In this connection the proper and ordinary meanings of ‘Sikh’ and ‘Hindu’ are relevant. Generally speaking, it is incorrect to refer to a Sikh as a Hindu, though this has sometimes been done in colloquial parlance and even in the Law Reports. Sikhism in its inception was a revolt against Brahmanical Hinduism. Its founder Guru Nanak (a contemporary Martin Luther) was as much a reformer and dissenter from Hinduism as Luther was from Roman Catholicism. Apart from many important differences in religious observance, there are fundamental differences in belief between Sikhs and Hindus. For instance, Hinduism has a strong bias towards pantheism and its adherents may worship countless deities for a variety of reasons, some extolling one, others another. Nanak’s faith, on the contrary, was sternly monotheistic: Encyclopaedia Britannica (1960 ed) Volume 11 page 174 and Volume 20 page 647. Sikhs are, however, to some extent governed by Hindu law; and certain early Indian Acts, regulations and charters did include Sikhs in the designation of ‘Hindus.’ As Sir Arthur Wilson said in Rani Bhagwan Kaur v Jogendra Chandra Bose (1) (1903), 30 IA 249 at page 253: ‘The framers of the earlier Acts, regulations and charters had a less detailed acquaintance than we have now with the diversities of creed and religious law existing in India.’

It is probable that the Indian Succession Act, 1865, was one of those acts. In section 331 ‘Hindu’ may have been intended to include ‘Sikh.’ I will assume in favour of that part of Mr Khanna’s first proposition which refers to the Indian Succession Act, 1865, that it was so intended, though I do not wish to be taken as deciding the point...The relevant provisions of the Indian Succession Act, 1865, are as follows:

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‘Section 2. Except as provided by this Act or by any other law for the time being in force, the rules herein contained shall constitute the law of British India applicable to all cases of intestate or testamentary succession. ‘Section 331.The provisions of this Act shall not apply to intestate or testamentary succession to the property of any Hindu, Mohamedan or Buddhist; nor shall they apply to any will made, or any intestacy occurring, before the first day of January 1866.’

The relevant provisions of the Hindu Wills Act, 1870 are as follows: ‘An Act to regulate the wills of Hindus, Jainas, Sikhs and Buddhists in the Lower Provinces of Bengal and the towns of Madras and Bombay.

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Preamble: Whereas it is it is expedient to provide rules for the execution, attestation, revocation, revival, interpretation and probate of wills of Hindus, Jainas, Sikhs and Buddhists in the territories subject to the Lieutenant-Governor of Bengal and in the towns of Madras and Bombay; it is hereby enacted as follows: 1.

This Act may be called the Hindu Wills Act, 1870.

2.

The following portions of the Indian Succession Act, 1865, namely: sections 46, 48, 49, 50, 51, 55 and 57 to 77 (both inclusive), sections 82, 83, 85, 88 to 103 (both inclusive), sections 106 to 177 both inclusive and 187 shall notwithstanding anything

3.

Contained in s. 331 of the said Act, apply: (a)

To all wills and codicils made by any Hindu, Jaina, Sikh or Buddhist, on or after the first day of September 1870, within the territories subject to the Lieutenant-Governor of Bengal or the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at madras and Bombay, and

(b)

To all such wills and codicils made outside those territories and limits, so far as relates to immovable property situated within those territories or limits.’

Assuming that the word ‘Hindu’ in section 331 of the Indian Succession Act, 1865, includes Sikh, then, by virtue of that section, the provisions of that Act would not apply to intestate or testamentary succession to the property of a Sikh. That would have been the position in British India from the date of the commencement of the Indian Succession Act, 1865, until the coming into force of the Hindu Wills Act, 1870. The 1870 Act applied certain sections of the Indian Succession Act, 1865 (including section 50, which, as we have seen, provides rules for attestation of wills) to (a) wills of Sikhs made after 1 September 1870, within the territories and towns in India specified in paragraph (a) of section 2 (hereinafter referred to as ‘the Indian specified territories’) and (b) to wills of Sikhs made outside of the Indian specified territories so far as related to immoveable property situate within the Indian specified territories…. (It is unnecessary to refer to the Indian Succession Act, 1925, as that Act was not, so far as I can ascertain, applied in Kenya.) I will now deal with the application of the Indian Succession Act, 1865, and the Hindu Wills Act, 1870, to Kenya – or rather to the East African Protectorate, of which Kenya formed part. By section 5 of the East African Order in Council, 1897, it was inter alia provided that the powers conferred by that Order in Council should extend to (a) British subjects; (b) foreigners; (c) the property and all personal and

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proprietary rights in the East African Protectorate of British subjects and foreigners and; (d) natives, to the extent therein mentioned. By section11(b) the enactments mentioned in the Schedule were made applicable to the Protectorate. The Schedule included: ‘The Indian Succession Act (Act X of 1865) except section 331’ Thus, the Indian Succession Act, 1865, was originally applied to the East African Protectorate without any exception for testamentary succession to the property of Hindus, Mohamedans or Buddhists. There is no doubt; therefore, that the original intention was that section 50 of the Indian Succession Act, 1865, should regulate the will of a Hindu (and of a Sikh) in the East African Protectorate. By section 11(c) of the East African Order in Council, 1897, after providing inter alia that any other existing or future enactments of the Governor-General of India in Council should be applicable to the Protectorate but should not come into operation until such time as might be fixed by the Secretary of State, it was further provided, by section 11(e)(iii), that the Secretary of State might by order modify, for the purpose of the Order in Council, any provision of the said enactments. On 30 September 1898, the Secretary of State made an Order (apparently under section 11 of the 1897 Order in Council) as follows: ‘in pursuance of article 11 of the East African Order in Council, 1897, I hereby order that the following Acts of the Governor-General of India in Council, that is to say the Hindu Wills Act (Act X of 1870), and the Probate and Administration Act, 1881 (Act V of 1881), and any enactment amending or substituted for those Acts shall as from the day on which this order is first publicly exhibited in the Consulate at Mombasa apply to the East African Protectorate.

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‘And I hereby further order that section 331 of the Indian Succession Act (Act X of 1865), shall as from the said day apply to the East African Protectorate...’

It will be seen that at the same moment that section 331 of the Indian Succession Act, 1865, was again applied to Kenya, the Hindu Wills Act, 1870, was also applied. If it is correct that the re-application to Kenya of section 331 of the 1865 Act would have exempted the will of a Sikh made in Kenya from the provisions of section 50 requiring attestation, that effect was simultaneously negatived by the application to the Protectorate of the Hindu Wills Act, 1870, which applied section 50... I think, that the effect of the Secretary of State’s Order was, on the one hand, to apply to wills of Hindus, Jainas, Sikhs and Buddhists in East Africa the rules for the execution attestation, revocation, revival, interpretation and probate contained in those sections of the Indian Succession Act, 1865, which were enumerated in section 2 of the Hindu Wills Act, 1870, while, on the other hand, exempting intestate or testamentary such to the property of any Hindu, Mohamedan or Buddhist in East Africa (and wills made and intestacies occurring before January 1, 1866) from the other provisions of the 1865 Act. I think that the Order must be taken as substituting, for East African purposes, the territory comprising the East African Protectorate for the specified Indian Territories. In other words, the Secretary of State was, by his Order, applying to wills of Hindus, Jainas, Sikhs and Buddhists in East Africa the testamentary law which was applicable under the Hindu Wills Act, 1870 in the specified Indian Territories.

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CHAPTER 2 THE LAW

OF

SUCCESSION APPLYING 1981

IN

KENYA AFTER

2.1 THE LAW OF SUCCESSION ACT IS THE GENERAL LAW OF SUCCESSION IN KENYA The Law of Succession Act is the general law of succession in Kenya by virtue of section 2(1). It is of universal application to estates of persons dying after the Act came into force.The Act ousted the application of the laws that were in force before it came into operation. One effect of section 2(1) of the Act was to oust the application of the African customary law of succession. Cases numbers 5, 6 and 148 illustrate the scope of the Act as set out in section 2(1).

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Section 2(1) states: - ‘Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application in all cases of intestate or testamentary succession to estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.’

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Francis Njoroge Muigai and others v John Njoroge Muigai High Court civil appeal number 18 of 2001 (Kamau J) (The distribution of an estate, in accordance with customary law, of a person dying after the commencement of the Law of Succession Act, is inconsistent with section 2(1) of the Act. The effect of section 2(1) is to oust the application of African customary law). CASE NO. 5

The dispute was on the mode of distribution of the intestate estate of an African. The Magistrate’s Court ruled that the same should be in accordance with customary law. On appeal to the High Court it was contended that the deceased having died in 1997, that is after the Law of Succession Act had come into force, the law applicable to the estate of the deceased should be the Law of Succession Act and not customary law. It was held that customary law did not apply to the estate since the deceased had died after the commencement of the Law of Succession Act, which should be the applicable law.

KAMAU AJ: It is not in dispute that the deceased died intestate on 15 April 1997 and that therefore the administration2 of his estate is governed by the provisions of the Law of Succession Act (Chapter 160) which at section 2(1) inter-alia provides that the said Act shall: ‘have universal application to all cases of intestate and testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.’

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The said Act came into force with effect from 1 July 1981, and in the application preamble, (sic) it is described as an Act of universal application. In his judgment, the said learned magistrate did not take any cognisance of the provision (sic) of the Law of Succession Act. He did not attempt to direct his decision to the strict provisions of the said Act and its applicability to the estate of the deceased… I hold that the decision of the magistrate was made per incuriam and cannot therefore hold in law.

2

‘Administration’ would appear to be a poor choice of word, as it would suggest that only Part VII of the Law of Succession Act would be of application to this estate. Part VII deals with administration of estates. The Act applies in its entirety to the estate of an intestate dying after its commencement, but the application of the Act will be limited to Part VII in situations where the intestate died before it came into force. The court should have talked of the estate being governed exclusively by the Act.

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Rono v Rono and another [2005] 1 EA 363. (Omolo, Waki and O’Kubasu JJA) (The application of African customary law of succession is expressly excluded by section 2(1) of the Law of Succession Act, unless the Law of Succession Act itself makes provision for it).

CASE NO. 6

The deceased hailed from Uasin Gishu district of the Rift Valley province and died in 1988, survived by two wives and nine children (six daughters and three sons), and a dispute arose between the two houses over the distribution of the estate. The High Court took customary law into account in resolving the dispute, and this aspect of the High Court’s judgment was the subject of an appeal to the Court of Appeal. It was held, by the Court of Appeal, that African customary law was no longer applicable to the matter following the coming into force of the Law of Succession Act, which ousted the operation of African customary law.

WAKI JA: The law… The manner in which the courts apply the law in this country is spelt out in section 3 of the Judicature Act Chapter 8, Laws of Kenya. The application of African customary laws takes pride of place in section 3(2) but it is circumscribed thus: ‘…so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law…’

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The Constitution, which takes hierarchical primacy in the mode of exercise of jurisdiction, outlaws any law that is discriminatory in itself or in effect. That is section 82(1). In section 82(3), it defines discrimination as follows: ‘affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed, or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are accorded to persons of another such description.’

That provision has always not been the same with regard to the discrimination on the grounds of sex. ‘Or sex’ was inserted in a relatively recent constitutional amendment by Act number 9 of 1997. In the same section, however, the protection is taken away by provisions in section 82(4) which allow discriminatory laws, thus: ‘Subsection (1) shall not apply to any law so far as that law makes provision: (a)

…

(b)

With respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law;

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(c)

For the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons

(d)

…

Is international law relevant for consideration in this matter? As a member of the international community, Kenya subscribes to international customary laws and has ratified various international covenants and treaties. In particular, it subscribes to the international bill of rights, which is the Universal Declaration of Human Rights (1948) and two international human rights covenants: the Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights (both adopted by the UN General Assembly in 1966). In 1984 it also ratified, without reservations, the Convention on the Elimination of All Forms of Discrimination against Women, in short, CEDAW. Article 1 thereof defines discrimination against women as: ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social cultural, civil or any other field.’

In the African context, Kenya subscribes to the African Charter of Human and Peoples’ Rights, otherwise known as the Banjul Charter (1981), which it ratified in 1992 without reservations. In article 18, the Charter enjoins member states, inter alia, to:

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‘… ensure the elimination of every discrimination against women and also ensure the protection of rights of the woman and the child as stipulated in international declarations and conventions.’

It is in the context of those international laws that the 1997 amendment to section 82 of the Constitution becomes understandable.The country was moving in tandem with emerging global culture, particularly on gender issues. There has of course, for a long time, been raging debates in our jurisprudence about the application of international laws within our domestic context. Of the two theories on when international law should apply, Kenya subscribes to the common law view that international law is automatically part of the domestic law where it has been specifically incorporated. In civil law jurisdictions, the adoption theory is that international law is automatically part of the domestic law except where it is in conflict with domestic law. However, the current thinking on the common law theory is that both international customary law and treaty law can be applied by state courts where there is no conflict with the existing state law, even in the absence of implementing legislation. Principle 7 of the Bangalore Principles on the Domestic Application of International Human Rights Norms states: ‘it is within the proper nature of the judicial process and well established functions for national courts to have regard to international obligations which a country undertakes – whether or not they have been incorporated into domestic law – for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or the common law.’

That principle, amongst others, has been reaffirmed, amplified, reinforced, and confirmed in various international forums as reflecting the universality of human rights inherent in men and women. In Longwe v International Hotels (1993) (4 LRC 221), Justice Musumali stated:

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‘… ratification of such (instruments) by a nation state without reservations is a clear testimony of the willingness by the state to be bound by the provisions of such (instruments). Since there is that willingness, if an issue comes before this court which would not be covered by local legislation but would be covered by such international (instrument), I would take judicial notice of that treaty convention in my resolution of the dispute.’

A clear pointer to the currency of that thinking in this country is in the draft Constitution where it is proposed that the laws of Kenya comprise, amongst others: ‘Customary international law and international agreements applicable to Kenya.’

I have gone at some length into international law provisions to underscore the view I take in this matter that the central issues relating to discrimination which this appeal raises cannot be fully addressed by reference to domestic legislation alone.The relevant international laws which Kenya had ratified, will also inform my decision. Conclusion ... The deceased died in 1988, while the Law of Succession Act which was enacted in 1972, became operational by Legal Notice number 93 of 1981, published on 23 June 1981. I must therefore hold, as the Act so directs, that the estate of the deceased falls for consideration under the Act. Section 2(1) provides:

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‘2(1). Except as otherwise expressly provided in the Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.’

The application of customary law… is expressly excluded unless the (Law of Succession) Act itself makes provision for it. The Act indeed does so in sections 32 and 33 in respect of agricultural land and crops thereon or livestock where the law or custom applicable to the deceased’s community or tribe should apply. But the application of the law or custom is only limited to ‘to such areas as the Minister by Notice in the Gazette specify.’ By Legal Notice number 94 of 1981, made on 23 June 1981, the Minister specified the various districts in which those provisions are not applicable. The list does not include Uasin Gishu district within which the deceased was domiciled. So that, the law applicable in the distribution of the agricultural land in issue in this matter is also written law. Does the Act provide for the manner of distribution? Partly,Yes. The superior court was of the view that section 27 of the Act donates unfettered discretion to the court in the sharing of the estate considering the definition of ‘dependant’ in section 29 to include the ‘wife and children of the deceased.’ It is in exercise of that discretion that the learned judge disregarded consideration of the sharing proposed by the parties altogether and made her ‘own independent distribution.’ It was also pursuant to that discretion that she based her decision to allocate minimal shares to the daughters on the basis that they would get married.While I do not doubt the discretion donated by the Act in matters where dependants seek fair distribution of the deceased’s net estate I think the discretion, like all discretions exercised by the courts, must be made judicially or put it another way, on sound legal and factual basis.. The possibility that girls in any particular family may be married is only one factor among others that may be considered in exercising the court’s discretion. It is not a

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determining factor. In this particular case however, I find no firm factual basis for making a finding that the daughters would be married. As shown by the undisputed facts above, all except one were married or divorced in 1994 and were advanced in age. Eleven years later when this appeal was heard, there was no evidence that the situation had changed. It is also an undisputed fact that the deceased treated all his children equally and never discriminated between them on account of sex. It is a factor in my view that was not sufficiently considered although it resonates with the noble notions enunciated in our Constitution and international laws.The respondents themselves clearly recognised and honoured the wishes of the deceased when they proposed to give 14 acres of the land to each daughter of the deceased. I find no justification for the superior court whittling that proposal down to 5 acres to each daughter. More significantly, section 40 of the Act which applies to the estate makes provision for distribution of the net intestate estate to the ‘houses according to the number of children in each house, but also adding any wife surviving the deceased as an additional unit to the number of children.’ A ‘house’ in a polygamous setting is defined in section 3 of the Act as a ‘family unit comprising a wife...and the children of that wife.’ There is no discrimination of such children on account of their sex. OMOLO JA: I had the advantage of reading in draft form the judgement prepared by Waki JA, and while I broadly agree with that judgement, I nevertheless wish to point out that I do not understand the learned judge to be laying down any principle of law that the Law of Succession Act, Chapter 160 of the Laws of Kenya, lays down as a requirement that heirs of a deceased person must inherit equal portions of the estate where such a deceased dies intestate and that a judge has no discretion but must apply the principle of equality as was submitted before us by Mr Gicheru. I can find no such provision in the Act. Section 40(1) of the Act provides that:

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‘where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and all the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.’

My understanding of that section is that while the net intestate estate is to be distributed according to the number of houses, each house being treated as a unit, yet the judge doing the distribution still has discretion to take into account or consider the number of children in each house. If Parliament had intended that there must be equality between the houses, there would have been no need to provide in the section that the number of children in each house be taken into account. Nor do I see any provision in the Act that each child must receive the same or equal portion. That would clearly work an injustice particularly in case of a young child who is still to be maintained, educated and generally seen through life. If such a child, whether a girl or a boy, were to get an equal inheritance with another who is already working and for whom no school fees and things like that were to be provided, such equality would work an injustice and for my part, I am satisfied the Act does not provide for that kind of equality.

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What I understand Waki JA, to be saying is that in the circumstances of this particular case, there was no reasonable factual basis for drawing a distinction between the sons on the one hand and the daughters on the other hand. Subject to what I have said herein, I agree with the judgement of Waki JA and the orders proposed by him. ***

2.2 THE LAW APPLYING TO ESTATES ACT CAME INTO FORCE

OF

PERSONS DYING BEFORE

THE

Section 2(2) of the Law of Succession Act defines the law to apply to the estates of persons dying before the Act came into force. The provision states: ‘The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.’ Cases numbers 7 and 8 illustrate the application of section 2(2) of the Law of Succession Act to estates of persons dying after the Act came into force.

In the Matter of the Estate of Kiiru Muhia ‘A’ (deceased) Nairobi High Court s civil suit number 2487 of 1996 (Rawal J) (The provisions of the Law of Succession Act do not apply to the estate of a person who died before the Act came into force).

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CASE NO. 7

The deceased polygamist died in 1953. The issue was division of his land between his two houses. It was contended by one of the houses that the provisions of the Law of Succession Act, specifically section 40 which deals with the division of a polygamist’s intestate estate, should be applied to the estate. The court held that the deceased died before the Law of Succession Act came into force and therefore the Act could not be of application to him3.

RAWAL J: It is… not controverted that in the year 1983 the land was subdivided equally amongst the two houses as per Kikuyu customary law. I also take judicial notice that the deceased died in 1953 and provisions of the present Laws of Succession Act (sic) cannot apply to his estate. The contention of Mr Mbigi the learned counsel for the petitioner/respondents to the effect that section 40 of the said Act should be applied to the estate cannot be accepted.The Act came into operation only on 1 July 1981 and its provisions cannot be applied retrospectively specifically taking into consideration provisions of section 14 thereof.

3

4

This is not altogether correct.According to section 2(2) of the Law of Succession Act the substantive provisions of the Act, that is those relating to testate and intestate succession will not apply to the estate of a person who died before the Act came into operation, but Part VII of the Act on the procedures and processes relating to administration of estates will be of application to the estate of such a person. Section 1 is on the commencement of the Act: it was by notice in the Gazette and it commenced on 1 July 1981.

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In the Matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias Mwaura Mbura (deceased) Nairobi High Court succession cause number 935 of 2003, (Kamau AJ) (Where the deceased died before the Law of Succession Act came into force the distribution of his estate would be strictly governed by the applicable customary law, but the provisions of the Law of Succession Act as set out in section 2(2) govern the administration of such estate).

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CASE NO. 8

The deceased died intestate in 1966. A grant of letters of administration was made in 2001 to one of the persons who survived him, whereupon a daughter of the deceased moved the court challenging the propriety of the proceedings for the grant of letters as the grant holder had not in his application disclosed the daughter as a survivor and heir of the deceased. One of the issues raised in opposition to the application was that the daughter of the deceased, being a married woman, was not entitled to a share in the estate of the deceased under customary law, which was the applicable law in the circumstances, hence there was no need to disclose her as an heir. The court found that since the deceased died before the Act came into force, the applicable law on the distribution of the estate was customary law, but the law applicable to the administrative and procedural aspects of the estate of the deceased was the Law of Succession Act, and the grant holder was bound by the provisions of the Act to disclose the surviving daughter of the deceased.

KAMAU AJ: It was not in dispute that the deceased died intestate sometime in the year 1966 and that he was survived by the applicant and the respondent as next-ofkin him surviving. It was also not disputed that a Grant of Letters of Administration was issued to the respondent in complete exclusion of the applicant, a daughter of the deceased. Since the deceased died prior to the commencement of the Law of Succession Act (Chapter 160) the distribution of his estate is strictly governed by the applicable customary law. However, the administration of the said estate is governed by the provisions of the Law of Succession Act (Chapter 160) as provided under section 2(2) which reads: ‘the estates of the persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.’

While applying for grant, the respondent was thus duty bound to comply with the substantive administrative provisions of the said Act and in particular observe and fulfil all the requirements set out under rule 7 of the Probate and Administration rules of the said Act and which inter alia confers statutory mandatory duty on the

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part of the applicant to disclose all the surviving children of the deceased. This he never did. While also applying for confirmation of the grant, the respondent was duty bound to identify in his application, as required under section 7(2) proviso, the respective identities and shares of all persons beneficially entitled to the estate of the deceased.This he did but omitted to identify whether the applicant, despite the alleged marriage, was beneficially entitled to the estate of the deceased. The partial disclosure of the very existence of the applicant would however appear to have been prompted by the contents of the affidavit of protest which was filed by the applicant in the said lower court on 23 August 2001 well before the respondent filed his application for Confirmation of Grant on 6 March 2002.

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On the face of the records of the proceedings in the lower court, it is patently clear that when the respondent’s application for confirmation of grant came up for determination., the presiding magistrate omitted to address himself to the said affidavit in protest notwithstanding the non-attendance of the applicant. The said affidavit in protest thus prima facie stands valid on record as it was not addressed nor dismissed as required under rules 40(8) and 41(1) of the Probate and Administration Rules, Law of Succession Act, nor was a Notice in Form 74 issued as required for taking of directions. Furthermore, the consent of the applicant to the making of the grant was never obtained as envisaged under rule 26 of the Probate and Administration Rules Law of Succession Act. I therefore in the aforesaid circumstances find that in pursuance of the provisions of section 76 of the Law of Succession Act Chapter 160, the proceedings to obtain the said grant was obtained through concealment from court of something material to the case. I accordingly order that the said grant and its subsequent confirmation be and is hereby revoked. I further order that de novo succession proceedings do commence forthwith in the said lower court during which proceedings, determination of the mode of distribution of the net intestate estate and the lawful heirs of the deceased under the applicable customary law will be fully canvasses. I accordingly order and direct the Land Registrar Murang’a or as may be applicable to forthwith deregister all the transmission made in favour of the respondent in respect of title numbers Loc 5/Mariaini/242; Loc 6/Kandani/230; Loc 17 /Kamahuha/502 and Loc 17/ Sabasaba/2469 so that the registrations thereof shall revert in the name of the deceased. In pursuance of the provisions of section 93 of the Law of Succession Act that protects the interests of a bona fide third party purchaser for value, I make no order as regards title number Loc 17/Sabasaba/2468 but direct the respondent to compile and ensure appropriate and satisfactory account of the sale proceeds to whoever shall be appointed administrator of this estate. ***

2.3 THE APPLICATION OF SECTION 3(2) OF THE JUDICATURE ACT (CHAPTER 8, LAWS OF KENYA) IN SUCCESSION CAUSES The courts are empowered by section 3(2) of the Judicature Act to be guided by African customary law in civil cases where the parties are subject to it. The provision states:

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‘The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in all civil cases in which one or more of the parties is subject to it or affected by it....’

Cases numbers 10, 11 and 12 illustrate the application of section 3(2) of the Judicature Act, where the court is guided by African customary law in succession matters falling under the Law of Succession Act. Case number 9 is on the application of section 3(2) in a succession matter where the deceased died before the Law of Succession Act came into force ; and it sets out the principles on proof of customary law as well as the test of the repugnancy of a custom. Wambugi w/o Gatimu v Stephen Nyaga Kimani (1992) 2 KAR 292 (Hancox CJ, Masime and Kwach JJA) (Under section 3(2) of the Judicature Act, the court should be satisfied that a custom, if proved, is not repugnant to justice or morality). CASE NO. 9

There was a joint purchase of property by two brothers who subsequently died. The dispute was whether a married daughter of one of the deceased owners was entitled to inherit the land under Embu customary law. It was held at the Court of Appeal that the woman was not entitled to the land under the relevant customary law, and further that that customary law was not repugnant to justice or morality. It was stated that where a custom is proved, the court has to be satisfied, by virtue of section 3(2) of the Judicature Act that the same was not repugnant to justice or morality.

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KWACH JA: Finally, there is section 3(2) of the Judicature Act (Chapter 8) which provides: ‘3(2) The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in all civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantive justice without undue regarded to technicalities of procedure and without undue delay.’

The former Court of Appeal for East Africa in the case of Kimani v Gikanga [1965] EA 735 held that where African customary law is neither notorious nor documented it must be established for the court’s guidance by the party intending to rely on it and also that as a matter of practice and convenience in civil cases the relevant customary law, if it is incapable of being judicially noticed, should be proved by evidence of expert opinions adduced by the parties. The relevant Embu customary law that the appellant is challenging is that a married woman cannot inherit her father’s land. There is no dispute over the fact that the customs and traditions of the Embu tribe are similar to those of the Kikuyu.

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On the right to inheritance by daughters, the late President Jomo Kenyatta in his book, Facing Mount Kenya, says (at page 29): ‘After some time the family began to increase. Let us imagine that each wife had three sons and perhaps some daughters. But as female children do not take part in ownership of land, we will leave them out, because, having no system of spinsterhood in the Gikuyu Society, women do not inherit land on their father’s side; they play their part in the family or clan in which they marry.’

Cotran in his Restatement of African Law:Volume 2 says (at page 8): ‘Inheritance under Kikuyu law is patrilineal. The pattern of inheritance is based on the equal distribution of a man’s property among his sons, subject to the proviso that the eldest son may get a slightly larger share. Daughters are normally excluded, but may also receive a share if they remain unmarried. In the absence of sons, the heirs are the nearest patrilineal relatives of the deceased, namely father, full brothers, half-brothers, and paternal uncles.’

Under Embu customary law, the appellant would have been entitled to inherit some land from her father if she was unmarried. This may explain why she asserted so vigorously that she was divorced from Gatimu…The custom having been established, it was never suggested that it was repugnant to justice or morality so that it should not apply. There is a purpose for every custom. The Embu custom of inheritance ensures that the land remains in the family. That is in my view a good enough reason for upholding it. I would like to echo the remarks made by Nyarangi JA in the course of his judgement in the case of Sheikh Mushtaq Hassan v Nathan Mwangi Kamau (1986) 1 KAR 946 when he had this to say in relation to customs (at 954): ‘I would say a judge should be very slow to criticise any particular custom of people. There always is a purpose for the practice of a custom. Human beings do not partake for too long in customs which are not beneficial to them. If a judge is required to apply a custom, it is often safe to summon to his assistance one or more competent assessors from the tribe or community of the parties to the action… before making critical comments on a custom. It is clear from the relevant part of his judgement that the trial judge does not fully understand the substance and application of the material custom.’

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HANCOX CJ (dissenting) The starting point in considering any appeal in which one or other of the parties advances customary law in support of his case is section 3(2) of the Judicature Act, Chapter 8, which provides: ‘The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities and without undue delay.’

The predecessor of section 3(2) was regulation 4 of the Kenya (Jurisdiction of Courts and Pending Proceedings Regulations) 1963 which came into question in Kimani v Gikanga [1965] EA 735… Duffus JA said (at 738): ‘The parties in this case are Africans and therefore this court will take judicial notice of such African customary laws as may be applicable but subject to the provisions of regulation 4… The difficulty remains how are these customary laws to be established as facts before the courts? In some cases the court will be able to take judicial notice of these customs without further proof as for instances in cases where the particular customary law has been

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the subject of a previous judicial decision or where the customary law is set out in a book or document of reference as provided in subsection (2) above, but usually in the High Court or in a Magistrate’s Court, the relevant customary law will, as a matter of practice and of convenience, have to be proved by witnesses called by the party relying on that particular customary law in support of his case.’

This proposition is more succinctly put by Newbold VP later in the report (at 743): ‘When it is alleged that by any particular African customary law a result follows different from that which would follow under the ordinary Law of Kenya, then the existence of that African customary law has, unless it has become of such notoriety that judicial notice may be taken of it under section 60 of the Evidence Act, 1963… to be proved by the person invoking it in precisely the same way that a person invoking customary law rights has to prove the custom. In proving such African customary law opinion evidence is admissible under section 51 of the Evidence Act, 1963, and in accordance with section 60(2) of that Act, it may also be proved by the production of a book or document. Once proved, the courts must be guided by it in accordance with regulation 4 of the Kenya (Jurisdiction of Courts and Pending Proceedings) Regulations, 1963.’

So in that decision, by two of the most authoritative judges of this court’s predecessor, the means of proving customary law and the consequences which flow from doing so are made absolutely clear; first, customary law is a matter of fact, secondly if it is of wide notoriety the custom may be judicially noticed… Thirdly, if it is not judicially noticeable, the custom may be proved by the testimony of witnesses and/or by reference to a textbook of reference. Fourthly, the courts are to be guided by African customary law where one party is subject to it, so far as it is not repugnant to justice or morality.

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…In the recent decision in Kivuitu v Kivuitu (1991) 2 KAR 241 this court clearly held that a wife was entitled to one-half of the matrimonial home (notwithstanding that her strictly financial contribution may not have matched that of her husband) and not merely one-quarter, as the judge had found. In that case Gachuhi JA said (at 242): ‘The time when an African woman was presumed to own nothing and all what she owned belonged to her husband and was regarded as a chattel of her husband has long gone.Women are now honourably employed in highly salaried posts and occupy high positions equal to men both in government and in the private sector. They own businesses and properties individually or in partnership and have shares in companies. There is no position that a man can hold which cannot be held by a woman.The situation has changed and so have customs.’

True, that was a matrimonial case and a dispute between spouses under section 17 of the Married Women’s Property Act, but the changed status of women generally was recognised by Masime JA who said (at 243-244): ‘Most of the Kenya African communities are patrilineal and the matrimonial home is usually settled by the husband. Consequently, upon divorce it is usual for the wife to leave that home and in the process the wife will usually take away only her self-acquired personal property; any property which belongs to the matrimonial home and landed property invariably remain with the husband…Today, however, as a result of increased opportunity for education, employment and entrepreneurship, the money sector is no longer the man’s domain. And even where only the husband is in the income earning sector the wife is not relegated to total dependence on him without an ability to make some reasonable contribution towards economic management of their household and the upbringing of their family. It is no longer right to assume, as was done under customary law, that the wife was totally dependent on

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the husband and not capable of contributing at all or substantially to the development of the household and increase in the family wealth.’

In my view the judges who were making those pronouncements, albeit in a divorce suit, recognised the changed status of women generally and, basing myself on those observations, which I regard as of general application, and on my own view of the section, I would hold that a custom which is discriminatory in its effect, so as to bar women from inheritance, is repugnant to ordinary notions of justice and this court should not be guided by it In the Matter of the Estate of Humphrey Edward Githuru Kamuyu (deceased) Nairobi High Court Probate and Administration number 2322 of 1995 (Visram J) (Kikuyu customary law allows a parent to deviate by will from the customary rules of intestacy and disinherit an heir where the heir has been cruel to the parent).

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CASE NO. 10

A son excluded from the will of his deceased father moved the court under section 26 of the Law of Succession Act, asking the court to make provision for him out of the estate of the deceased. The court, in exercising its discretion under section 26, sought the guidance of Kikuyu customary law to find that the father was justified in excluding the son from benefit on account of the son’s ill-treatment of the father, and in the circumstances there was no need for the court to make provision for him.

VISRAM J:The relationship between him and the deceased was less than cordial. In his will, the deceased has made reference to the disrespect with which he was treated by the applicant. The deceased had in fact written to Kikuyu Police Station seeking police protection from the applicant and two other errant sons in a letter dated 19 April 1989. The three sons…had also written to the Bank Manager of Barclays Bank, Queensway House, Nairobi, on 10 March 1987 asking that their father be prevented from drawing funds from his own account. The three had further asked the Land Registrar to prevent their father from dealing with his land parcels…in a letter dared 30 March 1994.This is evidence that those sons, including the applicant, were at crosspurposes with the Deceased… From the material before the court it is not hard to see why the deceased excluded the applicant in his will. Eugene Cotran in his book Restatement of African Law (volume II) writing on the power to deviate by will from the Kikuyu customary rules of intestacy at page 16, states that an heir may be disinherited if he is cruel to his parents, e.g. he beats them and is constantly disobedient, among other reasons.

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John Gitata Mwangi and others v Jonathan Njuguna Mwangi and others Nairobi Court of Appeal civil appeal number 213 of 1997 (Akiwumi, Shah and Bosire, JJA) (Section 3(2) of the Judicature Act does not give unassailable status to customary law to the extent that customary law may be regarded as relevant to any issue arising under the provisions of the Law of Succession Act, and where a provision of the Law of Succession Act has allowed the application of customary law such application is limited to the special circumstances of that provision).

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CASE NO. 11

The deceased died testate, leaving his estate to his wife and children from both his marriages. He appointed the children of his first wife the executors of his estate. There was no dispute as to the validity of the will, but the children of the second house were unhappy that the deceased apparently gave the children of the first house a share in the estate that was slightly larger than what the second house got. They brought an application under section 26 of the Law of Succession Act asking the court to give reasonable provision for them. The High Court ruled in their favour, and, apparently guided by customary law, held that the provisions made to the houses ought to have been equal. The court then proceeded to redistribute the estate in order to achieve such equality. The other house appealed. In a majority judgement, the Court of Appeal differed with the High Court and held that customary law was of no application at all. The deceased enjoyed freedom of testator, and this freedom could only be interfered with by the court where there was evidence of unreasonable provision.The court found that the children of the second house got reasonable provision under the will, and they appeared to be complaining that the distribution of the estate was not equal. The court was also of the view that there existed good grounds for deceased giving a relatively smaller share of the estate to members of the second house.

AKIWUMI JA: I had earlier made reference to the provisions of section 33 of the Act which specifically provides that in certain circumstances in the case of intestacy, the law or custom applicable to the deceased’s community or tribe shall apply. No provisions like that which could have been made to apply to sections 26 to 29 of the Act. Indeed, this omission in the Act is a clear indication that so far as the provisions of these sections of the Act are concerned, they are to be interpreted without being subject to the law and custom of the deceased. True the Judicature Act provides in section 3(2) thereof that:

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‘The High Court, the Court of Appeal and all subordinate courts shall be guided by African Customary Law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not inconsistent with any written law, and shall decide all such cases according to substantive justice without undue regard to technicalities of procedure and without undue delay.’

But sections 26 to 29 of the Act as they stand, make the relevant Kikuyu customary law, inconsistent with them. I would also like to allude to my judgement in the case of Mary Wambui Kabungua, Legal Representative of Kabugu v Kenya Bus Service Limited, civil appeal number 195 of 1995 (unreported) which dealt with the status of the written law vis-a-vis the common law, and which I find analogous to the status of the written law in this case the Law of Succession Act vis a vis Kikuyu customary law with respect to the application made by the dependants under section 26 of the Act. This is what I had to say: ‘My last comment relates to the relationship between the common law and the Limitation Act. Salmon, JA in his dissenting judgement in Cozens, expressed the view that only very clear words which did not exist in the English Limitation Act 1963, could take away a person’s fundamental rights, in the following way:

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‘I start from the point that the general rule of the law is that the courts will not make orders in legal proceedings affecting a party’s rights without giving that party an opportunity of being heard…To my mind very clear words would be required to take away fundamental rights which are ordinarily accorded by the law and indeed by natural justice.’

What is clear from this observation of Salmon, LJ, is the admission that statute can take away or limit fundamental rights or those given by the general law which can be described as the common law. It cannot therefore, be said that the common law has an unassailable status. If this is so, even where statute law and the common law are held to be of equal standing, then a fortiori, on the assumption that in Kenya, the common law is of a lower standing than statute law, statute law can make greater inroads into the common law. Although no very clear words to that effect, were employed in the English Limitation Act, it was held in Cozens that the clear intention apparent in the Act, and which would do, made inroads into the common law or the general rule of law, by providing in sections 1 and 2, an exception to the general rule that a party against whom an ex parte order has been made, can apply to the court which made the order to set it aside.’ To my mind, and having regard to the clear intention of section 26 – 29 (sic) of the Law of Succession Act as shown when compared with the provisions of section 33 of that Act, it cannot be said that section 3(2) of the Judicature Act grants unassailable status to Kikuyu customary law that may be regarded as relevant to the issues involved in this appeal. And so what may not be considered per se in the present case where there is a valid will of Mwangi Mbothu, is the Kikuyu customary law or practices concerning the fair or equal share of a deceased husband’s property among the houses of his polygamous marriages. Indeed, if this was not what the law was intended to be expressed in the Report of the Commission on the Law of Succession, there was nothing to stop Part III of the Law of Succession Act from stating this. As this part of the Act stands, there was, no matter what the Report of the Commission had expressed, a clear intention

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not to incorporate it into the Act. Nothing would have been easier to achieve if Parliament had wanted to do this. BOSIRE JA (dissenting) I earlier attempted to set out the parameters of the phrase reasonable provision. I said, inter alia, that the circumstances of each case must be borne in mind in discerning what would or would not be considered as reasonable provision.The Act is an attempt to codify generally the Law of Succession of Kenya. It cannot therefore, be applied without qualifications as the circumstances render necessary, more so in cases which involve the various tribes in this country. As I stated earlier paragraph 28(g) of the Act, was included to accommodate the disparities in the cultural backgrounds of the various tribes and their customs and traditions. My view has support of the provisions of section 3(2) of the Judicature Act, Chapter 8 Laws of Kenya, which provides as follows: ‘The High Court, the Court of Appeal and all subordinate courts shall be guided by African Customary Law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantive justice without undue regard to technicalities of procedure and without undue delay.’

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What the above provision entails is that customary laws may be invoked in certain cases as a guide in determining certain issues in a given civil case provided that it is not repugnant to justice, morality or inconsistent with any written law and also bearing in mind the overriding consideration, namely, doing substantial justice between the parties. Neither the trial judge nor counsel for the parties made any specific mention of that wise provision. Wise, because currently most communities in Kenya are still very much attached to their personal laws, customs and traditions, which, to my mind, have many principles of manifest justice and good sense. The application of those principles has been left to the judicial discretion of the courts, and which discretion is limited only by the factors mentioned in section 3(2) aforesaid.The learned trial Judge appears to have had those principles in mind when he remarked, in his judgement, as follows: ‘Section 26 of the Act as I have attempted to show has its distinct identity and has incorporated the African way of life it would be against the policy of the Act to look behind it.The Kikuyu Customary Law can of course be introduced (see rule 64 of the Probate and Administration Rules) but not when the intention is to defeat the provisions of the Statute Law.’

The sanction to be guided by African Customary Law is not in rule 64, aforesaid, but section 3(2) of the Judicature Act, aforesaid, and section 28 of the Law of Succession Act, more specifically section 28(g). In the foregoing circumstances, contrary to the submissions made to us by Mr OP Nagpal who with Messrs Kirumba Mwaura, and Githu Muigai, appeared for the appellants, personal laws and customary practices in as far as they are relevant have a bearing in determining the issue of reasonable provision, unless of course they are disqualified on account of repugnancy.

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In the Matter of the Estate of Sila Kibiwott Rono Eldoret High Court probate and administration number 130 of 2000 (Nambuye J)

CASE NO. 12

(Where the deceased is a Nandi by tribe, his estate is subject to Nandi customary law, and the same is to be distributed in accordance with Nandi customary law, guided by Section 28 of the Law of Succession Act). The deceased, a Nandi from Uasin Gishu District, died intestate in 2000.The court was called upon to settle the issue of distribution of his estate. In making its orders on distribution, the court applied Nandi customary law and section 28 of the Law of Succession Act.

NAMBUYE J: The deceased was a Nandi by tribe and so his estate is subject to Nandi customary law.5 From the evidence under Nandi customary law the estate is to be shared equally between the wives irrespective of the number of children in each house. See also Restatement of African Law by Eugene Cotran Volume 2 page 120 paragraph 2.

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However this court is aware that customary law is subject to statutory law. The provisions of section 28 of the Law of Succession Act Chapter 160 Laws of Kenya cannot be ignored. The guiding principles that this court has to consider are:

5

6

1.

The nature and amount of the deceased’s property.

2.

Any past present or future capital or income from any source of the dependant.

3.

The existing and future means and needs of the dependent (sic).

4.

Whether the deceased had made any advancement or other gift to the dependant during his lifetime.

5.

The conduct of the dependant in relation to the deceased.

6.

The situation and circumstances of the deceased’s other dependant so far as can be ascertained, the testators reasons for not making provisions for the dependant.6

The deceased died in 2000, which is after the Law of Succession Act came into force. Nandi customary law was of no application to his estate by virtue of Section 2(1) as read with sections 32 and 33 of the Law of Succession Act. His estate fell for distribution in terms of Part V of the Law of Succession Act. With respect, section 28 of the Law of Succession Act was wholly irrelevant to the dispute before the court. The matter at hand was the distribution of the estate of an intestate; which fell within Part V of the Law of Succession Act, and the estate should have been dealt with in terms of section 40 of the Law of Succession Act. Section 28 is in Part III of the Law of Succession Act, which covers applications for reasonable provision. Section 28 sets out the matters that the court should consider when confronted with an application brought under Section 26 in Part III of the Act. There was no such application in the matter before the court, and the issue of reasonable provision did not arise; therefore there was no basis at all for the application of Section 28 to the situation at hand. The court should have distributed the estate in accordance with the mandatory requirement of Part V of the Law Succession Act on intestacy.

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Arusei, In re [2003] KLR 76 (Nambuye J)

CASE NO. 13

(In considering the distribution of the estate of an intestate the court is to be guided by customary law and the provisions of the Law of Succession Act). The proceedings concerned the estate of a Nandi, from Uasin Gishu district, who died intestate in 1997. The matter before the court was on distribution of his estate. The court made orders on distribution, apparently, based on both customary law and section 28 of the Law of Succession Act.7

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NAMBUYE J: It is on record and it has featured prominently that according to Nandi customary law the estate is to be shared equally among the houses…The observation of the court is that in as much as customs should not be ignored when considering distribution herein this court cannot overlook the provision (sic) of the Act – Succession Act. Chapter 160 Laws of Kenya. Section 288 of the said Act enjoins the court to consider the following … 1.

The nature and amount of the deceased’s property.

2.

Any past present or future capital or income from any of the source (sic) of the dependent (sic).

3.

The existing and future and needs of the dependent (sic).

4.

Whether the deceased had made any advancement or other gift to the dependent (sic) during his lifetime.

5.

The conduct of the dependent (sic) in relation to the deceased.

6.

The situation and circumstances of the deceased’s other dependents (sic) and beneficiaries under any will.

7.

The general circumstances of the case including so far as can be ascertained the testators reason for not making provision for the dependant.

***

7 8

It is not really clear the law that the court applied in the determination of the matter. All there is a reference to Nandi customary law and Section 28 of the Succession Act. Section 28 of the Law of Succession Act, that is if the reference to Succession Act means the Law of Succession Act, is of no application to the circumstances that were before court. The dispute turned on the distribution of a polygamous intestate’s estate, and the matter fell for determination in terms of Part V of the Law of Succession Act. Section 28 is in Part III of the Law of Succession Act, which governs applications for reasonable provision. In this matter there was no such application for reasonable provision, therefore there was no basis at all for the court to apply Section 28 to facts of the case.

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2.4 AFRICAN CUSTOMARY LAW, THE REPUGNANCY CLAUSE AND SUCCESSION MATTERS By virtue of section 3(2) of the Judicature Act, where customary law operates, it would apply to the extent that it is not repugnant to justice and morality, and the courts have power to strike down any custom found to offend this provision. The section states that African customary law applies: - ‘so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law.’ Cases numbers 9, 13, 14, 15 and 16 illustrate the application of section 3(2) of the Judicature Act in succession causes where customs are subjected to test on account of repugnancy. One sticky point is whether the court can strike down a law founded on custom on the ground of repugnancy, taking into account the constitutional provisions which allow the application of personal laws notwithstanding the fact that they are discriminatory. Cases numbers 6, 14, 15, 16 and 17 discuss the constitutional provisions allowing the application of the discriminatory personal laws. The court in cases numbers 6, 14, 16 and 17 appears to take the view that a custom cannot possibly be repugnant to justice or morality so long as the constitutional provisions sanction it. In case number 15 the court holds that the court can strike down a custom for repugnancy given that the constitutional provision allowing the application of discriminatory personal laws has been somewhat superseded by the subsequent amendment of the Constitution to outlaw discrimination on grounds of one’s gender. Kamete Ene Ateti Marine v Mosupai ole Ateti Nairobi High Court civil appeal number 224 of 1995 (Amin J) CASE NO. 14

(Customary law should not be treated lightly, so as to easily declare it repugnant to justice and morality, since it refects the values of a given community).

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The facts were not given in the judgement. AMIN J: The learned trial magistrate in my view was in error to hold that the ‘Masai customary law is repugnant to justice and morality.’ These are time tested customs and traditions which are based on wisdom and experience and are not to be brushed aside lightly however, tempting it might be to do so unless it is done so for sound reasons which are deliberated and determined upon judicially. The English common law likewise in fact and in deed is a form of customary law, based on precedent.

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In Re Estate of Lerionka ole Ntutu (Deceased) [2008] eKLR (Rawal J) (Customary law which allows differential distribution of land is discriminatory and thereby repugnant to justice and morality)

CASE NO. 15

The daughters of the deceased intestate objected to the distribution of his estate in a manner which did not take them into account. Their brothers took the view that customary law applied to the estate by virtue of sections 32 and 33 of the Law of Succession Act. The daughters countered that that law was repugnant to justice and morality since it discriminated against daughters. The sons replied that the Constitution allows such discrimination on personal law matters such as succession.The court held that if customary law applied the same was repugnant to justice and morality, and relied on parallel provisions in the Constitution, which provide for non-discrimination based on ‘sex,’ and also various international conventions and treaties, which Kenya has ratified. The court was also of the view that sections 32 and 33 of the Act did not apply to the property in question since the same was not agricultural land as envisaged in the Act, but registered land.

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RAWAL J: Thus the issue before me is whether the applicable law in respect of the estate herein, so far as the daughters of the deceased are concerned, is Masai customary law or Law of Succession Act (Chapter160) hereinafter referred to as ‘the Act.’ It cannot be disputed that as per the provisions of the Act, the children include sons and daughters and the Act does not discriminate between male and female children of the deceased. It is now well established under our jurisprudence that there cannot be discrimination also between the married and unmarried daughters. It is evident that as per all customary laws, the married daughters were not entitled to inherit the estate of their deceased father. I must mention that most of the customary laws (predominantly Kikuyu customary law), recognized an unmarried daughter as a son and allowed her equal rights along her brothers to inherit. This is the background of our custom and social values, which at the prevalent period of time was probably socially just. With the advent of the Act, the aforesaid differential treatment between the married and unmarried daughters is also abolished. In my considered view, the Act as a whole has not discriminated between the male and female children and I have not been shown that the Commissioners while drafting the Act had this differentiation in their mind and hence section 2(2) and section 29(a) of the Act. It stipulates:

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‘2(2) The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.’ ’29

For the purposes of this part, ‘dependant’ means: (a)

The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death.’

Mr Kilukumi, the learned counsel for the executor submitted that the Commission headed by Cotran J, which drafted the Act, had observed and thereupon recommended to exempt certain areas of our country from the operation of the provisions of the Act. Their reason for such exemption is captured in paragraphs 72 to 74 of their report. They have definitely stated however, that the Act should apply universally to those assets like registered lands, stocks and shares, motor cars, etc. They opined that there are certain people of the country who ‘are not ready for or not willing to accept a new law and they will certainly ignore it.’ But on the heels of the above statement they have said i.e: ‘on the other hand a total exclusion in an area might possibility result in hardship to the heirs of those few people in the area who may have modern types of property for which the customary law does not cater, such as the successful businessman in a small township.’

In an attempt to compromise with these two situations, sections 32 and 33 of the Act were recommended and enacted, to viz: ’32.

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33.

the provisions of this part shall not apply to: (a)

Agricultural land and crops thereon; or

(b)

Livestock, situated in such areas as the Minister may, by notice in the Gazette, specify.

The law applicable to the distribution on intestacy of the categories of property specified in section 32 shall be the law or custom applicable to the deceased’s community or tribe, as the case may be.’

By Legal Notice number 94 of 1981, gazetted on 23 June 1981 the Minister specified various districts in which those provisions are not applicable, and the list therein does include Narok District wherein the deceased was a resident and his estate is situate. Thus it cannot be dispute that sections 32 and 33 of the Act applies to the district and land situate thereon. Mr Kilukumi reluctantly relied on the case of Mwathi v Mwathi and another [199598] 1 EA 229, wherein the Court of Appeal held that the Kikuyu customary law applied to the estate and the married daughters cannot inherit the estate of a Kikuyu father. I have carefully perused the said authority and do note that the deceased in that case died after the case came into operation. That pertinent fact was not considered by the court. Moreover the said judgment omitted to take into consideration very relevant provisions of law stipulated in section 2(1) of the Act: namely:

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‘except as otherwise provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estate of deceased persons dying after the commencement of the this Act and to the administration of estates of those persons.’

In the absence of the consideration by the Court of Appeal of the aforesaid legal provision, which ought to have been applied to the estate of the deceased, as well as in absence of any evidence that the provisions of section 32 of the Act did not apply to the estate. I would, with utmost humility and respect, deny to accept the finding made in the said case. In any event and in alternative, I would find that the facts of the said case are different than those of this case. I may add, that I used the word ‘reluctantly’ advisedly when I stated that Mr Kilukumi so cited the authority, as in his view also the said authority cannot be applied to the present case. I shall make similar observation as regards the decision of John Kinuthia Githinji v Githua Kiarie and others (unreported) civil appeal number 99 of 1988. It cannot be gainsaid that the Court of Appeal since those two cases have made decisions which contradict the findings made in the aforesaid two cases and which are progressive and can rightly be considered as benchmark ones. I shall cite the case of Mary Rono v Jane Rono and William Rono civil appeal number 66 of 2002. The Court of Appeal held in that case. ‘The manner in which courts apply the law in this country is spelt out in section 3 of the Judicature Act Chapter 8, Laws of Kenya. The application of African customary laws takes pride of place (sic) in section 3(2) but it is circumscribed thus:

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‘…so far as it is applicable and is not repugnant to justice and morality or inconsistent with nay written law…’

Basing its support on this provision of the Judicature Act, the court went ahead and applied international law, international covenants and treaties in the judgment which are ratified by Kenya. It relied mainly on (a) Declaration of Human Rights (1948), (b) the Covenant on Economic, Social and Cultural Rights (c) Covenant on Civil and Political Rights and (d) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The cited article 1 of CEDAW, stipulates”: ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social,cultural, civil or any other field.’

The court went further and cited with approval the African Charter of Human and People’s Rights otherwise known as the Banjul Charter (1981) and ratified by Kenya in 1992 without reservation. Article 18 thereof was cited: namely: ‘…Ensure the elimination of any discrimination of rights of woman and the child as stipulated in international declaration and covenants.’

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The court cited the principle 7 of the Bangalore Principles of the Domestic Application of International Human Rights Norms, to get support to apply the international covenants and treaties, which states: ‘It is within the proper nature of the judicial process and well established functions of national courts to have regard to international obligations which a country undertakes – whether or not they have been incorporated into domestic law – for the purpose of removing ambiguity or uncertainty from national constitution – legislation of the common law.’

However, the Court of Appeal in Rono’s case (supra) did not have to deal with the issue of conformity between section 82(3) and 82(4) of the Constitution, vis-à-vis section 32 and 33 of the Act. Section 82(1) of the Constitution prohibits the enactment of any laws which are discriminatory. Section 82(3) defines discrimination as under: ‘82(3) in this section the expression ‘discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.’

Mr Kilukumi while agreeing on the principle and spirit of the non-discrimination enshrined in the Constitution, emphasized on the provisions of section 82(4) which according to him protects or approves the laws as regards devolution of property on death or any other matters of personal law.

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I do note that the said proposition seemingly makes that exception. But if one goes to the history of the amendment in section 82(3) which included the words ‘or sex,’ in my view the spirit of Constitution cannot be perceived to be one as has been submitted by Mr Kilukumi. Kenya has ratified all the international covenants and treaties before the said amendment was made in the constitution. Section 82(a) of the Constitution was enacted along with the original provision of section 82(3) which did not include discrimination on the ground of sex, and after the passage of several treaties and covenants and their ratification, it was found necessary to make the amendment to include the prohibition of discrimination on the basis of sex. In the circumstances, one can safely presume that the said amendment was found to be necessary after Kenya was exposed to international laws. Hence Kenya knowingly and rightly took a bold step to eliminate the discrimination of all manners and types against women. That is where the country’s aspiration has reached and has rightfully intended to stay. Other courts in the country and the world have taken great leaps in the jurisprudence of interpretation of the laws and Constitution. The courts have strived to enlarge the scope and meaning of laws and Constitution as to be in tandem with the growing social, economic and cultural aspirations. The courts have left far behind the restrictive approach to the interpretation of the Constitution propagated in El-Mann’s case [1969] EA 357).

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In my considered view, the courts should not be any more following the old school of thought articulated by Sir Francis Bacon who said that ‘Judges should be like lions, but yet lions who sit at the feet of the throne.’ Constitution of any country of the world should not represent a mere body or skeleton without a soul or spirit of its own. I would not like to discard as the Court of Appeal did in R M and another v AG eKLR even after taking a strict interpretation, the possibility of the court adopting broader view or using the living tree principle of the interpretation of Constitution where they are ‘amongst others., ambiguity, unreasonableness, obvious imbalance or lack of proportionality or absurd situation.’ Thus in my opinion, the provisions of section 82(4)(b) of the Constitution was not and cannot have been made so as to deprive any person of their social or legal right only on the basis of the sex. Finding otherwise would be derogatory to human dignity and equality amongst sex universally applied. I shall add that taking the view otherwise shall definitely create imbalance and absurd situation. I shall, without reservation, find that even if the provisions of section 32 do apply to Uasin Gishu area and even if Masai customary law would be applicable to the estate, the customary law which shall abrogate the right of daughters to inherit the estate of a father cannot be applicable as it shall be repugnant to justice and morality. (Section 3(2) of the Judicature Act). Even if I am wrong in finding what I have found, which in my view I am not, I agree with the submissions made by all the learned counsel of the objector daughters, that the asset of the estate, on which they have lodged their claim is not covered under section 32 of the Act as the same is not agricultural land and is a registered land which is excluded as per the report of the Cotran Commission. Thus, I do find that the objector daughters are entitled to inherit from the asset of the estate known as LR Narok/Cismara/Ochora/24. ***

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2.5 THE CONSTITUTION

AND THE

REPUGNANCY CLAUSE

The Constitution allows the application of African customary law with respect to personal matters, even where the customary law is discriminatory. Cases numbers 6, 15, 16 and 17 analyse the constitutional provisions and indicate the extent to which they would apply to the particular circumstances of the parties.The relevant provisions of section 82 of the Constitution are set out in Case number 16.

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Mukindia Kimuru and another v Margaret Kanario Nyeri Court of Appeal civil appeal number 19 of 1999 (Gicheru, Shah and Owuor, JJA) (The Constitution of Kenya allows limited discrimination in personal matters, including inheritance). CASE NO. 16

The deceased was the adoptive mother of the respondent, while the appellants were the adoptive father and his son, respectively. When the adoptive mother died in 1979, a dispute arose between the respondent and the appellants over the respondent’s right to inherit land belonging to the deceased. The Court of Appeal held that under the relevant customary law an unmarried daughter was not entitled to inherit her parents’ estate, and that such discriminatory laws are permitted by the Constitution of Kenya.

SHAH JA: The Kimeru Customary Law recognises the patrilineal system for inheritance of land. Women do not inherit land on their father’s side: they play their part in the family or clan in which they marry…I have set out the position as regards inheritance of land by daughters. Generally they cannot inherit land. Such customary law sounds discriminatory but the Constitution of Kenya permits such limited discrimination. Section 82(1) of the Constitution provides as follows: ‘82(1) – Subject to subsection (4), (5) and (8), no law shall make any provision that is discriminatory either of itself or in its effect.’

Subsection (4) of Section 82 of the Constitution provides:

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‘(4) Subsection (1) shall not apply in any law so far as that law makes provision: (a)

…

(b)

With respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law.

(c)

For the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons.’

As I read and understand the above-mentioned subsections of section 82 of the Constitution I am bound to say and I do say that exclusion of daughters from inheritance of land is ‘sanctioned’ by the Constitution when a court is applying customary law in regard to devolution of property on death of the owner of that property. Case number 17 discusses section 2(3) (4) of the Law of Succession as well as section 82 of Constitution ***

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2.6

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THE

APPLICATION

OF ISLAMIC

W Musyoka

LAW

Section 2(3) of the Law of Succession Act disapplies the substantive provisions of the Act to estates of persons who at the time of their death are Muslims and applies Islamic law to such estates, and section 2(4) of the Act applies the procedural provisions of the Law of Succession Act, on administration of estates, to such estates. The provisions state as follows: ‘2(3) Subject to subsection (4), the provision (sic) of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of this death is a Muslim to the intent that in lieu of such provisions the devolution of the estate of any such person shall be governed by Muslim law. 2(4)

Notwithstanding the provisions of subsection (3), the provisions of Part VII relating to administration of estates shall where they are not inconsistent with those of Muslim law apply in case of every Muslim dying before, on or after the 1 July 1991.’

Chelang’a v Juma [2002] 1 KLR 339, (Etyang J) (Under section 2(3) of the Law of Succession Act, the Act does not apply to the estate of a Muslim, instead Islamic law applies; however, section 2(4) applies Part VII of Law of Succession Act to such estates. A person, particularly a nonMuslim, cannot be heard to say that the application of Islamic law governing intestate succession of a deceased Muslim’s estate is discriminatory against them since section 82(2) of the Constitution allows such discrimination).

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CASE NO. 17

The widow of the deceased, a Muslim, obtained representation to the estate of her deceased husband, a Muslim; and in her petition for grant of letters she did not name the mother and two illegitimate daughters of the deceased, who were all Christians, as heirs. The mother, on her own behalf and that of the illegitimate Christian daughters of the deceased sought to have the grant revoked and also to have the daughters and herself recognized as heirs. It was held that by virtue of section 2(3)(4) of the Law of Succession Act, the intestate and testamentary provisions of the Law of Succession Act do not apply to the estate of a Muslim, instead devolution of such an estate is governed by Islamic law. It was further held that the daughters could not argue that the application of Islamic law to the estate of the deceased was discriminatory against them since the Constitution sanctions such discrimination.

ETYANG J: The provisions of the Law of Succession Act Chapter 160 Laws of Kenya do not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim. In lieu of those statutory provisions, the devolution

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of the estate of any such person has to be governed by Muslim Law. The provisions of Part VII of the Law of Succession Act relating to the administration of estates shall, where they are not inconsistent with those of Muslim Law, apply to every Muslim dying before, on or after the 1 January 1991. These are the statutory provisions of section 2(3) and (4) of the Law of Succession Act enacted vide Act number 21 of 1999. Applying these principles to this cause, the deceased was a person who professed the religion of Islam, accepted the Unity of God and Mohammed as his prophet. The deceased was a Muslim; his personal law was Muslim Law for purposes of intestate succession of his estate. Under Islamic Law no non-Muslim is permitted to inherit the estate of a Muslim. This was ably verified in this court by the Kadhi of Nairobi Mr Hammat Mohammed Kassim. It follows therefore that Chebet, who conceded that she is a Catholic, cannot inherit a share of the estate of her deceased father, a Muslim, by reason of her being a non-Muslim. Secondly, an illegitimate child does not inherit the estate of his or her father but is permitted to inherit from his or her mother. The reason for this can be found in The Principles of Mohammedan Law by Dr (Mrs) Nishi Patel 1995 Cts Publication Chapter XIII at page 251: ‘THE LAW OF PARENTAGE: INTRODUCTION The Law of parentage which includes paternity and maternity is the result of the institution of marriage. A Mohammedan marriage is a contract, which confers the status of husband and wife on the parties and of legitimacy on the children. Parentage gives rise to the concepts of legitimacy and illegitimacy. Illegitimacy is totally untolerated and sexual relations outside marriage are condemned as illicit and the woman, who involved in it, is punishable for Zina (fornication).’

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It must then follow that; both Chebet and Nuru who are illegitimate children are not entitled to a share of the deceased’s estate. A supplementary issue is where Chebet and Nuru, who clearly the deceased was caring for during his lifetime, can inherit his estate as dependants. On this point the Kadhi of Nairobi Mr Hammat Mohamed Kassim stated as follows: ‘Children who may have been supported by the deceased are still excluded because that alone (the deceased’s support) is not enough unless the deceased wrote out an acceptable will to include them.’

I find favour with that testimony and I so hold that both Chebet and Nuru, as the deceased’s dependants, are excluded from his estate and are not entitled to a share of the same by reason of the application of the principles of Islamic law. I would have been prepared to hold that the provisions of section 82(1) and 82(4) (6) of the Constitution of Kenya, apply in the case of Chebet and Nuru. These provisions are: ‘Section 82(1) subject to subsections (4), (5) and (8), no law shall make any provision that is discriminatory either of itself or in its effect. (4)

Subsection (1) shall not apply to any law so far as that law makes provision:

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(c)

W Musyoka

With respect to adoption, marriage, divorce, burial, devolution of property upon death or other matter of personal law.’

This means, with particular reference to this case, that Chebet and Nuru cannot be heard to say that the application of the personal law governing intestate succession of the deceased’s estate, which is Islamic law, is discriminatory against them and is inconsistent with the Constitution. It is my ruling that the application of Islamic law, embodied in section 2(3) and (4) of the Law of Succession Act, is not inconsistent with the provisions of the Constitution of Kenya. I have, in so holding, answered the petitioners issue number 3 as to whether, under section 3(2) of the Law of Succession Act, both Chebet and Nuru are the deceased’s children who are entitled to inherit his estate, whether or not the deceased had expressly recognized, accepted them and had voluntarily assumed permanent responsibility over them. …I have read the objector’s submissions filed by Miss Margaret Ndwiga where she concedes that Kiprotich and Hadija being Christians cannot inherit the estate of a Muslim (the deceased). This is in keeping with Islamic law practices and I accept it. ***

2.7 THE APPLICATION

OF

FOREIGN LAW

Section 4(1)(b) of the Law of Succession Act applies foreign law to the movable estate of an alien intestate whose domicile is not Kenya, but, by virtue of section 4(1) (a), property regardless of the domicile of the deceased. Section 4(1) provides:

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‘Except as otherwise expressly provided in this Act or by any other written law: (a)

Succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, whatever the domicil of that person at the time of his death;

(b)

Succession to the movable property of a deceased person shall be regulated by the law of the country of the domicil of that person at the time of his death.

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In Re Estate of Naftali (deceased) [2002] 2 KLR 684 (Waki J) (The movable property of an intestate is governed by the law of the domicile of the deceased at the time of death) CASE NO. 18

The deceased died in Kenya, but his domicile was in either Congo or Rwanda. A grant intestate was obtained in Kenya over movable property situate at Mombasa. On a subsequent application for revocation of the grant, it was held that under section 4(1)(b) of the Law of Succession Act succession to the movable property of a deceased person is to be regulated by the law of the domicile of the deceased at the time of death, and grant of letters intestate by a Kenyan Court over movable property of such an intestate is not valid, and should be revoked.

WAKI J: The basic issue is to decide whether the grant should have been applied for and granted in this country at all.That is because none of the contestants is Kenyan and the deceased was never one. From the documents filed, the deceased was domiciled in the Democratic Republic of Congo (formerly Zaire) and he died there. There is a conflict as to whether it was within the jurisdiction of the Congo Republic or the Republic of Rwanda as both countries were in armed conflict at the time. Indeed the death certificate issued and relied on to obtain the grant here was subsequently cast in doubt because of that conflict.

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Section 4(1)(b) above which is relied on by Mr Nanji provides domicile as the regulating factor in succession matters relating to movables. The law that applies is the law of the country where the deceased was domiciled. In this case the Republics of Congo or Rwanda. Ms Osino relied on English laws to draw a parallel that the section relates to distribution of the property of the estate and not the application for grant. Rule 98 of the English provision which is similar states: ‘Rule 98. - The succession to the movables of an intestate is governed by the law of his domicile at the time of his death, without any reference to the law of the country where: 1. He was born; or 2. He died; or 3. He had his domicile of origin ; or 4. The movables are situating at the time of his death.’

There is a commentary on this thus: ‘when the estate of the deceased person has been fully administered, that is to say when all debts, duties and expenses have been paid, the question arises by what law the beneficial distribution of his net estate is to be governed. So far as movables are concerned the law is now well settled, that the succession to the movables of an intestate is governed by the law of the country in which he was domiciled at the date of his death.

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The Rule applies, be noted, only to the succession in the strict sense of that term.’

I think the English provisions are fairly clearer than ours and have specifically made provisions for an application for a … grant. In my view the issues of obtaining a grant and the distribution of the estate form the essence of succession in probate and administration matters. Section 4(1) (a) and (b) make provision for those matters and I do not accept the submission that the provision has nothing to do with the obtaining of a grant of representation.

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For those reasons I think the grant ought to have been obtained from the domicile of the deceased at the time of his death or other country that may validly issue the grant. I am persuaded that there are sufficient reasons to revoke the grant issued herein and I now do so.

PART TWO TESTATE SUCCESSION Testate succession refers to succession to the property of a deceased person following instructions that the deceased had given during his lifetime. This follows directions by the deceased given by the deceased in his will or testament. The will expresses the wishes or intentions of the deceased regarding the disposal of their property upon death.The will is testamentary and therefore it only takes effect upon death. Disposal of property upon death may be by various modes, of which succession is but just one. Property could pass by nomination, gift in contemplation of death or survivorship, which operate outside the law of succession. This part contains decided cases on probate matters where a person dies testate. The cases set out here cover a wide range of issues arising in this area: nature of wills, validity of testaments, revocation, gifts under a will, and construction. Most of the decisions are English, which is a reflection of the reality that the Kenyan courts have not so far dealt with many testate matters. It could also be an indication that not many people die testate in Kenya, or that not many disputes arise from testate succession.

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Chapter Three is a collection of cases which define wills, stating their nature and function; while Chapter Four covers the cases which define the principles governing creation of valid wills. Chapter Five discusses the principles on revocation, alteration and revival of wills. Chapter Six defines the various categories of gifts by will, and the circumstances under which they are deemed to fail; while Chapter Seven illustrates the application of the rules governing the construction of wills and testaments.

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CHAPTER THREE THE NATURE 3.1 A WILL

DISPOSES OF

AND

FUNCTION

OF WILLS

PROPERTY

The will is designed to dispose of property, although it may serve incidental purposes. Section 3(1) of the Law of Succession Act defines a will to mean a ‘legal declaration by a person of his wishes or intentions regarding the disposition of his property after his death...’ Case number 18 illustrates that a will should dispose of property, otherwise if it fails to do so it would not be recognised as a will, and probate will be denied. Cases numbers 19 and 20 were burial disputes where the court had occasion to discuss the question of directions made in a will regarding the disposal of a testator’s body. Since a will is meant to dispose of the property of the testator and since there is no property in a dead body, any directions given in a will relating to the disposal of the testator’s body are not binding. The directions made in the will on the disposal of the body of the deceased are incidental to the core function of the will. In the Goods of Francis Morton (1864) 3 Sw and Tr 422; ER 1338 (Sir J P Wilde) (Probate cannot be granted of a will which does not dispose of property or appoint executors)

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CASE NO. 19

The deceased made and executed a will stating: ‘This is the last will and testament of me Francis Morton, of Liverpool, which I make this 5 February 1857. I constitute and appoint my dear wife sole guardian of all my infant children during their respective minorities.’ The will did not dispose of any property, nor appoint an executor. The court declined to grant probate to the will, stating that a grant of probate is only made to an instrument that affects property.

SIR JP WILDE::The case in Ventris – The Lady Chester’s Case 1 Vent 207 – is conclusive. The principle on which it depends is also clear. The jurisdiction of this court to grant probate of an instrument is founded on the fact that it affects personal property. This paper does not affect personal property, and therefore is not entitled to probate.

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James Apeli and another v Prisca Buluku (Mrs) Kisumu Court of Appeal civil appeal number 12 of 1979 (Law, Miller and Potter, JJA) (There is no property in a dead body and therefore a person cannot dispose of his body by will. The wishes of the deceased, though not binding must, so far as possible, be given effect, so long as they are neither contrary to custom nor to the general law or public policy or safety).

CASE NO.20

A widow sought court orders to be allowed to remove the remains of her late husband from where they were interred in the place where he was born, and to reinter them at a place where she and the deceased had established a home. She stated that his wishes were that his remains be buried at his new home. The court held that there is no property in a dead body and for that reason a person cannot dispose of his body by will, but where a deceased person had during his lifetime expressed his wishes, whether in a will or otherwise, regarding where he wished to be buried his wishes ought then to be respected and followed for as long as they are not contrary to custom or general law or public policy or safety.

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LAW JA: I also feel that although the parties in this case are generally subject to African customary law and I am therefore enjoined by section 3(2) of the Judicature Act (Chapter 8) to be ‘guided’ by that law, it would be relevant to consider what the English law is on the subject and whether it is suitable for application in Kenya / subject to such qualifications as Kenya circumstances may render necessary under section 3(1) of the Judicature Act. The English law on the subject is succinctly summarised at page 57 of Williams and Mortimer on Executors, Administrators and Probate (London, Stevens and Sons, 1970) as follows: ‘The Corpse There can be no property in a dead body. A person cannot dispose of his body by will. After death the custody and possession of the body belong to the executors until it is buried and, when it is buried in ground which has been consecrated according to the rites of the Established Church, it remains under the protection of the ecclesiastical court of the diocese, and cannot be removed from the grave or vault or mausoleum in which it has been placed, except under a faculty granted by the ecclesiastical court… Directions as to burial If the deceased has left directions as to the disposal of his body, though these are not legally binding on his personal representative, effect should be given to his wishes as far as that is possible. If the deceased has left no testamentary or clear directions as to his body, it is entitled to Christian burial. The duty of disposing of the body falls primarily on the executor.’

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We have no ecclesiastical courts in Kenya, and therefore no one to grant a ‘faculty’ but there is no reason why the High Court of Kenya should not exercise general jurisdiction in a matter such as this and grant the order applied for whether or not we call it ‘faculty’. I have stressed earlier that the parties in this case are practising Christians who married in Christian form. Furthermore, although no personal representative has been appointed yet, the plaintiff tells me that she has applied for letters of administration … and there is no reason to think that this will be refused… Apart from these technical rules, which as I have stated, can be overcome by adapting them to Kenyan conditions, it seems to me that the most important rule is to give effect, so far as possible, to the wishes of the deceased. In Re Matheson, Chancellor Steel had to resort to the ‘supposed’ wishes of the deceased. I do not have to do so in this case because I have held as a fact that it was the particular wish of Simon Buluku to be buried in Bungoma.

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In the result, I hold that whether one looks at the matter from a customary law point of view or the general law of Kenya, the wishes of the deceased, though not binding, must, so far as possible, be given effect to. Where the wishes are not contrary to custom nor contrary to the general law or public policy or safety, as in this case, the High Court has a general discretion to order the removal of the remains from one place to another.

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Pauline Ndete Kinyota Maingi v Rael Kinyota Maingi Nairobi Court of Appeal civil appeal number 66 of 1984 (Nyarangi JA, Platt and Kwach AJJA) (There is no property in a corpse, which a testator can dispose of by his will, the obligation on the executor is to give effect to the wishes of the deceased in relation to the disposition of his corpse as far as is practicable. The executor is not bound to give effect to those wishes if they are either impracticable or in conflict with the personal law of the deceased).

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CASE NO.21

The matter was between two women, and the dispute related to who had the right to bury and the place where the remains of the deceased were to be buried. The first woman asserted that as the first wife she had the prior right and under customary law the deceased was supposed to be buried at her homestead, while the second woman’s position was that the deceased had made a written will and in it directed that she was the one to determine where and how his remains were to be disposed of after his death,. The court held that an African could not opt out of his customary law with regard to the disposal of his body, unless of course his customary law is shown to be repugnant to justice and morality. It was stated that there is no property in a dead body which can be disposed of by will, any directions given in a will regarding the disposal of the body of the testator are to be given effect so far as they are practicable, and they would not be given effect if they are impracticable or in conflict with the personal law of the deceased. The court also found that the second woman was not a wife of the deceased as she did not have capacity to contract a statutory marriage with the deceased since at the time of the celebration of that marriage he was still validly married under customary law to the first woman.

NYARANGI JA: In this appeal, the court is invited for the first time to decide the point of law whether an African citizen of Kenya who has made a written will directing where his mortal remains should be interred is entitled to expect that upon his death those wishes will be given effect to. In my view, the point of law is properly frame able and answerable in these proceedings notwithstanding my conclusions on other principle issues. The plaintiff is and was at all material times the only lawful wife of the deceased Edward Kinyota. The deceased man and the plaintiff were married under Kamba customary law at Ngulwa village in 1956.That marriage subsisted until…the deceased passed away.

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The strength of the argument of counsel for the plaintiff that there was never ever any divorce of the marriage between the plaintiff and her deceased husband lies in the evidence of Simon Matonoyi. The Director of GMCA Church who knew the deceased man and his family for many years. Between 1964 and 1965, the church director received a written communication from a Bishop in Tanzania in charge of the church at Wangombe within Tanzania where the deceased was then working and cohabiting with the defendant. The Bishop sought information as to whether the deceased had a wife and if so, whether their marriage was solemnised in church. The church director informed the Bishop that the deceased, who was a follower of the director’s church in which both the plaintiff and the deceased were baptised was married and that his wife was then staying at her husband’s home.The church director wrote to the Bishop on those terms because he had not heard of any divorce between the couple.

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The director’s evidence on the marital status of the plaintiff was convincingly supported by the testimony of Mutuva Maingi, the elder brother of the deceased Kinyota, who told the judge that the marriage between the two took place in 1953, he Mutuva Maingi actually talked to the plaintiff ’s parents after the deceased said he wanted to marry the plaintiff, that the plaintiff was still staying at Ngulwa village with her six children, two of whom were in salaried employment and that the plaintiff was in-charge of her husband’s businesses. It is against this background that the faint argument on behalf of the defendant that there was a valid marriage held on 17 June 1967 and solemnised by Changombe Parish Church in Tanzania, must be considered. The defendant’s contention is in fact incredible and unmaintainable having regard to statutory provisions of the Marriage Act (Chapter 150) and the African Christian Marriage and Divorce Act (Chapter 151). There was no evidence whatsoever in support of the defendant’s bold assertion that the way was clear for the late Kinyota to marry in church. Because the late Kinyota was already married under Kamba customary law, he could only lawfully contract another marriage under Kamba customary law under whose procedure a marriage is potentially polygamous. It is irrelevant that no objection was raised to the claimed marriage which took place in Tanzania and which event therefore the plaintiff was unaware about. The condition of bachelor as stated in the certificate of marriage as exhibited by the defendant was false. It is not correct that neither of the parties to the intended marriage was married by African customary law – vide sub-section 1(d) of section 11 of the Marriage Act (Chapter 150).The marriage certificate relied upon by the defendant was therefore issued contrary to the provision of the law stated above. The defendant’s other primary fallacy was to seek to argue that she and the late Kinyota were Christians, the Parish Priest in Tanzania celebrated a marriage valid under the African Marriage and Divorce Act (Chapter 151) (the Act). The provisions of the Act do not, however, avail the defendant; the deceased Kinyota stated falsely and deliberately so, before the Parish Priest that he was a bachelor, therefore not one already married to the defendant under Kamba customary law and desiring to convert that marriage into a marriage by which they were legally bound as man and wife so long as both shall live to the exclusion of anybody else. Only the plaintiff had the legal capacity to invoke section 9(1) of the Act to her advantage, not the defendant.

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The conclusion I reach on the facts and on the relevant statutory provisions is that the defendant was not, and could not, be married to the late Kinyota under any system of law known and recognised by the African community or indeed any other community in Kenya.The defendant was not at any time while Kinyota lived, his wife. The judge was right to declare all that. It is quite clear, therefore, that there is no legal basis for the appointment of the defendant as executor and trustee of the late Kinyota who states in the will that the plaintiff was divorced on 13 August 1963. Upon the evidence, there were no divorce proceedings and no question arose between the plaintiff and her late husband about divorce. In my judgement, the testator’s appointment of the defendant was both illegal and fraudulent. The testator relied on deliberate falsehood. The appointment as executor and trustee is thus void for fraud and illegality rendering executorship impossible. Those are cogent reasons why in my judgement this court can remove the defendant and clear the way for the administration of the deceased man’s estate by his family to whom the custody and possession of his dead body now belong until it is buried. If the burial has taken place in accordance with the wishes of the family of the deceased man, the same is deemed to have been done lawfully under Kamba customary law.The family of the late Kinyota which is composed of his wife, his elder brother and his children could be trusted to take into account the wishes of the deceased man as to where he should be buried. As the deceased had just one wife and one homestead, there could not be any dispute as to the burial place. The family members would of course be guided in the location of the burial place by Kamba tradition as is the case with all African communities of the country. The greatest possible respect is always paid to the body of the deceased.The views and wishes of the widow and those of the adult male children of the deceased shall be sought and considered seriously.The close family members of the family would be in the know-how as to any special wishes of the deceased. Any such wishes, where they exist, would usually be uttered at the time when death is imminent to a trusted family member who would have no reason for not divulging such information. The chances of the late Kinyota’s wishes being ignored are here so remote as to be non-existent. The decision in Apeli and another v Prisca Buluku (Mrs), civil appeal number 12 of 1979 (unreported) was concerned with a very different problem and is therefore clearly distinguishable from the instant case. In Apeli, the respondent widow sought the sanction of the court to enable the remains of her late husband to be moved from one place to the place where the deceased had specifically wished to be buried. Here, the defendant’s status is that of a concubine, without legal right to bury the late Kinyota. Directions as to burial can only properly be given effect to a personal representative, where there is one. Here, the only people with credibility to act as personal representatives of the deceased man are the plaintiff and his elder brother. The two would not be bound by any directions as to the disposal of the body. I deal, lastly, with the point of law which appears to be the core of this appeal and which was framed by counsel for the appellant.The substance of that point already has been set out in an earlier part of this judgement.

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In the interest of clearing the ground and identifying the problem, let me now say that the starting point is sub-section (2) of section 3 of the Judicature Act. This court is therein enjoined to be guided by African customary law in a case such as the present one ‘So far as is applicable and is not repugnant to justice and morality or inconsistent with any written law…’

It is common ground, and it is obvious, that an African citizen of Kenya would be affected by the customary law of his particular community. In general, Kenyan Africans like to have real connection with the burial of a deceased more especially a family member. The widow of her deceased husband - where she dies her grave would be located next to the husband’s. The sons of the deceased man would have to inherit the land of their late father having regard to his burial place. The members of the clan of the deceased are entitled to know where one of them who has died has been buried and the expectation is that the burial place is within the deceased man’s home and inside the clan boundaries. There is individual, family and clan interest and concern in the burial place of a Kenyan African. Departure from the customary procedures is not only incomprehensible but unacceptable. The punishment for noncompliance of the rules is understood to be some evil act on the family or clan of the deceased. For reasons such as these ones, before the wishes of an African citizen of Kenya who has made a will directing where his mortal remains should be interred can be given effect to, the executor of his will would be obliged to prove that the African customary law providing that the burial ceremony and the burial place are the sole responsibilities of his living family members is inapplicable, is repugnant to justice and morality or inconsistent with written law. In the absence of such proof on the balance of probabilities, any such wishes would not be given effect to and the mortal remains would be interred in accordance with the African customary law applying to the African.

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PLATT JA:The central issue is whether by will, the deceased may bind his executors, or family to carry out the burial of the deceased against the customs of his family. The deceased in this case had cohabited with the plaintiff Rael and the first defendant Pauline. The deceased was acknowledged to have entered into a customary marriage in 1956 with Rael, and without divorcing with Rael had entered into the formalities of a Roman Catholic Church marriage with Pauline in 1967…He had made a will, the effect of which was that Pauline should decide the burial details at her farm. Pauline did so…that the deceased should be buried at her farm despite the consensus opinion in the family that the deceased should be buried on his family land, superintended by Rael. There was great dissension…The women, Rael, and Pauline brought this dispute to court. The learned judge, with a keen eye to rural behaviour and custom decided that Rael was right. It is now contested that this court should follow the wishes of the deceased and great reliance was placed upon Apeli v Buluku, civil appeal number 12 of 1979, where statements to that effect are to be found. This court has had occasion to reflect upon the progression of thought exhibited by that case. Whilst the well-known statutory injunction in section 3(2) of the Judicature Act (Chapter 8) (that this court must be

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guided by customary law), was referred to in Apeli’s case, the effect of the decision was to reject the customary law in favour of the deceased’s wishes. It is not for this court to pass final judgement on Apeli’s case, and each case may depend to some extent on the content of the customary law involved, including modern shifts. The customs of the family in question, as they describe it, and as their pastor describes, seems to come to this, that they would heed the wishes of the deceased, but the consensus of opinion in the family would be followed. The general custom was that where there were two wives, the deceased husband would be buried at the home of the first wife. There was some description of variations in favour of a church burial, but it was said that even if the deceased wished such a burial to take place, the feelings of the family would be acknowledged. If one must go to the English law it is not so very different. The deceased cannot bind his executor. But though the deceased’s instructions as to his burial are not binding on the executor, effect should be given to the deceased’s wishes as far as that is possible…How would an English executor decide what to do? He would be guided by the deceased’s wishes and the wishes of his family, and the funds available. The purpose of giving the Executor (in English law) and the family in Akamba customs power to decide, is to make sure that there is a practical, decent and acceptable burial commensurate in the eyes of those that remain with the stature of the Deceased, and family honour. It is to promote peace in the family. KWACH JA: As to the question posed by Mr Ringera whether an African citizen of Kenya who has made a written will directing where his mortal remains should be interred is entitled to expect that upon his death those wishes will be given effect to, the short answer is that as there is no property in a corpse which a testator can validly dispose by his will, the executor’s obligation is to give effect to the deceased’s wishes in relation to the disposition of his corpse as far as practicable.The executor is not bound to give effect to those wishes if they are either impracticable or in conflict with the personal law of the deceased.

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***

3.2 CONDITIONAL WILLS A will may be meant to be conditional, that is, intended to operate only on the happening of some event specified in the will. The happening of the specified event is a precondition to the will operating. Cases numbers 22, 23 and 24 illustrate the tests applying to conditional wills. The Law of Succession Act does not have any provisions on conditional wills. In the event of a Kenyan court being confronted with a conditional will, the applicable law would be the English common law.

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In the Goods of Spratt (1897) P 28 (Sir F H Jeune P)

CASE NO. 22

(A conditional will is effective upon the occurrence of the event upon which it is conditioned) A soldier on active service wrote a letter to his sister telling her that ‘in case of an accident’ he wished to make everything he possessed over to her. It was held that the letter amounted to a soldier’s will, but the same was not a conditional will, as the disposition of property was not dependent on his death while on active service.

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SIR F H JEUNE P: ... If the will is clearly expressed to take effect only on the happening, or not happening, of any event, cadit quaestio, it is conditional. If the testator says, in effect – that he is led to make his will by reason of the uncertainty of life in general, or for some special reason, cadit quaestio, it is not conditional. But if it be not clear whether the words used import a reason for making a will or impress a conditional character on it, the whole language of the document, and also the surrounding circumstances, must be considered. In such cases, there are two criteria which are especially useful for determining the problem: first, whether the nature of the disposition made appears to have a relation to the time or circumstances of the contingency; and, secondly, where the contingency is connected with a period of danger to the testator, whether it is coincident with that period, because, if it is, there is a ground to suppose that the danger was regarded by the testator only as a reason for making a will, but, if it is not, it is difficult to see the object of referring to a particular period unless it be to limit the operation of the will. Applying the tests which I have above indicated to the present case, I think that the words ‘in case of an accident’ point only to the reason why the testator desired to make a will.There is no expression of any period to be found in the document within which alone it was to be operative; on the contrary, the request that the will should be kept by his sister till he asked for it appears to me to shew that the testator had not in his mind any defined period of time at the expiration of which he intended that his will should cease to be effective. Nor is there anything in the disposition of the property which indicates that it was temporary, or that it did not apply to whatever property of which the testator might at any time be possessed. I am of the opinion, therefore, that probate should be granted of the document in question.

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In the Goods of Mayd (1881) 6 PD 17 (The President) (In wills of this nature the court ought not look at or scrutinise the expressions used with too great nicety)

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CASE NO. 23

The deceased, being about to travel, made a will containing the following words: - ‘On leaving this station Thargomindah and Melbourne, in case of my death on the way, know all men this is a memorandum of my last will and testament:’- It was held that the will was not contingent upon his death before arriving at Thargomindah or Melbourne, and the will was admitted to probate.

THE PRESIDENT: I am of the opinion that I ought to grant probate of this will. The meaning of general phrases of this kind is, ‘knowing the uncertainty of human life, and being about to enter on something particularly dangerous, I make this my will,’ and the court ought not to scrutinise such expressions with too great nicety. In In the Goods of Porter (Law Rep 2 P and D 22) the words were: ‘Being obliged to leave England to join my regiment in China, and not having the time to make a will, I leave this paper containing my wishes and desires. Should anything unfortunately happen to me while abroad, I wish everything that I may be in possession of at that time, or anything appertaining to me hereafter, whether in lands, goods, clothes, chattels, or money to be equally divided.’ Lord Penzance says that if the will had stopped at the end of the first sentence it would have fallen within the first class of cases to which he referred, and that is where it does stop in this case, i.e., at the end of the following sentence: - ‘On leaving this station for Thargomindah and Melbourne, in case of my death on the way, know all men this is a memorandum of my last will and testament.’ In this case there are no such words as those relied on by Lord Penzance, as leading to a different conclusion, namely, those in which the testator said, “I wish everything that I may be in possession of at that time,’ i.e., at the time of his death abroad, to be divided; I therefore admit the will to probate.

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Lindsay v Lindsay (1872) LR 2 P and D 459; 27 LT 322 (Lord Penzance) “(A conditional will is effective upon the occurrence of the event upon which it is conditioned.)” The deceased left a paper which commenced ‘Instructions to be followed if I die at sea or abroad,’ followed by the disposition and other directions. The deceased did not die abroad nor at sea.

CASE NO. 24

The court held that, assuming the will to be made at sea, it was clearly conditional, for having governed the whole of the contents. The deceased not having died at sea or abroad, the events on the occurrence of which it was to take effect never occurred. It therefore pronounced against the will, but allowed the plaintiff her costs out of the estate. ***

3.3 GIFTS

IN

CONTEMPLATION

OF

DEATH

Property may pass on death in various ways, other than through the process of succession. One such mode of passing property upon death is the device of a gift in contemplation of death or donatio mortis causa. It operates outside the law of succession, but curiously the Law of Succession Act deals with it at section 31, ostensibly for the purpose of providing some guidance rather than mainstreaming it within the law of succession.

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Section 31 provides: ‘A gift made in contemplation of death shall be valid, notwithstanding that there has been no complete transfer of legal title, if: (a)

The person making the gift is at the time contemplating the possibility of death, whether or not expecting death, as a result of a present illness or present or imminent danger; and

(b)

A person gives movable property (which includes any debt secured upon movable or immovable property) which he could otherwise dispose of by will; and

(c)

There is delivery to the intended beneficiary of possession or the means of possession of the property or of the documents or other evidence of title thereto; and

(d)

A person makes a gift in such circumstances as to show that he intended it to revert to him should he survive that illness or danger; and

(e)

The person making the gift dies from any cause without having survived that illness or danger, and

(f)

The intended beneficiary survives the person who made the gift to him:

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Provided that: (i)

No gift made in contemplation of death shall be valid if the death is caused by suicide;

(ii)

The person making the gift may, at any time before his death, lawfully request its return.’

There is no Kenyan case law on gifts in contemplation of death, but section 31 of the Law of Succession Act is clearly an enactment of the English common law on such gifts. Cases numbers 25, 26, 27 and 28 define gifts in contemplation of death, and the conditions that must be met to found such a gift. In re Beaumont: Beaumont v Ewbank (1902) 1 Ch 889 (Buckley J)

CASE NO. 25

(A donatio mortis causa is a gift made by a person during their lifetime which is conditional upon their death. It is neither an inter vivos nor a testamentary gift. Cheques drawn by the donor cannot be a donatio mortis causa) A donor, while very ill and in expectation of death, drew a cheque in favour of a donee and handed it over to him. The donor died before the cheque could be cashed. The donee brought an originating summons seeking an answer to the question whether there was a valid donatio mortis causa. It was held that there was none.

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BUCKLEY J:The question to be decided is whether the testator made a valid donatio mortis causa of 300l ...It is sufficient to say that what he did was to sign and hand over his own cheque, and that it was not paid before his death. A donatio mortis causa is a significant form of gift. It may be said to be of an amphibious nature, being a gift which is neither entirely inter vivos nor testamentary. It is an act inter vivos by which the donee is to have the absolute title to the subject of the gift not at once but if the donor dies. If the donor dies the title becomes absolute not under but as against his executor. In order to make the gift valid it must be made so as to take complete effect on the donor’s death.The court must find that the donor intended it to be absolute if he died, but he need not actually say so. In Gardner v Parker (3 Madd 184; 18 RR 213) Sir John Leach VC says: ‘It is to be inferred that it was the intention of the donor, that it should be held as a gift only in case of his death.’ It is a question of fact: the inference may be drawn that the gift was intended to be absolute, but only in case of death. Sir John Leach VC in Duffield v Elwes ((1823) 1 S and S 239 held that a mortgage or a bond given as collateral security for money due on a mortgage could not be made the subject of a donatio mortis causa . That decision was reversed by Lord Eldon (Duffield v Elwes (1 Bli (NS) 497; 30 RR 69). He pointed out that in the case of what was said to be a donatio mortis causa the question for decision was not similar to that which arises when there is an incomplete voluntary conveyance; for this reason, that in the former case the title is not to be complete until the donor is actually dead. The question is not whether there is a complete title,

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but whether the donee can call upon the legal personal representative of the donor to make good his title. The legal personal representative is after the donee’s death a trustee for the donee. Lord Eldon says: ‘The opinion which I have formed is, that is a good donatio mortis causa, raising by operation of law a trust.’

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Accordingly, on the principle laid down by Lord Eldon in Duffield v Elwes, the following have been held good subjects of donation: (a) A promissory note payable to the deceased’s order but not indorsed: Veal v Veal (27 Beav 303) (b)Bills of exchange in favour of the deceased or his order: Rankin v Weguelin (27 Beav 309) (c) Bills of exchange payable to order and which had not been indorsed: In re Mead (15 Ch D 651) (d) A cheque payable to the donor’s order and not indorsed: Clement v Cheesman (27 Ch D 631) (e) a banker’s deposit note : In re Dillon (14 Ch D 76). In none of these cases had the donee got the complete title, but he had obtained the indicia of title before the donor’s death, and as against the legal personal representative he could say, ‘Lend me your name, or give me your endorsement, in order that I may complete my title. There is a trust in my favour.’ But how does the case stand where the deceased’s own cheque is handed over? A man’s cheque in favour of another person is not an equitable assignment of any part of the donor’s balance at his bankers’: Hopkinson v Forster (LR 19 Eq 74). The cheque is only a revocable mandate, which may be stopped in the donor’s lifetime and is revoked by his death. If, before donor’s death, the cheque is presented and paid, there is no question of donatio mortis causa of the cheque, although there may be a question whether the money has been received on the terms that it shall only be retained in case of the donor’s death. If the cheque is not presented in the donor’s lifetime the gift is ineffectual; the cheque is a revocable order which is revoked by the donor’s death: Hewitt v Kaye (LR 1 Eq 198); In re Beak’s Estate (LR 13 Eq 489). ...in all cases, in order that the gift may be valid, it must I think be shown that the donor handed over either property, or the indicia of title to property, which belonged to him. His own cheque is not property; it is only a revocable order such that if the banker acts on it the donee will have the money to which it relates. Even without actual payment of the cheque there may be a good gift – for instance, if there is an undertaking by the banker to the donee to hold the amount of the cheque for the latter, that may be enough. Unless there is that, or something equivalent to it, there is no delivery of property, but only a delivery of that which if acted on will procure the delivery of property. ...What is the legal result? The case is not within Bromley v Brinton (LR 6 Eq 275); there could not be an equitable assignment of funds at the bank; for the deceased had no funds there. If the manager was minded to lend, there was no contract binding him to do so. There was no consideration for any contract, and if the cheque had come back with the signature confirmed, and the manager had in the meantime changed his mind, he need not have paid. No right had been acquired by the drawee, but an expectation only. Even if the manager did change his mind, still an agreement to lend is not enforceable, and no right of property had passed to the drawee. I hold, therefore, that in this case there was no valid donatio mortis causa. the mere drawing of the cheque and handing it to the donee, coupled with the subsequent facts, did not amount to such a tradition as was required in order to give the donee a right to the amount of the cheque on the death of the donor. Even if the account had

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been in credit the drawee would not, I think, have obtained any right to the property. If a cheque were given by a donor who was dangerously ill, and the drawee went to branch of the bank in the country and asked for payment, and the manager said, ‘The cash is locked up for the night; come tomorrow, and I will pay,’ and the drawer died in the night, it might very well be that there was an appropriation by the undertaking to answer the cheque and a good donatio mortis causa. but the facts of the present case do not come up to that supposed state of facts. There was no promise to pay in the case before me; and if there is a promise not to pay but only to lend, that is not sufficient. I hold, therefore, that there is no valid donatio mortis causa. Re Lillingston (deceased): Pembery v Pembery and another [1952] 2 All ER 184 (Wynn-Parry J) (To constitute a valid donatio mortis causa, the gift must be made in contemplation of death, death need not be imminent, the donor must intend that the gift reverts to them in the event death does not occur and there must be effective delivery of the subject-matter of the gift. A gift in contemplation of death may be express or it may be inferred from the circumstances)

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CASE NO. 26

The deceased, while in poor health and bedridden, said to her landlady that she was ‘done for,’ she said to her ‘I am going to give you all my jewellery. I am giving you the key to the safe deposit at Harrods and when I am gone you may go and get the jewellery.’ She handed the keys of her trunk to the landlady, saying: ‘Here is the key to the trunk over there...” The safe deposits referred to contained jewellery. The landlady brought an originating summons claiming entitlement to the jewellery. It was held the circumstances satisfied the requirements for a donatio mortis causa, as death was imminent, the donor intended that the subject-matter revert to her in the event of her recovery and there was sufficient delivery of the jewellery.

WYNN-PARRY J: In my view, the real question here is whether, as Mrs Pembery contends, there was an effective donatio mortis causa, or, as the second defendant contends, there was an effort to make a gift inter vivos, in which event it is not disputed that the jewellery contained in the parcel which was put in the trunk was effectively given by Mrs Lillingston to Mrs Pembery. The constituent elements of a valid donatio mortis causa are well settled. They are accurately stated in Jarman on Wills, (8 ed),, and they are stated by Sargant J, in Re Wasserberg ((1915) 1 Ch 195; [1914-1915] All ER Rep and by Farwell J, in Re Craven’s Estate [1937] 3 All ER 33; (1937) Ch 423; 106 LJ Ch 308; 157 LT 283)...It is sufficient to say that one of the elements is that the gift should be conditional, i.e., on the terms that, if the donor should not die, he should be entitled to resume complete dominion of the property, the subject-matter of the gift. On behalf of the second defendant it is said that on the true view of this evidence there is no room for any such condition.

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In approaching the consideration of this matter it is necessary to have in mind what was said by Sir John Leach,VC, in Gardner v Parker ((1818) 3 Madd 184; 56 ER 478): ‘The doubt here is, that the donor had expressed that the bond was to be returned if he recovered. The bond was given in the extremity of sickness and in contemplation of death; and it is to be inferred that it was the intention of the donor that it should be held as a gift only in case of his death. If a gift is made in expectation of death, there is an implied condition that it is to be held only in the event of death. The case of Lawson v Lawson ((1718)1 P Wms 441; 24 ER 463), Miller v Miller ((1735) 3 P Wms 356) and Jones v Selby ((1710) Prec Ch 300; 24 ER 143) furnish this rule.’

That decision was quoted with approval in Staniland v Willott ((1852) 3 Mac and G 664; 42 ER 416), and is to be regarded as good law at the present time. But for the Scottish case, Lord Advocate v M’Court ((1893) 20 R (Ct of Sess.) 488), I should not myself have felt any doubt but that the condition was fulfilled in this case. In the first place, there is the very considerable value of the jewellery and the number of pieces comprised in the gift. In the second place, there is the statement of Mrs Lillingston…: ‘I am going to give you all my jewellery. I am giving you my key to the safe deposit at Harrods and when I am gone you can go and get the jewellery.’

Those words, to my mind, are (i) words of gift, but (ii) words which import the condition that if Mrs Lillingston were to survive she would expect to resume complete dominion...

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The imminence of death was certain and knowledge thereof was imputed to the deceased. Further, it appears to me that the form of the transaction in that case, involving the payment of £100, militated against the presence of the essential condition. In the present case the evidence does not lead me to the conclusion that on 6 February 1950, it was certain that death would overtake Mrs Lillington within a matter of days. No doubt, she felt that she was almost certain to die soon, but that does not appear to me to be sufficient... There remains the question whether sufficient delivery was made of all or any part of the jewellery. So far as the jewellery in the trunk in the bedroom is concerned, the delivery of the key of that trunk to Mrs Pembery was sufficient delivery. So far as the jewellery at Harrods, Ltd, safe deposit is concerned, I am of the opinion that delivery of the key to that safe deposit, the key being in the finger of the glove in the trunk, was sufficient delivery on the authority of the judgement of Sargant J in Re Wasserberg. .. In the result I propose to answer question 1 of the originating summons by declaring that the jewellery mentioned was the subject of a donatio mortis causa in favour of Mrs Pembery and ought to be delivered by the plaintiff to her subject to the payment of estate duty and the debts of the deceased.

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Wilkes v Allington (1931) 2 Ch 104 (Lord Tomlin)

CASE NO. 27

(A donatio mortis causa is not generally conditioned on the donor dying from the same disorder as that from which he is suffering, and contemplates the possibility of death, at the time it is made) The donor, while suffering from cancer and knew that he would not live long gave to his nieces an envelope with an endorsement to the effect that it related to his deed which was ‘to be given upon death.’ He later died of double pneumonia following a chill. It was held that there was a valid donatio mortis causa.

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LORD TOMLIN: The essential conditions for a valid donatio mortis causa are stated by Lord Russell in Cain v Moon (1896) 2 QB 283, where he said: ‘For an effectual donatio mortis causa three things must be combine: first, the gift or donation must have been in contemplation, though not necessarily in expectation of death; secondly, there must have been delivery to the donee of the subject-matter of the gift : and thirdly, the gift must be made under such circumstances as to show that the thing is to revert to the donor in case he should recover.’ ...There was delivery–no one disputes that – and it was a delivery of a document, which, if it was given in the proper circumstances and with the proper intention, would have been operative as a donatio mortis causa, as was held in the case of Duffield v Elwes (1 Bli NS 497 ) by Lord Eldon . Secondly, there is no doubt about this, that there was contemplation of death; and, as Lord Russell has said, it is not necessarily expectation of death, by which I imagine he means expectation of immediate death. That this man believed himself to be in the shadow of death I do not doubt; I think it is clear upon the evidence that he believed himself to be a doomed man. He did not know how long he had to live, but he was satisfied, I think that he had not long to live, and I think that within the meaning of the phrase which Lord Russell has used, what he did he did in contemplation of death. It is said, in a passage in Williams (12 ed) at page 479), that the gift must be conditioned to take effect only upon the death of the donor by the existing disorder. No authority has been cited to me for that particular proposition. in fact, the testator did not die by the actual disorder from which he was suffering at the time when he was handed over the deed, because he died from double pneumonia, which supervened upon a chill. If a man, in contemplation of death within the meaning of the phrase, as used by Lord Russell, in fact dies from some cause other than the disorder which was present to his mind when he made the gift, I have no difficulty in seeing why the gift is not operative. So far as it has any bearing upon the matter I think the case of In re Richards ((1921) 1 Ch 513), before Eve J, supports the view that contemplation of death is a necessary element, and that if the donor does in fact die the gift takes effect. But then it is said that there is no indication here that it was intended that if he recovered the gift should be returned. This is the real point; it seems to me, in the case. It is said that assuming that he intended to benefit the defendants, the whole matter is consistent with his intention that they should have

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the gift of the mortgage on his death, but reserving to himself the interest during his life; in other words, that it was an absolute gift to them in future, and not a gift to them which was to be returned in the event of his recovery. Of course, the line is rather fine, because when a man is smitten with a mortal disease, he may know, in fact, that there cannot be any recovery; yet I apprehend that a man in that situation, in point of law, is capable of creating a good donatio mortis causa. The question is: what is the fair inference to be drawn from all the circumstances? It is said that the endorsement on the envelope, to which I have referred, is against the contention that there is a donatio mortis causa. for my part, I do not take the view. I think it is plain that the endorsement on the envelope was an endorsement made at a time when his intention was not to give the defendants anything during his lifetime; but to have the instructions which he had given to Mr Friday carried out – namely, that after his death the mortgage should be handed over and released to the defendants. I think the endorsement had no reference at all to the circumstances in which he handed over the envelope to the ladies. From all the circumstances that I have mentioned, and, in particular, having regard to the conversation with the housekeeper, I think the fair inference is this : that he changed his mind; that, although originally he had intended that there should be handing over of the gift to them till after his death, yet he changed his mind as he felt his disease creeping upon him, and that he did intend to make it over to them in the event of his death, and that there can be implied an intention that it should be returned to him if he recovered, just as it was implied in the presence of very similar words in the case of Gardner v Parker (3 Madd 184). It is a fair inference to draw from all the circumstances of the case that, if he had recovered, the subject-matter of the gift would have been returned to him.

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Wildish v Fowler [1892] 8 TLR 457 (Lord Halbury LC, Lords Watson, Herschell, Morris and Field) (For a valid donatio mortis causa the donor must have handed over to the donee or his agent the subject matter of the gift or the means of controlling it) A landlady was handed a parcel containing a deposit note by her tenant, two days before his death, with instruction to ‘take care of this.’ She took the view that this was a gift in contemplation of death, and claimed the same from the executor of the tenant’s will. It was held that there was no valid donatio mortis causa as the deceased had not parted with possession; he had merely handed over the property for safe custody.

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CASE NO. 28

The testator was a very nervous man and particularly apprehensive of sudden death, and suffered from several attacks of illness during the last three years of his life. During one of these attacks... he made his last will, in which there was no mention of the appellant, who was the attesting witness, although she alleged that the testator had made to her a donatio mortis causa of an envelope, supposed to contain the deposit note, on a previous occasion, and again immediately prior to the date of his executing his will. in the following year he gave her as a present £850 to enable her to buy two houses...On 11 May 1887, the testator was again taken ill, and while she was assisting him to undress, he took out of his pocket and gave her the parcel in question, saying ‘Take care of this.’ The appellant had never seen the parcel, which was tied up in a pocket handkerchief, before, and did not then or until after the testator’s death know what it contained. The appellant placed it in a book-case belonging to the testator, the key of which, along with his other keys she gave after his death to his executor. The handing over of the parcel was the alleged donatio mortis causa relied on by the appellant. The respondent’s counsel pointed out that on the appellant’s own statement the testator used no words of gift, nor any words showing an intention to benefit her, and, further, that at the time she merely acted with the property as the testator’s attendant, as she locked it up in a bookcase belonging to the deceased, and left it there until the executor assumed control of his property.

CHAPTER 4 THE CREATION

OF A VALID WILL

4.1 INTRODUCTION The mechanics of the making of a valid will focuses on two key factors – the capacity of the maker of the will and the form the will takes. Ideally, a will should be made in proper form by a person with the capacity to make it. Capacity covers a range of matters-age, soundness of mind, and the circumstances attending the making of the will.

4.2 MENTAL

OR TESTAMENTARY

CAPACITY

Unsoundness of mind has the effect of incapacitating a person from making a valid will. Mental capacity is not necessarily linked to mental disorder. It essentially refers to the testator’s capacity to understand the nature of will making. Section 5 of the Law of Succession Act provides as follows on testamentary capacity: ‘5(1) Subject to the provisions of this Part and Part III, any person who is not of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses.

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(3)

Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.’

Cases numbers 29, 30 and 31 are old English cases defining testatmentary capacity.The principles stated in these English cases have been applied in Kenya as demonstrated by cases numbers 32, 33, 35 and 36, and also in Tanzania through case number 34.

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Charles Harwood v Maria Baker (1840) 3 Moo PC 282, 13 ER 117, PC (Erskine J) (To constitute a sound disposing mind, the testator must have a sound mind enabling him to understand the nature of willmaking, a sound memory to enable him recollect the property he is disposing of, and a sound understanding to enable him remember the persons he is morally bound to provide for having regard to the persons’ relationship with him)

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CASE NO. 29

The testator executed a death-bed will leaving his estate to his wife, to the exclusion of other members of his family. He was of a weakened and impaired capacity at the time, from a disease affecting his brain, and the disposition in the will was a total departure from and contrary to the previous expressed intentions of the testator. The matter before the court was an appeal from a decision of a lower court revoking probate granted to the will of the deceased. The appeal upheld the decision of the lower court, finding that the deceased did not have sufficient recollection of his other family members, and therefore he did not have sufficient capacity to make the will

ERSKINE J:Their Lordships are of the opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others whom by his will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one; and more especially, when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration and, therefore, the question which their lordships propose to decide in this case is, not whether Mr Baker knew, when he executed this will, that he was giving all his property to his wife, and excluding all his other relation from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the disposition might cast down some light upon the question as to his capacity.

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Banks v Goodfellow (1870) LR 5 QB 549 (Cockburn CJ)

CASE NO. 30

(Testamentary capacity means that the testator must have a sound and disposing mind, enabling him to understand the nature of will making, a sound memory, enabling him to recollect the property he means to dispose of, and a sound understanding, enabling him to remember the persons who should benefit from his estate and the manner it is to be distributed)

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The will of the testator was prepared based on instructions taken by a solicitor who prepared it and it was signed by the testator and attested by witnesses in his presence. The testator had formerly been of unsound mind, and had infact been admitted to an institution. After his discharge he continued to suffer from fixed delusions and a succession of epileptic fits. He however managed his own money affairs. Upon his demise validity of the will was called to question on the ground of lack of testamentary capacity. COCKBURN CJ: The law of every civilised people concedes to the owner of property the right of determining by his last will, either in whole or in part, to whom the effects which he leaves behind him shall pass.Yet it is clear that, though the law leaves to the owner of the property absolute freedom in this ultimate disposal of that of which he is thus enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus given. The instincts and affections of mankind, in the vast majority of instances, will lead men to make provision for those who are the nearest to them in kindred and who in life have been the object of their affection. Independently of any law, a man on the point leaving the world would naturally distribute among his children or nearest relatives the property which he possessed.The same motives will influence him in the exercise of the right of disposal when secured to him by law. Hence arises a reasonable and well warranted expectation on the part of a man’s kindred surviving him, that on his death his effects shall become theirs, instead of being given to strangers. To disappoint the expectations thus created and to disregard the claims of kindred to the inheritance is to shock the common sentiments of mankind, and to violate what all men concur in deeming an obligation of the moral law. It cannot be supposed that, in giving the power of testamentary disposition, the law has been framed in disregard of these considerations. On the contrary, had they stood alone, it is probable that the power of testamentary disposition would have been withheld, and that the distribution of property after the owner’s death would have been uniformly regulated by the law itself. But there are other considerations which turn the scale in favour of the testamentary power. Among those, who, as a man’s nearest relatives, would be entitled to share the fortune he leaves behind him, some may be better provided for than others; some may be more deserving than others; some from age, or sex, or physical infirmity, may stand in greater need of assistance. Friendship and tried attachment, or faithful service, may have claims that ought not to

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be disregarded. In the power of rewarding dutiful and meritorious conduct, paternal authority finds a useful auxiliary; age secures the respect and attentions which are one of its chief consolations. It is unnecessary to consider whether the principle of the foreign law to that of our own is the wiser. It is obvious, in either case that to the due exercise of a power, thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and understand and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

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Here, then, we have the measure of the degree of mental power, which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgement are lost, and the mind becomes a prey to insane delusions, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand. It must be borne in mind that the absolute and uncontrolled power of testamentary disposition conceded by the law is founded on the assumption that a rational will is a better disposition than any that can be made by the law itself. If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right. In these cases it is admitted on all hands that though the mental powered may be reduced below the ordinary standard yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. Is it enough if, to use the words of Sir Edward Williams, in his work on executors, ‘the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.’

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In the case of Harrison v Rowan, 3 Washington CC 580, at page 585; referred to in Sloan v Maxwell, 2 HW Green (New Jersey Rep) at page 570) in the United States Circuit Court for the district of New Jersey, the law was thus laid down by the presiding judge; ‘As to the testator’s capacity, he must in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms. in deciding upon the capacity of the testator to make his will, it is the soundness of the mind and not the particular state of the bodily health, that is to be attended to; the latter may be in a state of extreme imbecility, and yet may possess sufficient understanding to direct how his property shall be disposed of; his capacity maybe perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property. For, most men, at different periods of their lives, have meditated upon the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they could in comprehending business in some measure new,.’ In the case of Den v Vancleve, (1819) 5 NJL (2 2 South 589 (2 Southard, at page 660) the law was thus stated: ‘By the term ‘a sound and disposing mind and memory’ it has not been understood that a testator must possess these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done ; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discretely to judge, of all those things, and those circumstances, which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be said to be of sound mind and disposing mind and memory.’ In the subsequently case of Steven v Vancleve, 9822) 4 Wash CC 262, 23P Cas 35, CCDNJ (4 Washington, at page 267) it is said: ‘The testator must; in the language of the law, be possessed of sound and disposing mind and memory. He must have a memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of, and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing.The

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question is not so much what was the degree of memory possessed by the testator? As this: Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind to know and understand the business in which he was engaged at the time he executed his will?’ Boughton and Marston v Knight and others (1873) LR 3 P and D 64 [1861-73] All ER Rep 40 (Sir J Hannen) (Sound understanding refers to the testator having a memory to recall the persons who befit the testator’s bounty, and understanding to comprehend those persons’ relationship to him and their claims upon him)

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CASE NO. 31

The testator left a will which gave the whole real estate to persons who were not his immediate family. He gave to his sons small legacies, but the children of his deceased daughter were not provided for at all. When the executors (who were also the principal beneficiaries) propounded the will, the sons of the deceased testator brought objections, pleading that the deceased was not of sound mind, memory and understanding on the day he allegedly executed his will. The court found in their favour.

SIR J HANNEN: The sole question in this case which you have to determine is, in the language of the record, whether Mr John Knight, when he made his will on 27 January 1869, was of sound mind, memory, and understanding. In one sense, the first phrase, sound mind, covers the whole subject; but emphasis is laid upon two particular functions of the mind, which must be sound in order to create a capacity for the making of a will; there must be a memory to recall the several persons who may be fitting objects of the testator’s bounty and an understanding to comprehended their relationship to himself and their claim upon him. But for convenience the phrase ‘sound mind’ may be adopted, and it is the one I shall make use of throughout my observations. Now you will naturally expect from me a definition, or at any rate an explanation of the legal meaning of the words ‘sound mind,’ and I will give to you such assistance as I am able, either from my own reflections on the subject, or by the aid of what has been said by other judges whose duty it has been to consider this important question before me. I must commence, however, by telling you what these words did not mean. They do not mean a perfectly balanced mind. If so, which of us would be competent to make a will? Such a mind would be free from all influence of prejudice, passion, and pride. But the law does not say that a man is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean, or even bad motives.We do not sit here to correct injustice in that respect. Our duty is limited to this, to take care that, and that only, which is the true expression of a man’s real mind shall have effect given to it as his will. In fact, this question of justice and fairness in the making of wills in a vast majority of cases depends upon such nice and fine distinctions, that we cannot form, or even fancy that

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we can form, a just estimate of them. Accordingly, the law of England everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued. In this respect the law of England differs from that of other countries. It is thought better to risk the chance of an abuse of the power arising from such liberty than to deprive men of the right to make such a selection as their knowledge of the characters of the past history, and future prospects of their children or other relatives may demand, and we must not attempt to correct its application in a particular case by knowingly deviating from it. I have said that to take care that effect is given to the expression of the true mind of the testator, and that of course involves a consideration of what is the amount and quantity of intellect which is requisite to constitute testamentary capacity... If a man has not contracted the ties of domestic life, or if, unhappily, they have been severed, a wide deviation from the ordinary type may be expected, and if a man’s tastes induce him to withdraw himself from intercourse with friends and neighbours a still wider divergence from the ordinary type mat be expected; we must not easily assume that because a man indulges his humours in unaccustomed ways that he is therefore of unsound mind.We must apply some other test than whether or not the man is very different from other men. Now the test which is usually applied, and which in almost every case is found sufficient, is this: Was the man labouring under delusion? If he laboured under delusion, then to some extent his mind must be unsound. But though we have thus narrowed the ground, we have not got free altogether from difficulty, because the question still arises, what is a delusion? On this subject an eminent judge who formerly presided in the court, the jurisdiction of which is now exercised here, Sir J Nicholl, in the famous case of Dew v Clark and Clark (3 Add Eccl 79) says: ‘One of the counsel (Dr Lushington) accurately expressed it; it is only the belief of facts which no rational person would have believed that is insane delusion.’ Gentlemen, in one sense, that is arguing in a circle, for, in fact, it is only saying that a man is not rational who rational who believes what a rational man would believe; but for practical purposes, it is a sufficient definition of a delusion, for this reason – that you must remember that the tribunal that is to determine the question (whether judge or jury), must, of necessity, take his own mind as the standard whereby to measure the degree of intellect possessed by another man.You must not arbitrarily take your own mind as a measure, in this sense, that you should say, I do not believe such and such a thing, and therefore the man who did believe it is insane. But you must of necessity put yourself this question, and answer it: Can I understand how any man in possession of his senses could have believed such and such a thing? And if the answer you give is, I cannot understand it, then it is of the necessity of the cease that you should say the man is not sane. Sir J Nicholl, in another passage (3 Add page 90) gives what appears to me to be a more logical and precise definition of what delusion is. He says, ;The true criterion, the true test, of the absence or presence of insanity I take to be the absence or presence of what, used in a certain sense of it, is comprisable in a single term, namely delusion. Wherever the patient once conceives something extravagant to exist which has still no existence whatever but in his own heated imagination, and wherever at the same time, having once conceived, he is incapable of being, or at least

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of being permanently reasoned out of that conception, such a patient is said to be under a delusion in a particular half technical sense of the term; and the absence or presence of delusion so understood forms, in my judgement, the true and only test or criterion of absent or present insanity. In short, I look upon delusion, in this sense of it, and insanity to be almost, if not altogether, convertible terms, so that a patient under a delusion, so understood, on any subject or subjects in any degree is, for that reason, essentially mad or insane on such subject or subjects in that degree.’ I believe you will find that that test applied will solve most, if not all, the difficulties which arise in investigations of this kind. Now gentlemen, of course, there is no difficulty in dealing with cases of delusion of the grosser kind of which we have expression in this court. Take the case of Mrs Thwaites (Smith v Tebbitt (Law Rep 1 P and M 398)). If a woman believes that she is one of the Trinity, and that the gentlemen to whom she leaves the bulk of her property is another person of the Trinity, what more need be said? But a very different question no doubt arises where the nature of the delusion which is said to exist is this, - when it is alleged that a totally false, unfounded, unreasonable, because unreasoning, estimate of another person’s character is formed. That is necessarily a more difficult question . It is unfortunately not a thing unknown that parents – and in justice to women I am bound to say it more frequently the case with fathers more than mothers, - that they take unduly harsh views of the characters of their children sons, especially. That is not unknown. but there is a limit beyond which one feels that it ceases to be a question of harsh unreasonable judgement of character, and that the repulsion which a parent exhibits towards one or more of his children must proceed from some mental defect in himself,. It is so contrary to the whole current of human nature that a man should not only form a harsh judgement of his children, but that he should put that into practice so as to do them injury or deprive them of advantages which most men desire above all things to confer upon their children. I say there is a point at which such repulsion and aversion are themselves evidence of unsoundness of mind. Fortunately the case is rare. It is almost unexampled that a delusion consisting solely of aversion to children is manifested without other signs which may be relied on to assist one in forming an opinion on that point.

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Vijay Chandrankant Shah v the Public Trustee Nairobi Court of Appeal civil appeal number 63 of 1984 (Kneller JA Platt and Gachuhi AJJA) (A will during a period of lucid is valid.)

CASE NO. 32

The testator executed a will leaving his estate to the widow and appointing her the executrix of the will. The will was challenged on the ground that it was made under suspicious circumstances and therefore it was not valid. It was alleged that the deceased was in such a state at the time the will was allegedly made that he was not in a position to make a will. Evidence was taken and the court found that the will was properly made by the testator who was of sound mind at the material time. An appeal to the Court of Appeal was dismissed.

PLATT AJA: At the hearing of these contentious proceedings the parties drew up issues for determination which were: 1.

The signature on the will; and

2.

The capacity of the testator.

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But as Mr Satish Gautama pointed out, he undertook to propound the will entirely and so he set himself the following issues: 1.

Did Kishore sign the will?

2.

If he did, on what date?

3.

Having found the date, was it properly attested?

4.

Did he have the animus?

The learned judge found that Kishore had indeed signed the will which actually took place on the 6 November 1975 although it had been prepared by Mr Trivedi, an advocate, on 3 November 1975. The learned judge then found that it had been properly attested by Dr CP Patel and Nurse Kurian, even though the latter had left the country and her address was not known. According to the learned judge the main question was whether Kishore had the mental capacity to make this will on the 6 November 1975. On this point he held that the burden, which was a heavy burden, lay on the propounder to satisfy the conscience of the court that the testator was of sound and disposing mind. It was said that this burden becomes heavier where the circumstances excite the suspicion of the court, and it is for the propounder to remove such suspicion. Where the propounder of the will is the principal beneficiary under it, it is the duty of the court to scrutinise the evidence of the propounder vigilantly and jealously. (Wintle v Nye [1951] 1 All ER 252 and followed in Re Stott (deceased) [1980] 1 All ER 259). there is perhaps a little more to be said on the directions which the court must give itself, although the tests set out by the learned judge are adequate. Having said that, the conclusion of the learned judge can be stated in his own words:

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‘at the end of the day, I have carefully scrutinised every aspect of the evidence in this case. I have come to the conclusion, without hesitation, that the propounders of the will have discharged the heavy onus which lies upon them to prove due execution and attestation of the will and that Kishore was of sound and disposing mind when he willed all his property to Usha. The conscience of the court as to that is absolutely satisfied.’

That being so, the learned judge dismissed the caveat lodged by the infant Vijay through his guardian ad litem and granted letters of administration with the will annexed to the Public Trustee. the appeal by the infant Vijay in a sense echoes the fact that the learned judge having rightly held that the party propounding the will, namely, the Public Trustee on behalf of Mrs Usha Shah, had a heavy burden to discharge, nevertheless failed to consider the evidence and the lack of evidence in dispelling doubts and suspicions created by the appellant’s witnesses, with regard to the signing of the will, the capacity of the testator to make the will, and the attestation of the will. The memorandum continues to give instances of this failure. The learned judge did not look for corroboration of the evidence of Dr CP Patel, the only witness to testify as regards the signing of the will. the propounders of the will had failed to call Mr Shirish Shah or Mrs Saramma Kurian, the other two witnesses who were alleged to have been present at the signing of the will. Mr Shirish Shah was available at the time of the trial to give evidence. It has now been discovered where Mrs Kurian lives in Philadelphia, USA, and a preliminary application was made before the hearing of the appeal, to attempt to introduce additional evidence from her. The court dismissed this application and it will be its first duty to explain the reasons for doing so.

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On the question of the deceased’s physical and mental condition, the learned judge was said to be wrong to dismiss the evidence of Dr Ahluwalia and in preferring the evidence of Drs CP Patel, KC Patel and Kodwovalla. With regard to the testator’s intent to dispose of the property, it was suggested that the testator had never asked anyone to make a will for him; that it was prepared on the instructions of Mr Shirish Shah, the brother of the beneficiary of the will, Usha; and the sole evidence was that of Dr CP Patel, who was the only one who read the will to the testator in the Intensive Care Unit in the hospital. The learned judge was wrong on this evidence to come to the conclusion that the testator wanted to make the will; and finally it was said that on a number of points the evidence was unreliable and should have stirred the conscience of the court. It is instructive to consider the decision in Wintle vs. Nye (supra). As the House of Lords pointed out it is one thing for the learned judge to have correctly stated the law and the burden of proof upon the propounder of the will, and it is another for the learned judge to have carried out a proper application of law to the facts before him. For instance Sellers, LJ, who was upheld by the House of Lords, though he had dissented in the Court of Appeal, observed at page 557 that: ‘having stated the law and the issues accurately and clearly the question to my mind is whether the judge, as he continued the summing up, complied with the approach to the investigation which the law, as stated, required. It is in this respect that I find that it fell short of the law’s requirements. In my judgement whether it is regarded as a whole or is analysed in detail the summing-up provided, and encouraged in the minds of the jury, a benevolent and sympathetic consideration of (the respondent’s) evidence and in no way led the jury to a critical or hostile approach to what he said in his evidence and to what he would appear to

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have done. In effect the summing-up of the evidence substantially negatived the law which the learned judge had in terms enunciated.’

That passage seems to sum-up the appeal in the present case, to the extent that the learned judge did not critically appraise the evidence and, so it is said in effect, he did not properly understand the suspicion which arose in the case and which he did not vigilantly and jealously examine. It is argued that the court did not look for corroboration of the evidence of Dr CP Patel who was the only witness to testify as regards the signing of the ill; and that the propounders of the will failed to call Mr Shirish Shah and Miss Kurian. the learned judge, it is said, ought to have drawn an adverse inference from this failure at least in the case of Mr Shirish Shah. From what has been said above, Mrs Kurian’s evidence could not be called at the time of the trial and no inference arose on that point. Mr Shirish Shah’s position is different, since he could have been called, being available at the time of trial. The evidence of Dr Patel as to what occurred and what part Mr Shirish Shah played was as follows: ‘I asked him (Kishore) if he had read the document – he said yes. He said he wants to sign it. I called the Staff Nurse Mrs Kurian. In the presence of both of us he signed the will. he used a biro. Staff Nurse Kurian signed after him, and then I signed the will.There were three copies. Kishore, Kurian and I signed all copies. I took all three copies with me to put my rubber stamp on. I did that on the same day. I gave all three copies back to Shirish Shah – he called for them at my surgery. Shirish Shah handed one back to me. (Ex 3) and it has been in my possession ever since. Shirish was in the intensive Care Unit when was signed. Only Shirish was there – no other relative.’

(Later on cross-examination of Mr D N Khanna): ‘It was all done at Intensive Care Unit in presence of 3 of us, i.e. Kishore, nurse and me.’

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Lunch hour was not chosen deliberately so that mother is not there – how would I know if she was there or not.’

(To Mr Nowrojee): ‘I reported progress of the patient to relatives if asked. Most of the time I reported to Shirish Shah – he seemed to be most concerned. All relatives were concerned but I spoke most to Shirish.’

Where were the relatives at the Intensive Care Unit? Some were outside, some inside. Sister Haria said that they allowed only close relatives in Intensive Care Unit. It seems to have been a ward with beds for more than one patient, since on 9 November 1975 Kishore was disturbing other patients as the ‘nurses’ notes,’ show for that date. The evidence suggests that only those actually present at Kishore’s bed and involved in the will were Dr CP Patel, Staff Nurse Kurian and Kishore. It is not clear what Shirish Shah could have said about the attestation of the will, and counsel cross-examining him did not bring out his exact position, or what he could see. On the other hand Mr Shirish Shah had been present for the signing of the insurance matter earlier on that day. It is a fair inference that had Shirish been actually present at the bedside of Kishore, Dr CP Patel would have said so.

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All this arises out of the apparent quest for corroboration of a single witness. The foundation of this whole process is the attestation clause. It reads: ‘signed by the above-named Kishore Jagjivan Kachra Dharamshi Shah as his last will in the joint presence of himself and us who at his request and in such joint presence have hereunto subscribed our names as witnesses: As it stands that is a clear clause complying with the requirements for attestation.

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At the first stage of contentious proceedings, it is necessary only to have an affidavit of due execution from one of the attesting witnesses. If there is no attesting witness, then another person who had been present at the time the will was executed may swear an affidavit, as Dr CP Patel was available, Mr Shirish Shah does not have to come in at this stage. Then the case may be set down for hearing, and evidence is heard. ‘If the will on the face of it appears to be duly executed, the presumption is omnia esse rite acta; even though there should be an attestation clause omitting to state some essential particular, e.g. that the will was signed in the joint presence of both witnesses.’ (See Williams on Executions and Administrations, (14 ed) page 91). The strength of the presumption is shown by the fact ‘even when the attesting witnesses give evidence in contradiction of each other, the court may give credence to the affirmation rather than to the negative testimony.’ (Williams (supra) page 92; and Re Vere-Wardale (1949) page 395). This is a further indication why Mrs Kurian’s supposed evidence need not be damaging to the case of the propounders as has been suggested. Nor is it a case of seeking corroboration there is a perfectly good attestation clause and proof by one of the attesting witnesses, that it is correct...what use would the evidence of Mr Shirish Shah have been, as it was not in evidence that he saw the will executed? The caveator brought out evidence doubting the presumption, but only by cross-examination, and that on a point which was not proved to be true. Indeed if there is suspicion against Mr Shirish Shah and Dr C P Patel, it is all the more likely that they would try to present a prefect attestation. The situation as Sister Haria left it, having been asked by Kishore to call Dr C P Patel because Kishore wanted to sign the will and having handed the will to Dr C P Patel, and having handed her duties to Nurse Kurian, show that the basic situation was favourable to Dr C P Patel’s account of what happened thereafter. The hand writing expert found that the signature on the will was the same as that of Kishore’s signature on other documents. The judge was within his rights to accept that the will was properly attested and executed on 6 November 1975. The next problem is the medical evidence of Kishore’s physical and mental condition. The appellant/caveator submitted that Dr Ahluwallia’s evidence should not have been rejected so lightly. On the other hand, the evidence of Drs CP Patel and KC Patel and Kodwavalla should not have been relied upon without psychiatric evidence. No memory test or other tests were carried out by the said doctors. At this stage, I will deal only with the medical side of this evidence. If the doctors are unreliable witnesses aliunde, then no doubt reliance should not be placed on them on that basis alone. The defect of Dr Ahluwallia’s position is that he did not see Kishore at all in the Intensive Care Unit. He read the doctors’ and nurses’ notes. His opinion was that in the last ten days Kishore was not generally of sound mind and body, but that Kishore may have had lucid intervals. He thought that Kishore would be in a hypnotic state; that some drugs clouded his thinking; and generally he would not know what he was

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doing regarding serious questions concerning his legal and funeral affairs. But it was immediately put to him that he was not in a proper position to judge. He answered that it would have made a world of difference if he had attended the patient. He was not in the same position as the doctors who attended Kishore. Kishore must have had lucid intervals especially on 6 November 1975, when he was clearer during the day. Dr CP Patel was a friend of his, a good practitioner and a man of integrity. If Drs Kodwovalla, CP Patel and KC Patel al said that Kishore was clear in mind on 6 November 1975, he was not in a position to contradict that. Standing back from that evidence, it is clear that Dr Ahluwallia was describing a sick man, one who had been drinking ‘corrosive’ alcohol before he was shot. He disputed with Dr CP Patel whether there was cirrhosis of the liver; Dr Ahluwallia thought Kishore suffered from that disease; Dr CP Patel thought that the liver had merely been injured by the gunshot. But there is no dispute that Kishore had diabetes, syphilis, and he had developed jaundice and anaemia. He had renal failure precipitated by the shooting injury. He was in a septicaemic state and an equivocal condition. That catalogue of horrors would, of course, impress a doctor looking merely at the record, because of the seriousness of the situation. Nevertheless, two factors stand out very clearly. Despite all these handicaps, the records show that the 6 November was a good day for Kishore. Dr Ahluwallia admitted that. secondly, Dr Ahluwallia did not distrust the opinion of his colleagues who actually saw the patient...The learned judge preferred the evidence of those who saw Kishore, and that must have been the best available evidence.

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That is the general situation. Particular points included the effect of pethidine, loss of memory and hypnosis. As to the first, none was given on the 6 November 1975. Kishore had had a satisfactory night between 5 and 6 November. He had rested well from the day of 5 November and 6 November the rhyles tube was removed, as well as the drain on the left side. The learned judge was right that medically the 6 November was Kishore’s best day. Mentally Kishore appeared able to deal with the will according to Drs CP Patel, KC Patel and Sister Haria. The doctors and nurses were anxiously watching Kishore and even if they were not psychiatrists it is their business to notice accurately the state of their patients. Restlessness and confusion were noticed at times in their report. The 6 November 1975 was the day when Kishore had his most lucid period. His condition encouraged the doctors. The removal of the tube and drain indicates steps towards recovery. Dr CP Patel recalled that Kishore was able to joke with him over the will, to the effect that he was not going to die in any case. There is nothing in the record or recollection of these witnesses to indicate any reason why Kishore was not able physically to sign the will, or to know what he was doing. All the evidence is the other way. As far as hypnosis is concerned, the most dangerous source must surely be Mr Shirish Shah, as far as the appellant is concerned. But that idea is dispelled because Kishore did not sign the will on the 3 November after Shirish Shah had brought the will for Dr KC Patel to read to Kishore. On 6 November Kishore asked to deal with the insurance matter and then later the will. The initiative came from Kishore. Kishore had a private period of 15 minutes on the 6 November while Dr CP Patel attended to another patient. There was no apparent pressure on Kishore to sign either

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from Mr Shirish Shah or Dr CP Patel. It was an extremely… short and simple will leaving everything to Usha. It was not difficult to read or understand. Kishore had already once decided not to sign the will on the 3 November and he could have taken the same steps on the 6 November. But he decided to sign it on 6 November. One comes back to Dr Ahluwallia’s important concession, that he could not challenge the observations of the other doctors who attended Kishore. Rupaben held the view that Kishore could not physically sign, and did not sign the will. She gave the impression that she was with Kishore a great deal. But Sister Haria put Rupaben’s evidence in perspective, sister Haria said that Rupaben was allowed to see Kishore for a few minutes every day, Dr CP Patel was not aware of it. According to him, she may have been outside. Obviously the doctors and Sister Haria knew more about Kishore’s condition than Rupaben. Certainly it must be an exaggeration that Kishore was not physically in a position to sign, because his hands were free and functional. His mind was also clear.

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It is said then, that the medical witnesses were untruthful. There were some discrepancies in the evidence. Having looked at them in their context of the whole case they are surely not of importance.The more important examples seemed to affect Dr KC Patel and what happened on 3 November.The time of the second operation is given in three different ways. But there is no doubt that there was a second operation in the middle of the day on 3 November and that there was time for Dr KC Patel to read this very short will to Kishore before it.There is said to be a discrepancy as to the custody of the will. The learned judge discussed it and his conclusion is sound. But whatever can be said of the memory of the witnesses the medical records are there. Apparently the medical witnesses did not feel obliged to discuss the will and its effect with Kishore, and had Kishore not called for it, it would have remained unexecuted. The totality of the medical evidence clearly supported the propounder of the will as to its execution on 6 November 1975 and was not disturbed by either the opinions of Dr Ahluwallia, Rupaben nor Mr AB Shah, the latter only speaking of the 30 October 1975. The testator being thus clear in mind, did he wish to make a will? The appellant argued that the testator did not instruct anyone to make a will. There was only the evidence of Mr Trivedi, who prepared the will on the instructions of Shirish Shah.The learned judge, it is said, was wrong on the evidence to conclude that the testator had made up his mind to make a will. It is the successful insinuation by Mr Shirish Shah of the insurance matter on the morning of 6 November 1975, whereby Kishore transferred insurance money to Usha; and also the will, which Mr Shirish Shah had asked Mr Trivedi to draw up on 3 November, and had had read to Kishore by Dr KC Patel before the second operation; which must have disturbed Rupaben. Then, too, probably the date of 3 November when it was made, and 6 November when it was executed, excited suspicion. One must bear in mind that Usha, the sister of Mr Shirish Shah, was Kishore’s wife and sole beneficiary. One can understand the feelings of Rupaben and her side of the family... There is also the delay in bringing the will forward which is odd. But there is no doubt that Kishore wanted to make a will. Mr AB Shah was instructed by Rupaben’s side; but he did not continue for some unknown reason after 30 October 1975. Three relatives including Mr Shirish Shah instructed Mr Trivedi. Mr Shirish Shah did not act

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by himself. The learned judge thought that Kishore would have said ‘Don’t be silly I do not want to make any will’ if that had been his position, when Dr KC Patel read the will to him on 3 November before the second operation. With respect I doubt whether Kishore was in a sufficient state of wellbeing on 3 November to have acted in that robust fashion. But he did just as well, by more gently putting it aside, saying that he would ask for Dr CP Patel’s advice first. So Kishore went into the second operation without making a will. When the operation was apparently successful, on 6 November he called for his will. It is Sister Haria’s evidence that Kishore wanted to make a will, that was confirmed to Dr CP Patel by Kishore. On 6 November Kishore could certainly have discarded the will. there was very clear evidence upon which the learned judge could find that Kishore wanted to make a will. he had the will read to him twice. He read it himself. Surely, the only conclusion can be that he intended to inherit Usha, just as he had provided for her by transferring the insurance money to Usha. That occurred just two or three hours before he executed his will. If that was a normal transaction, why was the execution of the will not of the same vein?

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Finally there are the suspicions set out in ground 6. Usha was attacked for remarrying after a few months. Consider Usha’s position their marriage of ten years was childless, at risk from his syphilis attached to a drunken diabetic ruining his health. That can only have been extremely disagreeable. She married Suketu Shah rather too quickly perhaps. But she has proved herself by bearing a child. Speaking for myself, I find her haste; if a fault, a very human failing. She wanted to escape from Kishore’s family. I am not surprised. It may well be that the learned judge was too outspoken in disbelieving Rupaben outright, that there had been quarrels between Kishore and Usha. Knowing the situation I would be surprised if there were none, having in mind that there are usually some disagreements between spouses, even those who are in good health. In the sad situation of Kishore, there must have been some troubles. But even Rupaben’s evidence does not go the length of arousing such suspicion, that in no circumstances could Kishore have inherited Usha, had he been of sound mind. A small point, not made much of at the trial, but which I notice, is that Usha visited Kishore at the Intensive Care Unit a good deal, as was observed by Sister Haria. He did not send her away. Nobody has said that he did not want to see her, or that he quarrelled with her in hospital. It is a point which not too much should be made, but this neutral situation does nothing to encourage any idea of great animosity, such that Kishore could not possibly pass the inheritance to Usha. On the other hand, another small point may well be that Kishore would know that Rupaben would never hand over the trust money to Usha, just as he himself had never entered into his patrimony. If Usha was to get anything there had to be a will. I was sorry that the appellant felt it necessary to attack Dr CP Patel for coming from England to give evidence, and that, to save his personal reputation. All these little points, the query why Dr CP Patel kept a copy of the will, the fact that he put on a rubber stamp in his office, or that Kishore wanted to consult him, they strike me not so much as besmirching Dr C P Patel’s integrity (accepted clearly by Dr Ahluwallia) as illustrating an extreme, almost desperate attitude on the part of the appellant’s family. If it was not wrong to visit Nurse Kurian in Philadelphia, why was it wrong for Dr

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CP Patel to come from England? He was the only attesting witness whose address was known. He had to come if possible; and why should he not rubber stamp the will and keep a copy? Is this fraudulent? Looking back over the whole of this evidence carefully and making my own valuation of it, I am quite satisfied that the conscience of the court should not be disturbed by this will. It is probably true that Usha would not have been able to retain her bequest after her remarriage to Sukatur Shah unless there had been a will in this form. But it is also true that the testator made this will, that he knew what he was doing, and that he wanted to make this will, which was in line with the transfer of the insurance property to Usha on the same date. Kishore made the will when he thought he would not die. unfortunately he did. I would uphold the whole of the learned judge’s decision, and dismiss this appeal with costs. GACHUHI AJA: The evidence of Sister Saramma Kurian would not have been that of an expert witness that would be preferred to that of the doctors who gave evidence. It was to contradict the evidence of Dr CP Patel, Dr KC Patel, Mr Youssef Kodwovalla and Sister Sushila Rajni Haria. Dr Ahluwallia who had not seen the deceased was not in a position to contradict the evidence of other doctors.

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The question that can be posed here is who is the person in a position to testify to the mental faculty of a patient and is worth of belief? Is it a doctor and sister? I would have thought that the evidence of a doctor is preferable and more reliable to that of a sister, nurse, or lay person. There is no dispute that the will was validly executed and if there were any doubt then the evidence of handwriting expert is available. Kishore must have given instructions to draw a will. This is supported by the evidence of Mr AB Shah It is unfortunate that Mr Kanti Shah was not called to give evidence about these instructions. Kishore executed the assignment of his insurance policy for the benefit of Usha in the morning. this is not queried. Later on, he told Sister Haria to call Dr CP Patel as he wished to sign his will. he must have known that the will was ready for execution. Dr Patel read the will to him and left it with him for 15 minutes when he went to see another patient. When Dr Patel came back Kishore signed the will in the presence of Sister Kurian and of Dr Patel. Kishore must have been clear in his mind as to what he was doing. if he did not wish his wife to benefit from his estate he had time to refuse to execute it. I do not accept that he signed it to get rid of nuisance, as Mr Khanna had submitted by way of suspicion. To my mind, Kishore wished his wife to benefit from his estate which, due to her having not had a child, she would not benefit otherwise than from this will. It is an undisputed fact that Kishore’s mother Rupaben had been withholding the distribution of the estate inherited from Kishore’s grandfather. Who knows whether this had upset Kishore? He had been kept out of his entitlement for so long. In making the will it is only the wish of the testator that need be looked at. Other members of the family need not know of the existence of the will or the contents of it during the testator’s lifetime.

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John Kinuthia Githinji v Githua Kiarie and others Court of Appeal civil appeal number 99 of 1988 (Gachuhi, Gicheru and Muli JJA) (Where it is alleged that the deceased was seriously ill at the time of executing a will, any person challenging the validity of the will must lead evidence to show that the illness affected the testator’s mind to the extent that the testator did not know what he was doing when he made the will)

CASE NO. 33

The deceased had made a will before her death, leaving the estate to her children. The will was challenged by a person who was related to the deceased by fact of having married a daughter of one of the deceased’s brothers. The challenger used to help in managing the deceased’s property. He led evidence that he helped the deceased acquire the property of the estate, and that he was also responsible for the deceased when she was admitted in hospital, and when she died, he was also responsible for her funeral arrangements and expenses. He claimed that the will was not made by the deceased, and that the alleged beneficiaries were not the children of the deceased. Oral evidence was taken as to the circumstances under which the deceased made her will. The court held that the will was properly executed by the deceased.

GICHERU JA: In Lemage v Goodban, (1865) LR 1 P and D 57 at page 60, Sir J P Wilde observed that:

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‘The will of a man is the aggregate of his testamentary intentions, so far as they are manifested in writing, duly executed according to the statute.’

And presently under section 3(1) of the Law of Succession Act, Chapter 1609 of the Laws of Kenya, the Act, it is ‘the legal declaration by a person of his wishes or intentions regarding the disposition of his property after his death, duly made and executed according’ to the Act. In its construction therefore, it is useful to remember the words of Lord Esher, MR in In re Harrison,Turner v Hellard, (1885) 30 ChD 390 at pages 393 and 394 wherein he said this: ‘there is one rule of construction, which to my mind is the golden rule, viz, that when, a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not intestacy. This is the golden rule.’

9

he judgement appears to be founded on the provisions of the Law of Succession Act, yet the deceased died in 1977 before the Act came into force in 1981. Although the same is correct in its discussion of the relevant legal principles, it is based on a statute that was at the time not in force. The relevant statute should have been the African Wills Act, as read with the Indian Succession Act, 1865 both of which were repealed following the coming into force of the Law of Succession Act on 1 July 1981. It is to be noted though that the provisions of the Law of Succesion Act on these matters mirror verbatim those of the foregoing statutes.

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It is, however, essential to the validity of a will that at the time of its execution the testator should know and approve of its contents: for where a will, rational on the face of it, is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, to have been made by a person of competent understanding; but if there are circumstances in evidence, which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it. See Hastilow v Stobie, (1865) LR 1 P and D 64 and Symes v Green, (1859) 1 Sw and Tr 401. Indeed, the observations of Cockburn CJ in Banks v Goodfellow, (1870) LR 5 QB 549 at pages 563, 564, 565, 566, 567, 568 and 569 are instructive in this regard... They are currently recognised by the provisions of section 5(3) and (4) of the Act which later are in the following terms: ‘5(3) Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.’

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By a Chamber Summons dated 13 April 1988 and expressed to be taken out under sections 11 and 76 of the Act; rules 44(1), 54 and 55 of the Probate and Administration Rules made under the Act, and section 3A Chapter 21 of the Laws of Kenya, the applicant sought to have the will of Esther Nduta Kiarie, the deceased, annulled by the superior court.The will was purportedly made on 8 March 1977 and the deceased died on 28 April 1977 – 51 days later... From his supporting affidavit, it would appear that the appellant’s family relationship to the deceased was by his having been married to the daughter of the deceased’s brother. He also claimed that he managed the deceased’s estate from 1969 to 1981 when he handed over the management of the same to Messrs. Kiania Njau and Company, Advocates. The appellant further claimed to have assisted the deceased in the purchasing of the properties LR 36/7/330 and LR 36/7/341 situated at Eastleigh section 7, Nairobi. According to him, the deceased had no children and Lucy Wamaitha and Samuel Kiarie described in her purported will as her daughter and son respectively were not her children. One Kinyanjui and Peris Nyambura were the servants of the deceased before she died. Prior to her death, the deceased had been sick for a long time and had been admitted at the Kenyatta National Hospital and subsequently at Mater Misericordiae Hospital, Nairobi where she died two months after her admission there. On the deceased’s death, the appellant claimed to have been responsible for her burial and funeral arrangements and expenses and thereafter continued to manage her estate until 1981 as is mentioned above. During that period, no will was produced by anyone claiming any interest in the estate of the deceased and according to him therefore, none was in existence The appellant’s viva voce evidence in the superior court was, where material, similar to what was contained in his affidavit in support of his application as I have attempted to outline above save for his claim that the deceased’s alleged will was not hers. His complaint therefore was that the said will was obtained by fraud and that it was not duly signed executed and attested since when it was allegedly made the deceased was seriously ill with cancer of the duodenum which illness affected her

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mental capabilities. On this account he challenged the validity of the alleged will and sought its annulment since about two weeks before the deceased died she had said that her affairs including those of her properties would be looked after by him.

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Satpal Singh Sadhu is an advocate of the High Court of Kenya and has been in practice in Nairobi since 1962. He had known the deceased since 1968 and had acted for her in the purchase of the properties LR 36/7/330 and LR 36/7/341 referred to above. According to him, one of these properties was purchased by the deceased with a loan from Savings and Loan Limited and he drew the discharge after she had repaid the loan while the other property was purchased after he arranged a private loan for her which she subsequently refunded and the said property was discharged. Before 8 March 1977 the deceased sent for him while she was hospitalised at Mater Misericordiae Hospital, Nairobi. He visited her at this hospital and she gave him instructions to draw a will for her. The instructions in this regard comprised of the details of how she wished to dispose of her properties. In accordance with these instructions Mr Sadhu thereafter drew a will. On 8 March 1977 he went with it to the hospital above mentioned and in the presence and hearing of the Sister on duty in St Joseph’s Ward where the deceased was admitted he explained its contents to the deceased in Kiswahili. According to him, at that time the deceased was mentally alert and she understood his explanations of the contents of the will. conscious and knowing what she was doing, the deceased executed the will by appropriately signing it as is required by law in the presence and seeing of Mr Sadhu and the sister on duty, Mrs M Wamae, both of whom and in the presence of each other subscribed their respective names and addresses thereunto as witnesses to its execution. In the words of Mr Sadhu, if the deceased was not capable of knowing what she was doing he would not have got her to sign the will. That will according to him, contained what the deceased had instructed him to put in it. Thereafter, he kept the will and when the deceased died he accordingly informed Mr Joseph Muiruri Githongo of P O Box 47089, Nairobi who was the deceased’s accountant and was named in the will as one of its two executors and trustees. In November 1981 the deceased’s will was handed over to Mr Nicholas Kiania Njau of Messrs Kiania Njau and Company Advocates for purposes of probate which was subsequently granted with the will attached. From his testimony Mr Sadhu appears to have been very conversant with the affairs of the deceased before she died. According to him, he knew that the appellant used to collect rent from her houses. He also knew that the deceased had a daughter and a son. This was confirmed by the second respondent who at the hearing of the appellant’s application in the superior court tendered in evidence her birth certificate and that of her brother, the third respondent, both of which indicated that the deceased was their mother. Indeed, in that court she said that she grew up knowing the deceased to be her mother and according to Kikuyu customary law she was named after the mother of the deceased while the third respondent was named after the father of the deceased. Her reference and that of her brother, the third respondent, as daughter and son of the deceased in the latter’s will was, therefore not a misrepresentation. Impressed by the evidence of Satpal Singh Sadhu, advocate, and that of Nicholas Kiania Njau, advocate, the trial judge, AK Akiwumi, J (as he then was) in a ruling which was erroneously intituled ‘Judgement’ made the following decision:

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‘the applicant had dismally failed in his application which I can only describe as brazen and scandalous and which is hereby dismissed with costs to the second and third respondents against the applicant which shall be taxed and paid forthwith. The injunctions which I granted on 13 June 1988 is hereby lifted.’

Against this decision, the appellant now appeals to this court the essence of his grounds of appeal being a complaint against the trial judge’s rejection of his application as is set out above. At the hearing of this appeal on 8 November 1994, the appellant submitted that the deceased had no children and having been the son-in-law of her brother and manager of her properties, he was entitled to all her properties as the same was left to him by her. He contended that the deceased’s alleged will was forgery. On this regard, the appellant was supported, perhaps for obvious reasons, by his father-in-law, the first respondent. The submission of Miss Wangari for the second and third respondents was that the deceased’s will was duly attested and subsequently proved without contest. Indeed, according to her, the first respondent transferred the deceased’s properties to the beneficiaries of the will before the appellant came into the picture. She thought therefore that the appellant’s appeal was without merit. Before the amendment of the Births and Deaths Registration Act, Chapter 149 of the Laws of Kenya by Act number 7 of 1990, section 26(3) and (4) of the said Act read as follows: ‘26(3) the Registrar-General shall, on payment of the prescribed fee, furnish a certificate in the prescribed form of the birth of any person complied in the prescribed manner from the records and registers in his custody.

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(4)

a certified copy of any entry in any register or return purporting to be sealed or stamped with the seal of the Registrar-General shall be received as evidence of the dates and facts therein contained without any other proof of such entry.’

From these provisions, it seems to me that the production of birth certificates in the superior court in respect of the second and third respondents as is outlined above put the issue of their being children of the deceased beyond argument. Their reference in the deceased’s will as a daughter and son of the deceased respectively was therefore not an untrue allegation of a fact essential in point of law. Regarding the appellant’s complaint that Mr Sadhu was not a competent witness to attest to the deceased’s alleged will having drafted the same, currently, section 3(1) of the Act defines a competent witness as ‘a person of sound mind and full age.’ It can never be in doubt that when Mr Sadhu attested the deceased’s will on 8 March 1977 he was of sound mind and full age. This alone constituted him a competent witness to attest that will: and since the appellant had no quarrel with the competency of the second attesting witness to the will – Mrs M Wamae – it follows that in law the said will was duly attested by at least two competent witnesses. What now remains of the appellant’s complaint is whether or not the deceased’s alleged will was duly made and executed according to law. At the outset, it is useful to remind oneself of the words of the President of the Probate Division in Morrel and others v Morrel and others, (1882) 1P D 68 at pages 70, 71, 73 and 74 where when addressing the jury had this to say:

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‘But there is another case, and this case is somewhat of that kind. It is the case of a man who feels himself unable to express his intentions in a legal and formal manner, and who confides to somebody else the duty of expressing them. I should say that in the majority of cases where a lawyer is employed that is the state of things. The testator prefers to rely on the judgment and skill of a trained mind to express his wishes rather than to run the risk of selecting words himself, and when that is the case he adopts the words used by that person just as though they were his own. When you employ a lawyer either to draw a will or a deed which requires skill you rely on his skill and, of course, you rely on his integrity, and when he tells you ‘I have drawn this will according to your instructions’ and he puts it before you to sign, do you not adopt his words as expressing your wish? I do not desire, as far as this is a question of fact, to take it out of your hands, but, speaking for myself, it appears to me the man does approve of the words which his solicitor puts in for him. And this seems to divide itself again into two parts, did he approve of the particular words being used as the expression of his will, that is, did he approve of such passages as his attention was particularly directed to, or generally did he approve the whole will as expressing his wishes? When a man leaves his solicitor to draw a will does he not say in effect, I do not know how to do it; I rely on you and I accept your words as though I had the power to do it.’

and in Parker and another v Felgate and Tilly, (1883) 8 PD 171 at page 174 the President of the same Division said that:

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‘a person might no longer have capacity to go over the whole transaction, and take up the tread of business from the beginning to the end, and think it all over again, but if he is able to say to himself,’ I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;’ it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgement that is sufficient.’

It is not in doubt that the deceased was seriously ill with cancer of the duodenum at Mater Misericordiae Hospital, Nairobi. While in that condition she sent for her advocate, me Sadhu, who she gave instructions to draw a will the details of which comprised of how she wished to dispose of her properties. In accordance with those instructions, Mr Sadhu drew the will and on 8 March 1977 he explained its contents to her in Kiswahili in the presence and hearing of the sister on duty in the ward where she was admitted. At that time, the deceased was, according to Mr Sadhu, mentally alert and she understood his explanations of what was contained in the will. He swore that consciously and knowing what she was doing, the deceased duly executed the will by signing it in the manner I have outlined earlier in this judgement. The deceased entrusted and chose to rely on the judgement and skill of the trained mind of her counsel, Mr Sadhu, to express her wishes and intentions in a legal and formal manner. After doing this, Mr Sadhu did not stop there. He went further and explained to her what he had formally drawn in accordance with her instructions. Mr Sadhu’s integrity in this regard was therefore never in doubt. What he had thus drawn was the expression of the deceased’s wishes and intentions. And whereas it was freely accepted that the deceased was seriously ill with cancer of the duodenum, no evidence was led in the superior court that that illness affected her mind so as not to know what she was doing when she made the will. Indeed, Mr Sadhu was categorical in his evidence in that court that if the deceased was not capable of knowing what she was doing he could not have got her to sign the will. What else could have been said

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about the making and execution of this will? It follows from the propositions of law that I have tried to set out at the beginning and towards the close of this judgement that the deceased’s will was duly made and executed according to law. To this end, any other impeachment on it must fall by the wayside. In the result, I think that the appellant’s appeal is unmeritorious and I would dismiss the same with costs. GACHUHI JA: The disposal of a deceased’s estate is so important that a division of the High Court is set up to deal with probate and administration matters. Parliament, in order to streamline the law in this country, enacted the Law of Succession Act (Chapter 160) of the Laws of Kenya (the Act) to deal with this aspect.The Act has laid down the procedure so that everybody who is entitled to the estate of the deceased will have the right to come to court to establish his/her claim which will be determined according to the law. Section 4 of the Act provides: 1.

Except as otherwise expressly provided in this Act or by any other written law: (a)

Succession to immovable property in Kenya of a deceased person shall be regulated by the Laws of Kenya whatever the domicile of that person at the time of his death.

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Any person who is of sound mind and not a minor may dispose of all or any of his free property by will.This is provided for in section 5 of the Act. A will may be made either orally or in writing. The Act also provides the form of a will and the requirement of its execution. Section 9 of the Act provides that no oral will shall be valid unless it is made before two or more competent witnesses and the testator dies within a period of three months from the date of making the will. The exception to the validity of an oral will is in the case of armed forces or merchant marine during a period of active service. The section also provide that not all wills shall be valid if and so far as, it is contrary to any written will which the testator has made whether before or after the date of the oral will and which has not been revoked. Such oral will shall be proved by evidence of the witnesses. One way of claiming the estate of the deceased is for one to bring himself within the ambit of being a beneficiary under the will. The other aspect of claims is under the provision of the law where a person dies without making either a written or oral will.This will be in the case of intestacy.The distribution in intestacy shall be governed by the law or custom applicable to the deceased’s community or tribe as the case may be.10 Where a person feels that he or she is entitled to a share of the estate, he or she shall have to apply to court either challenging the will or as a dependant. The Act further provides that on an application by or on behalf of a dependant that the disposition of the deceased’s estate by his will or by gift is not such as to make reasonable provision for that dependant, the court may order that such reasonable provision as the court may think fit shall be made for the dependant out of the deceased’s net estate. Section 29 defines ‘dependant’ to mean:

10

This is not the correct legal position on distribution upon intestacy of an estate of a person dying after the Law of Succession Act came into force. Under the Law of Succession Act the estate of an intestate is to be distributed in accordance with Part V of the Act. Customary law only applies to a restricted class of intestate estates, those that are subject to sections 2(2), 32 and 33 of the Law of Succession Act..

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(a)

The wife or wives or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death.

(b)

Such of the deceased’s parents, stepparents, grandparents, grandchildren, stepchildren, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters as were being maintained by the deceased immediately prior to his death; and

(c)

Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

The deceased made a will shortly before her death bequeathing her movable and immovable properties to her two children, second and third respondents. That will was proved according to law. The appellant who has no relationship other than through marriage he being married to a daughter of the first respondent, and the first respondent being the brother of the deceased, was assisting the deceased in managing her properties. He challenged the will and the dispositions to the second and third respondents claiming that the second and third respondents were not children of the deceased. He did not succeed because evidence adduced clearly indicated the second and third respondents were her children. Even if they were not, under the meaning of dependants, they were the children of the deceased whom he had taken into her family as her own.11 Their birth certificates showed that they were the children of the deceased. The learned judge of the superior court never erred in holding that the second and third respondents were the children of the deceased because this is what the law provides. In ground six of his grounds of appeal the appellant argued that because he buried the deceased, he was entitled to inherit. In his evidence in the superior court the appellant stated: ‘The deceased left everything to me.’

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This statement could not amount to an oral will. The appellant did not state how and on what occasion the deceased orally gave everything to him. Even if what the appellant stated is true, that statement could not amount to an oral will, because as Cotran recorded in the Restatement of African Law at page 15 that: ‘A person may make his will in his old age or on his deathbed. He calls a meeting of all his close relatives from his mbari, other muhiriga relatives and close friends and declares orally how his property is to be distributed item by item, and also declares who shall be his muramati.’

The present Act which was enacted in 1971 but came in operation on 1 January 1981, section 9(2) provides: ‘no oral will shall be valid if, and so far as, it is contrary to any written will which the testator has made, whether before or after the date of the oral will, and which has not been revoked as provided by sections 18 and 19.’

I am aware that the appellant does not accept that the deceased made a will, but this is a fact which was proved which holding of the superior court cannot be faulted. 11

This is not the correct legal position. Under section 3(2) of the Law of Succession Act, only a child taken into the family by a male person can be treated as a child for succession purposes. Indeed the Court of Appeal in,Willingstone Muchigi Kimari v Rahab Wanjiru Mugo Nairobi Court of Appeal Civil Appeal Number 168 of 1990 ( Gichuhi Muli and Akiwumi JJA.) held that under section 3(2) of the Law of Succession Act only a male person can in formally adopt or take in a child and accept him as his own..

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Though there was no evidence of customary inheritance, it was known in Kikuyu custom that where there was a taboo, only then someone outside of the family (a stranger) could bury a deceased. In that case that person would be entitled to seven goats from the estate of the deceased but not all the deceased’s properties. If it was an unmarried woman who had adopted children, those children took priority over everyone else. (See Cotran’s Restatement of African Law – Kenya 2). I have had the advantage of reading the judgement prepared by Gicheru JA and I am in full agreement with him that the appellant has no way of inheriting the deceased. This appeal fails and the same is dismissed with costs. Vaghella v Vaghella [1999] EA 351 (Mfalila, Samatta and Lugakingira JJA) (The validity of a will is dependent on the testamentary capacity of the testator and from the circumstances attending its making)

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CASE NO. 34

The deceased was the mother of the appellant and the respondent. In her last will, she bequeathed a certain house to the respondent and appointed him the administrator of the estate.When he sought confirmation as administrator in accordance with the terms of the will, his brother opposed the petition, arguing that in an earlier will the deceased had bequeathed the house to the two brothers jointly, and therefore the second will was suspect. His position was that the mother was physically and mentally incapacitated at the time she was purported to have made the second will. It was held at the High Court that the circumstances under which the will was made did not render it void, as the evidence on record showed that the deceased was fully in control of her faculties at the time of making the will. An appeal to the Court of Appeal was dismissed.

MFALILA, SAMATTA and LUGAKINGIRA JJA: Some general observations are appropriate at the outset. It is settled that in order for a will to be legally enforceable it has to be valid, and its validity in turns derives from the capacity of the testator and the circumstances attending its making. A lunatic cannot make a valid will during the subsistence of his insanity and a will obtained by fraud or one improperly executed cannot count for a valid testament. The essential of testamentary capacity were laid down in Banks v Goodfellow (1870) LR 5 QB 549 at 565, in these terms: ‘... a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound, would not have been made.’

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In the case before us, the appellant’s side have been saying that the deceased did not answer to those tests on account of old age and disease, and as particularly testified to by Dr Nkulila. We shall revert to the argument shortly. Presently, some remarks on the burden and standard of proof. Mr D’Souza argued, and quite rightly, that the burden to prove the validity of a will rests on the party propounding it and this burden is heavier where the testator’s capacity is in question. In the case of Smee and others v Smee and Corporation of Brighton (1879) 5 PD 84, he cited to us, the President of the Court directed the jury (at 91) that: ‘...anyone who questions the validity of a will is entitled to put the person who alleges that it was made by a capable testator upon proof that he was of sound mind at the time of its execution. The burden of proof rests upon those who set up the will. And a fortiori, when it has already appeared that there was in some particular undoubtedly unsoundness of mind, that burden is considerably increased.’

Again in Jarman on Wills (8 ed) at 51, it is stated: ‘In cases of weakness of mind arising from the near approach of death, strong proof is required that the contents of the will were known to the testator, and that it was his spontaneous act.’

We are equally in agreement with Mr Ngalo that the law presumes sanity, and no evidence would be required to prove sanity unless it has been impeached. We wish to point out, however, that the deceased’s state of mind was questioned in paragraph 7 of the appellant’s affidavit in support of the caveat; therefore Mr D’Souza’s argument therefore was not without basis.

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The trial judge considered the testatrix’s capacity although she did not expressly address the issues of onus and standard of proof. She referred to Dr Nkulila’s evidence and his concession that patients may deliberately refuse medication even though mentally incapacitated. She referred to Mr Kinabo’s evidence and the deceased’s reminiscences on the 1966 feline. She also noted that Dr Nkulila last saw the deceased on 17 November and conceded that he could not know her state of health on the next day. Although she did not then proceed to state in express terms that the deceased had the necessary capacity, the finding was necessarily implied. After our own appraisal of the evidence and the law, we are unable to come to a different view. To begin with, we are conscious of the importance of expert opinions in the field of medical issues. In Nkinga Hospital v Theodeolina Alphaxed civil appeal number 49 of 1992 (UR), also cited by Mr D’Souza, this court said: ‘On such professional and technical issues, courts should not make assumptions based on nothing but conjure. Opinions of professional and technical people in the field is invaluable to enable the court to make an informed finding.’

We adhere to that view but wish to draw attention to the word ‘invaluable’ in the passage which, in our view, reaffirms the settled position that opinion evidence is by no means conclusive.The opinions of experts are relevant but not binding; the weight to be attached no these opinions would depend on the nature of each case. Moreover, there are many matters of common experience in respect of which persons with no special qualifications are permitted to state what is really a matter of opinion. Such an opinion is no less relevant than the opinion of a trained person. The following passage in the judgement of the Ontario Court of Appeal in the case of R v German (1947) 4 DLR 68, says it all:

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‘No doubt, the general rule is that it is only persons qualified by some special skill, training, or experience, who can be asked their opinion upon a matter in issue. The rule, however, is not an absolute one. There are a number of matters in respect of which a person of ordinary intelligence may be presumed to give evidence of his opinion ...(of example) where a witness has been asked whether a person was sober or not, and has been allowed to state what is after all ., a matter of opinion.’

In the instant case there is compelling evidence by non-professionals testifying to the deceased’s soundness of mind. She has the mind to send for a lawyer on 17 November. She had a conversation with the lawyer lasting an hour and during which she appears to have been so relaxed that she even recalled a small incident 26 years in the past. Then came the signing on the next day. The witnesses to the will were a Mr Suresh Nathwani and Mr Khetia. These are leading members of the Hindu community, to which the deceased belonged, the former being chairman and the latter secretary of the Hindu Union. Mr Khetia who gave evidence was emphatic that the deceased was of sound mind and understood the intents of the will. if we may allude to the phraseology of Cockburn CJ in Sugden v Lord St Leonards (1876) 1 PD 154, [187480] All ER it seems to us utterly impossible to suppose that responsible persons such as these would permit themselves voluntarily to subscribe their hands to a will not consciously made. Our minds revolt from arriving at any such conclusion, and we feel bound to reject it. Mr D’Souza argued that it could not be asserted that the deceased understood the will because Mr Kinabo gave it to Mr Nathwani to explain it to her, but Mr Nathwani does not appear to have communicated her reaction and he was not called to testify. We think, with respect, learned counsel misunderstood Mr Kinabo’s evidence on that aspect. our own appreciation of the evidence is that after reading the English-written will. Mr Nathwani talked to the deceased (in Gujerat) apparently to ascertain for himself that she understood it. He did not have to report back unless he was not satisfied. Mr Kinabo said:

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‘I gave the English written will to Mr Nathwani to read and he talked to the deceased perhaps to ascertain the accuracy of the will to make sure the deceased understood her will.’

It is logical to conclude that Mr Nathwani’s curiosity was satisfied for he proceeded to witness the will and even to assist the deceased to thumbprint it,. In view of all these factors and Dr Nkulila’s concessions which, above all, left the possibility that the deceased’s refusal of medication could have been deliberate, we think there was no justification for a finding that the deceased was of sound mind and a capable person when she gave instructions for and signed the second will. It is essential to go further in view of the attributes of capacity set out earlier, the reasoning of the psychiatrist and the argument advanced before us. As shown earlier, Dr Nkulila stated in exhibit D1 that the deceased ‘seemed much incapacitated both physically and mentally; that her judgement was obviously inappropriate as she refuse all medication.’ Now, assuming that the deceased had in fact developed delusions about Dr Nkulila’s medication, it did not follow in law that she had lost capacity in all other spheres, in the same way as it does not follow that a patient who refuses medication is necessarily mentally incapacitate. To be precise, it did not follow that she was also incapable of making a will. In order for delusion to be material in the testamentary context, there must be a connection between the will and the delusions, the poisoning of affections and perversion of the sense of right. In Smee’s case (supra) the President also said (ibid):

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‘A few years ago it was generally considered that if a man’s mind were unsound in some particulars, the mind being one and indivisible, his mind was altogether unsound, and therefore that he could not be held capable of performing rationally such an act as the making of a will. a different doctrine subsequently prevailed...It is this. If the delusions could not reasonably be conceived to have had anything to do with the deceased’s power of considering the claims of his relations upon him and the manner in which he should dispose of his property, then the presence of a particular delusion would not incapacitate him from making a will.’

In that case, it was not in dispute that the testator was of unsound mind. Additionally, it was possible to link his delusions to the two wills made by him. In the first will he excluded his relatives and left his property to his wife absolutely on account of a delusion that they were beneficiaries to his supposed trust money which he had been robbed by his father, in the second will he again excluded his relatives and gave his property to his wife for life or widowhood, and devised and bequeathed the residue to the corporation of Brighton to set up a public library on account of a delusion that he was a son of George IV who in his life had taken such deep interest in the town. The jury had no difficulty in deciding that the testator was of unsound mind when making both wills and the wills were declared invalid. Similarly in Singh and others v Amirchand and others [1948] 1 All ER 152 AC 161, a disease-stricken Indian resident of Fiji made a will excluding his nephews in India in favour of strangers and stating ‘I declare that I have no next kin or blood relations in Fiji or elsewhere who are known to me.’ The Privy Council held that the will was the product of a man so enfeebled by disease as to be without sound mind or memory at the time of execution, and that the disposition of his property under it was the outcome of the delusion touching his nephews’ existence. Their Lordships stated (at 170): ‘A testator may have a clear appreciation of the meaning of a draft will submitted to him and may approve of it, and yet he was at the time through infirmity or disease so deficient in memory that he was oblivious of the claims of his relations, and if that forgetfulness was an inducing cause of his choosing strangers to be his legatees, the will is invalid.’ Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

The totality of these decisions, to quote again from Smee’s case (at 92), is that: ‘The capacity required of a testator is, that he should be able to rationally consider the claims of all those who are related to him, and who, according to the ordinary feelings of mankind, are supposed to have some claim to his property as it is to be disposed of after his death.’

What is the position of the instant case? Assuming, as we have said, that the deceased had delusions about medication, was the delusion an operating factor when she went about making the second will? Did it poison her mind and render her oblivious of the appellant, her elder son? We are unable to find evidence to that effect and no such evidence was referred to us. On the contrary, it seems that the deceased had the appellant in contemplation when making the will, and deliberately excluded him, for it is apparent that she gave a reason for that will. According to Mr Kinabo: ‘The deceased revoked the original will because the defendant (appellant) refused to return her gold and jewellery which she had deposited with the daughter of the defendant.’

Mr Sabaya suggested that Mr Kinabo must have obtained this information from the respondent.We see no basis for the suggestion.There was no evidence of any discussion about the will between Mr Kinabo and the respondent; on the other hand, there was

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evidence of an hour’s conversation between Mr Kinabo and the deceased, and since Mr Kinabo had drawn up the earlier will and had it in his custody, the reason for his revocation must have been the inevitable subject of the conversation. We are satisfied that the deceased was under no delusions either with regard to her property or in relation to her children when making the second will and considering all we have said we are satisfied that there was sufficient evidence proving to the required standard the deceased’s capacity to make the will. Finally, the trial judge addressed the issue of fraud and did not find it established. She distinguished this case, and correctly in our view, with the case of Matata v Matata (1981) TLR 23, a classic case of fraud where the deceased’s thumb mark on a deed of transfer was literally robbed as he lay gravely sick and speechless. In the instant case, the deceased had to be assisted to thumbprint the will because she was both weak and illiterate, but she was alert, seated and talking. Even healthy illiterates are assisted in similar manner almost every day in our courts.

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... in the final analysis we agree with the trial judge that the second will was valid. It was made by a capable person; it was not influenced by any delusions; it was properly executed. The burden cast upon the respondent/plaintiff had therefore been discharged.

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In the Matter of the Estate of James Ngengi Muigai (Deceased) Nairobi High Court succession cause number 523 of 1996 (Koome J) (A testator is presumed to be of sound mind, by virtue of section 5(3) of the Law of Succession Act, unless it is proved to the contrary, the burden of proving lack of sound mind is on the person alleging it. The same principle applies with respect to undue influence)

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CASE NO. 35

Following the death of the deceased, persons describing themselves as the wife of the deceased and her eldest daughter, moved the court for grant of letters of administration intestate, and citations were issued upon other persons who were also members of the family of the deceased. The citees on their part petitioned for a grant of probate of the written will of the deceased, and since no objection was lodged against the petition, a grant was made. Whereupon the family that had applied for grant of letters filed an application for the revocation of grant of probate, ostensibly on the grounds that it was founded on a false will. The principal dispute centred on the validity of the will, although at the hearing of the application several other issues came up. In the end the court concluded that the will was properly executed and attested, the deceased was of sound mind and disposition, and that no undue influence had been exercised on him whatsoever.The court also made orders, under section 26 of the Law of Succession Act, for reasonable provision for the family members who were found to have been not reasonably provided for. The court invoked the inherent powers of the court as granted by section 47 of the Law of Succession Act as well as rule 73 of the Probate and Administration Rules.

KOOME J: ...I have been able to identify the following issues for determination: 1.

Whether the deceased was possessed with the mental and physical ability or capacity to write a will on 29 April 1994

2.

Was the will attested according to the law?

3.

Is the will a forgery or was the testator subjected to undue influence?

4.

Did the will fail to provide for the deceased dependants or to make adequate provision for dependants.

5.

Are the following persons who are not mentioned in the deceased will dependants of the deceased:

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(a)

Elizabeth Mumbi, deceased former wife

(b)

Peter Mugo

(c)

Peter Nyoike

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And if so, should the court make reasonable provision for them. Section 11 of the Law of Succession Act Chapter 160, provides for the formalities and what constitutes a valid written will as follows: ‘No written will shall be valid unless: (a)

The testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the directions of the testator;

(b)

The signature or mark of the testator or the signature of persons signing for him is so placed that it shall appear it was intended thereby to give effect

(c)

to the writing of a will;

(d)

The will is attested by two or more competent witnesses ; each of whom must have seen the testator sign or affix his mark to the will or have seen some other person sign the will in the presence and by the direction of the testator or have received from the testator a personal acknowledgement of his signature of that other person and each of the witnesses must sign the will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.’

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I have underlined the above because the objectors strongly submitted that since Professor Gitau was not present when the deceased signed the will, the attestation did not comply with the law. The provisions of the law allow the will to be witnessed by the two witnesses at different times but each should sign in the presence of the testator when the testator acknowledges his signature. The objectors referred to the Halsbury’s Laws of England Volume 50 paragraph 261 which provides that the testator’s signature must be made or acknowledged by him in the presence of two or more witnesses present at the same time. In the testator’s presence, each witness must attest and sign the will. I think the Law of Succession Act Chapter 160 is clear on attestation and it is not possible for me to be persuaded by this text in view of the express provisions of section 11 of the Law of Succession Act. This takes me to the crucial issue of whether the deceased was possessed with the requisite mental capacity to make testamentary disposition. The evidence by the objectors especially, Eunice, Beatrice and Margaret show that the deceased was in very poor health and this is supported by the evidence of Dr Silverstein who treated the deceased except for a period of about one year within which period the will was signed . So was the deceased mentally impaired by reason of sickness so as to be able to make a testamentary disposition. I refer to section 5(3) of the Law of Succession Act which provides: ‘any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is at the time of executing the will in such a state of mind ., whether arising from mental or physical illness, drunkenness, or from any other course, as not to know what he is doing.’

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Section 5(4): ‘The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who alleges.’

The burden of proof in respect of this allegation lies with the objectors.

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I have carefully considered the evidence by the objectors and especially by Dr Silverstein, it is clear from his testimony that the deceased was dementing and he had diagnosed this problem in the course of his treatment of the deceased over the years. What concerns me in his evidence, is that, he did not specifically detail the diagnosis in his notes, although he said that the diagnosis of dementia would stigmatise the patient, I find that he used rather bold language in his notes to describe the deceased other problems and I doubt that Dr Silverstein would have had difficulties to mention dementia if that was the deceased problem that he was attending to furthermore I have noted the following: (a)

Dr Silverstein did not specifically see the deceased between June 1993 to October 1994.

(b)

He stated that a dementing patient may have lucid moments when he can make rational decisions.

(c)

He did not carry out specific clinical tests of the deceased such as Professor Ndetei said in his commentary that for one to diagnose dementia the following tests should be carried out: 1.

Collateral information from a relative who lived with the patient.

2.

The mental state examination (MSE).

3.

Mini mental state examination in suspected dementia.

4.

Neurological examination finding.

5.

Radiological examination.

6.

Laboratory work up.

Dr Silverstein admitted that he did not carry out these tests but from the history of his long treatment of the deceased he did not have to carry out these tests as the deceased would present himself with physical conditions such is a confusion incontinent and disorientation. However he said these would have been symptoms of other conditions. According to the textbook by Herold Kaplan page 249: Dementia is characterised by a loss of cognitive and intellectual abilities severe enough to repair social or occupational performance.The full clinical picture consists of the impairment of memory, abstract thinking and judgement and some degree of personality change. The disorder may be progressive or static, permanent or reversible. An underlying organic cause is always assumed, although in rare cases it is impossible to determine a specific organic factor. The reversibility of a dementia related to the underlying pathology and to the availability and application of effective treatment.’

In view of this evidence the objector’s submitted that the burden of proof that the testator had the capacity to execute the will shifted to the petitioner as discussed in the case of Cleare v Cleare (1869) LR 1 P and A 655 where Lord Penzance held at page 557:

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‘by law, it is not sufficient that the testator be of memory when he makes the will to answer familiar and usual questions, but he ought to have a disposing memory, so as to be able to make a disposition of his estate with understanding and reason...’

Under paragraph 1015 Halsbury’ Laws of England Volume 30: ‘The burden of establishing testamentary capacity is on the person propounding the will. If a receiver has been appointed in relation to property of a testator mentally disorder at the time when he makes his will, the will is not invalidated merely by reason of the receiver’s appointment being correct.’

According to Professor Gitau and Pabary who attested the deceased signature, the deceased looked normal. He was physically incapacitated due to joint pains and hypertension, the other objectors did not see the testator on this day when he signed the will, perhaps Mr Kanyanga his cook could not specifically reveal this day in any event this witness has no medical training. I have no reason to doubt the testimony of Professor Gitau and Mr Pabary, even though the evidence of Mr Pabary has been dismissed by the counsel as inconsistent, I am of the humble view that such inconsistencies to the mistake of whether the deceased was in the house of Ngengi at Lavington or Runda are not material considering that these vents took place 10 years ago. Similarly I am not able to make out why Professor Gitau would lie and mislead this court about the testator’s mental ability to make a testamentary disposition. His evidence was also criticised by the objectors because he did not produce medical notes and reports to support his evidence that he was treating the deceased. With tremendous respect, this witness was summoned by the objectors; I am not aware whether they served him with a notice to produce the records. He stated that he kept a patient’s card. I think Professor Gitau did not have anything to lose or benefit by telling this court the state about the deceased mental capacity and ability to execute the will.

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The other issue for consideration is whether the deceased was subjected to undue influence. Under part II of the Law of Succession Act section 17 provides: ‘a will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void.’

It is Ngengi who suggested that the deceased should write a will and obtained the counsel of the family priest the Rt Rev Gatu to convince the deceased to write the will. The deceased was living in the house of Ngengi he was indisposed and was suffering from several ailments. Was he therefore subjected to undue influence? Counsel for the objectors referred to the textbook Theobald on Wills (4 ed) by J B Clark page 39 which describes undue influence as: ‘In a probate court undue influence means coercion, i.e. the testator is coerced into making a will (or part of a will) which he does not want to make. Undue influence takes many forms. At one extreme there may be violence to, or imprisonment of, the testator. At the other the pressure exerted by talking insistently to a weak and feeble testator in the last days of his life

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may so fatigue his brain that he may be induced for..., to give way to the pressure persuasion or advice is legitimate but coercion is not; ‘a testator may be led but not driven.’

According to the same author the legal burden of proof of undue influence or fraud always lies on the person alleging it. Although the objectors did not lead evidence to show that the deceased was subjected to undue influence and by who, the submissions especially by Mrs Thongori were quite clear that the deceased was driven to write the will. I am not satisfied that they have discharged this responsibility of proving this aspect for the following reasons: 1.

The deceased had donated a power of attorney to Ngengi that enabled him to ‘Be my lawful attorney and agent, with full powers and authority for me and in my name…’ during the deceased’s lifetime.

2.

Ngengi requested a respected citizen a family priest the Rt Rev Gatu to convince the deceased to write a will.

3.

Mr Pabary said that he visited the deceased about three times to discuss the draft will with the deceased before it was finally approved and signed.

4.

The deceased requested that Professor Gitau be present when the will was signed, and lastly I have also taken note that Ngengi was the deceased eldest surviving son and since the deceased was elderly and ailing there is nothing strange that he stayed with his son. This is usually the case for many elderly Africans.

In view of the above I am not satisfied that the deceased was ‘driven’ but ‘led’ into signing the will. Moreover, if one wants to use coercive methods, in my humble view they do not use the survives of a priest and the head of a church.

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The next issue for consideration is whether the will is a forgery. Again the burden in this respect of proving forgery lie with the objectors. The will was submitted before the Criminal Investigations Department at the request of the objectors following a criminal complaint. The expert document examiner subjected the documents to examination and compared the alleged forged signature with the deceased known signatures. The evidence of Antipas Nyanjwa was not all challenged and nor did the objectors produce a witness to give evidence on the deceased alternative signatures.This witness confirmed that the deceased signature is firm and similar to previous signature. The sum total of the above findings that the deceased signature in the will is similar to the previous signature of the deceased as stated by the document examiner is that the deceased was not subjected to undue influence to sign the will, that the will was properly executed and attested by Professor Gitau and Mr Pabary, on a balance of probabilities. I find that the deceased was also possessed with the requisite mental capacity to make a testamentary disposition on 28 April 1994 when he signed the will.

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I now turn to the issue of whether the deceased failed to make provision for his dependants namely Elizabeth Mumbi, Mugo and Nyoike. The other objectors who were provided for did not give evidence on the inadequacy of their provisions. In any event… I do not wish to question the deceased choice of the bequest given to his daughters. Mr Kirundi, counsel for the petitioner constantly reminded this court that the only issues for determination are to do with the validity of the will. This indeed should be the proper procedure since this matter relates to objection proceedings on the validity of the will. The objectors however adduced evidence on the issue of dependency. The evidence of Elizabeth Mumbi and Nyoike, dwelt on the issue of dependency.12 The procedure on the mode of hearing objection to an application for grant of representation is provided under section 67, 68 and 69 of the Law of Succession Act. In this regard if there are issues to do with provision for dependants such issues are dwelt with under section 26 of part III of the Law of Succession Act. If there are issues to deal with the deceased ownership of certain properties or shares in properties the law is also clear on the procedure applicable. The circumstances of this case make me invoke the inherent powers donated to the this court vide the provision of section 47 of the Law of Succession Act and rule 73 of the P and A rule, whereby this court is empowered to make orders for the end of justice and to prevent the abuse of process.13 I have taken into consideration that this matter has taken considerable period of time to be determined. Some witnesses travelled as far as the United States of America. Elizabeth Mumbi is fairly elderly indeed she was brought in a wheelchair to this court and going by the copy of the marriage certificate found in the DC number 75 of 1973, if she get married to the deceased when she was 25 years old in 1933, she is perhaps about 97 years old.

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Asking this witness to return to court to make an application for reasonable provision for a dependant would be oppressive. It is for the above reasons that I have decided to deal with the issue of dependency as well instead of deferring it to a later date. As regards the dependency of Elizabeth Mumbi, I will recall her evidence whereby she testified that she separated from the deceased from 1942 due to what she called constant beatings by the deceased. She moved to her own mother’s property at Dagoretti where she lives to this day. 12

13

There was no application before court brought under section 26 of the Act; there was therefore no basis upon which the court could have considered evidence on dependency.The application before the court was for the revocation of the grant of probate on the grounds that the grant was founded on an invalid will. The issue of dependency was irrelevant to these issues, and the court should have guided the parties accordingly. Under section 26 the court can only make orders on dependency where there is an application properly brought under that provision. The court is not bound to consider irrelevant evidence and give orders based on such irrelevant evidence merely because the parties have led such irrelevant evidence. The inherent powers of the court are invoked in cases where there is no clear provision. In this matter the law provides clear procedure.The inherent powers cannot be properly invoked to apply Part III of the Law of Succession Act suo moto..

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According to her, she was not aware of any divorce proceedings. However, since there is a certificate of making of decree nisi absolute that was issued on 11 July 1975, I do not wish to belabour the issue. I am satisfied that Elizabeth Mumbi was a former wife of the deceased as provided for under section 29 of the Law of Succession Act which provides: ‘For the purposes of this part ‘dependant’ means: (a)

The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

Elizabeth Mumbi said that although she was separated and moved from the deceased home at Gatundu the deceased continued to give her money for her needs and those of her children Mugo and Nyoike. I am satisfied that this court should make a reasonable provision for the deceased’s former wife There was very strong opposition by counsel for the petitioner against giving any consideration to Mugo and Nyoike. Mugo of course did not give evidence but Nyoike gave evidence of how he has only known the deceased as the symbolic father. From his own evidence the deceased played a very minimal role in his life. I say so because, the deceased did to play any role when he got circumcised or initiated into manhood, he also did not play any role when he got married or when he conducted his marriage ceremonies. According to the counsel for the petitioners the deceased disowned Mugo and Nyoike in the divorce proceedings and indeed there is no dispute as this is found in the divorce file. However legal issues were raised regarding the status of children who are born during the period of separation but before the decree absolute is issued.

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Mr Kariuki counsel for Nyoike referred to section 118 of the Evidence Act, which provides: ‘the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.’

Further counsel drew the attention of this court to the provisions of section 12 of the Births and Deaths Registration Act Chapter149: ‘no person shall be entered in the register as the father of any child except either at the joint request of the father and mother upon the production of the registrar of such evidence as he requires that the father and mother were married according to law or, in the case of applicant, in accordance with some recognised custom.’

According to Mr Kirundi counsel for the petitioner, the deceased swore an affidavit on 18 December 1973 in the divorce proceedings and stated as follows: ‘I JAMES MUIGAI JOHNSTONE make oath and state as follows: 1.

That I am the petitioner in the above cause.

2.

That was as stated in paragraph (2) of the petition, the respondent left the matrimonial home in 1942 and since then there was never and has not been any resumption of cohabitation.

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3.

That over one year of the respondent leaving the matrimonial home she gave birth to a child Mugo of whom I am not and could not be the father. Thereafter, the respondent gave birth to another child of whom I could not possibly be the father.

4.

That I have made enquiries in the neighbourhood with a view of ascertaining the identity of the person with whom the respondent committed adultery but have been unable to identify the identity.

In answer and cross-petition that was filed by Elizabeth Mumbi on 7 March 1974 she states under paragraph 3: ‘the respondent denies that the petitioner is not the father of Mugo Muigai as alleged in paragraph 4 of the petition, but states that the said Mugo Muigai was born on 10 February 1943 and was a child in ventre la sa maere in June 1942 when the respondent left the petitioner.’

Although the paternity of Mugo and Nyoike is highly contested at least the legal position of Mugo could be covered by the provisions of the section 118 of the Evidence Act. I do not wish to dwell with this controversy save to say that both of these gentlemen have used the name of the deceased and passed out as the name of the deceased children.14 I am intrigued by the fact that the deceased who belonged to the high éclair of the society during the yester years of male chauvinism when men took pride particularly of their male children could disown two of his sons and fail to participate at all activities of their lives.15

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Whichever the case, I am satisfied on a balance of probabilities that Mugo and Nyoike are children of the deceased under section 29 of the Law of Succession Act. These persons were not provided for in the deceased’s will and I wish to follow the reasoning of the Court of Appeal Gicheru JA (now the Chief Justice) in the case of John Kinuthia Githinji v Githua Kiarie and others Nairobi CA number 99 of 1989 whereby the observations of Cockburn, CJ was reiterated as in the case of Banks vs. Goodfellow 1870 LR as follows: ‘the law of every civilised people concedes to the owner of property the rights of determining by his last will, either in whole or part, to whom by the effects which he leaves behind him shall pass... A moral responsibility of no ordinary importance attaches to the exercise of the right given. The instincts and affections of mankind, in the vast majority of instances, will lead men to make provisions for those who are nearest to them in kindred and who, in life have been the object of their affection...The same motives will influence him in the exercise of the right of disposal when secured to him by law. Hence arises a reasonable and well warranted expectation on the part of a man’s kindred surviving him, that on his death effects shall become theirs, instead of being to strangers. To disappoint the expectation thus created and to disregard the claims of kindred to the inheritance is to mock the common sentiments of mankind and to violate what all men ...deeming an obligation in moral law...’

14

15

The court did not cite any authority to support this finding. A child is not, under the Law of Succession Act or under case law, to be regarded as a dependant of a deceased person merely on account of ‘passing out’ as a child of the deceased. Section 29 is clear on dependent children; it makes no reference at all to children who ‘pass out’ as children of the deceased. Furthermore, the court did not define what it meant by ‘children passing out’ as children of the deceased. This assertion by the court is not supported by any evidence. The deceased had during his lifetime denied these children as his. They were born after their mother left the deceased, and it would appear that no evidence was presented showing that he sired them or accepted them as his own.

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I agree with that passage that the testator has power to dispose of his property but that freedom is not absolute. The expectations of our society in this case could be similar to the above passage, that is, the deceased was expected to make a reasonable provision for his former wife and children. Mugo who is said to have been born in ventre la sa mere and Nyoike who passed out as the deceased son and still believes he is the deceased son,16 should be provided for with reasonable provision for dependency. In this regard, this court should interfere with the deceased’s freedom to dispose of his property and make provision for the disinherited former wife and children. In this regard the court has to take into account the provisions of section 28 in determining the reasonable provision and the nature and amount of the deceased’s property. Going by the petitioner’s evidence certain properties such as the Runda property were not included in the will, although it formed part of the deceased estate. The deceased widow Minnie Ngina subsequently passed away. The deceased properties and what forms part of the estate are stipulated, in the affidavit of the first petitioner sworn on 28 October 1998 which was an affidavit in support of the summons for confirmation, I have taken into consideration that the list of properties which clearly show the deceased had a vast estate. taking all the matters into consideration, and all the circumstances of the dependants, Elizabeth Mumbi, Nyoike and Mugo, and considering their relationships with the deceased, I would award them the property known as House on Runda LR 209/822917 and 10 acres of land at Ichaweri Farm in Gatundu LR number 7785/18 as reasonable provision for their dependency.

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Accordingly these are the orders of the court: 1.

The grant of probate of the written will of the deceased be and is hereby granted to the petitioners and named executors in the deceased will of 28 April 1994.

2.

The petitioners do make reasonable provision for Elizabeth Mumbi, Peter Mugo Muigai and Peter Nyoike Muigai by vesting or transmitting properties known as: (a)

House in Runda LR number 7785/18

(b)

10 acres of land to be excised from farm in Gatundu Ichaweri LR number 7785/18

The properties to be held by Elizabeth Mumbi for life in trust of Peter Mugo and Peter Nyoike in equal shares. This being a family matter let each party bear their own costs. 16

17

Section 29 does not make a child who ‘passes out as a child of the deceased’ or believes himself to be a child of the deceased a dependant of that deceased person. The child who qualifies to be treated as a dependant of the deceased under section 29 is he who is the biological child of the deceased or he that the deceased has taken in and regarded as his own. Nyoike was clearly none of these. The judge states that the Runda property was not included in the will of the deceased and therefore it did not form part of the dispute. It was not before the court. Consequently it was improper for the court to award to the objectors part of the property of the deceased that was not part of the estate the subject of the dispute.

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In the Matter of Philly Nyarangi Otundo (Deceased) Nairobi High Court succession cause number 2078 of 1997 (Aluoch J)

CASE NO. 36

(A person attacking the validity of a will on the grounds of fraud must provide evidence to prove the claim; in the absence of such proof the court is bound to uphold a will as genuine) The validity of the will of the deceased was challenged at the objection stage of a petition for grant of probate on the grounds that the will was a forgery and that the persons named in the will as the executors were strangers to the family. The court took oral evidence, and held that the will was valid as it had been made freely and properly.

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ALUOCH J: I have read the typed proceedings recorded by Malwa J. The persons who gave evidence and were cross-examined were: 1.

Ann Waithereu Kiahagu an advocate of the High Court of Kenya, who drew the deceased’s will, after she had been sent for by one Mrs Jennifer Openda. She took instructions from the deceased in the deceased’s house as she was unwell. She prepared the will which she brought back to the deceased and read over to her, again in the house. This was the day the deceased was due to travel to Germany for treatment. The 2 persons who witnessed the will, Andrew Kipsang Kiptoo and Christine Targok Chesiyna, signed the will in her presence, in Philly’s house. The advocate was again called to go and read the will after the deceased had died and before she was buried. She did as requested and thereafter kept the will until she lodged it in court.

2.

Another witness, Guserwa, confirmed in her evidence in court that the deceased adopted 2 children, who were still minors, and another one called Jacqueline, who was aged over 18 years old. Guserwa confirmed that the deceased was survived by 3 adopted children.

3.

There was also the evidence of Andrew Kipsang Kiptoo. He confirmed that the deceased telephoned her on the day she was due to fly to Germany for treatment. He went to her house and found a number of people.The deceased called him in the bedroom, where she found one Christine Chesma and another lady, introduced as the lawyer. Anthony recalled that the lady lawyer brought out 3 sets of documents which she said was the will. It was headed ‘will’. Anthony confirmed that the deceased, Philly Otundo, signed the will. He signed as a witness after which Christine also signed as a witness. Anthony identified his signature in the will. He wrote his name and signed. He also identified Christine’s signature plus that of the lawyer, as they were signed in his presence. He did not read the contents of the will.

4.

Further evidence was recorded from Christine Chessman, who described the deceased Philly Nyarangi Otundo, as a close friend. She recalled that the deceased called her and she went to her house where she found a lawyer and Kiptoo, in the sitting room. They were called upstairs in the bedroom. Philly was there, and she briefed them about the will, which she then signed. Christine and Kiptoo signed, and then the lawyer signed. She identified the deceased’s signature. It was Christine who drove the deceased to the airport, as she was leaving for Germany that same day.

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5.

Professor Maja Nyasani was the deceased’s first cousin. The two grew up in the same village and went to school together. Professor Nyasani knew the deceased was unwell in 1995 when the deceased told him so, and asked him to assist in identifying a place for treatment, as she was unable to get help from a local doctor. The witness referred the deceased to a hospital in Germany, as he had lived in Germany as a student, and again he had been treated in that hospital when he was shot here in Kenya. Professor Nyasani organised a fundraising meeting (harambee) which raised money to enable the deceased to go to Germany for treatment. He confirmed that the deceased had terminal cancer, and the doctors in Germany were unable to operate on her. Professor Nyasani met the deceased at the airport the day she arrived from Germany. She told him personally that he had made arrangements for her children whom she had adopted. She further told him that she had written a will, which she said was with the lawyer. After the deceased died, Professor Nyasani and his father, were part of the family who gathered to have the deceased’s lawyer read the will, which she did in English, as another lawyer translated the same in Gusii language for the family…. Professor Nyasani recalled that nobody contested the will, as read out. The family went by the wishes of the deceased in the will, and buried her at Lang’ata Cemetery, and not Kisii, as would have been the case customarily. Professor Nyasani wound up his evidence by saying, ‘We all seemed to be satisfied with the will and I am surprised that this year, some people object...’ he identified the deceased’s signature in the will. He was familiar with it. He stated further, ‘I am surprised that the complainants, who are beneficiaries in the will, should doubt the will.’

6.

Rosemary Moraa knew the deceased Philly Otundo, as they were friends. Rosemary was present when the deceased’s will was read out by lawyer Ann Kihangi to friends and family of the deceased Philly. Rosemary was surprised when her name together with that of Catherine were read as administrators. Rosemary immediately obtained a copy of the death certificate, and together with Catherine, they applied for a grant of probate, which was issued on 5 December 1997…

7.

Mark Frank Steward Otundo, described the deceased Philly as his aunt. He lived with her from 1992 in Ngummo Estate, Nairobi. Mark assisted the deceased in compiling a list of her assets, at the deceased’s request. This was before she left for Germany where she was going for treatment. It was Mark who called a lawyer for the deceased, who gave him the name of the lawyer from her documents. Mark met the lady lawyer the day she brought the will which was signed by Kiptoo and Chessman. Mark was present the day the deceased’s will was read out in the presence of nearly all relatives. The lawyer came with the will. Nobody objected to the will. Mark was a beneficiary in the will. Mark answered on questioning that he only compiled the list of assets the deceased told him. He did not include the motor vehicle the deceased was purchasing, because the deceased did not tell him to do so.

Though the objectors challenged the will as fraudulent, they presented no evidence in court to prove their claim and in the absence of this, I am convinced by the evidence on record that the deceased made a will freely, that will was genuine and the deceased disposed of her properties as per the will because of my finding above, I proceed to dismiss with costs the objection to the making of the will, filed by the objectors...

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If there are any known properties of the deceased which were not included in the will, as claimed by the objectors in their pleadings, this issue should be dealt with at the stage of the confirmation of the grant of probate. The property or properties should be made known to the executors who are at liberty to file a further affidavit and present it to court at the stage of confirmation of the grant of probate. ***

4.3 INSANE DELUSIONS A person who is otherwise of sound mind may be labouring under an insane delusion. The court in Dew v Clark (1826) 3 Add 79 said that a person suffers from an insane delusion if he holds an insane belief of particular matter which no rational person could hold, and the belief cannot be eradicated from his mind by reasoning with him. Case number 37 illustrates the application of the principles on insane delusions, how the same affects the validity of a will. In the Estate of Bohrmann, Caesar and Watmough v Bohrmann [1938] 1 All ER 271 (Langton J) (An insane delusion may only affect the validity of part of a will)

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CASE NO. 37

The testator made three codicils to his will giving substantial gifts to various charities. He later began to suffer from a delusion that the London County Council wanted to dispossess him of his house, which it wanted to acquire for hospital purposes. As a result of this delusion he executed another codicil whose clause 2 provided that all references in his will and codicils to English charities should be read as referring to the corresponding American charities. It was found that the testator was suffering from a delusion with respect to the London County Council which affected his dispositions to charity, and therefore the part of his codicil deleting reference to English charities and replacing the same with American charities was invalid, otherwise the unaffected parts were held valid testamentary dispositions.

LANGTON J: The greater portion of the evidence was directed to his incapacity for human affection and his studied neglect and hatred of all his relations. Upon all the reliable evidence in the case, he was a man of very few friendships. He was a man who gave very little in life, and got very little in life, and got very little out of life. It is difficult to find in the whole of his history any individual upon whom he lavished any kind of affection. He was not in any sense a kindly or an affectionate man. It is undisputed that on the smallest provocation he gave way to fits of really ungovernable rage over trivial matters...

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… It will be remembered that the English law is, and always has been, very strongly in favour of any will or codicil which in terms is not unreasonable and shows no sign of mental deficiency, and the law will not tolerate that it should be replaced or destroyed by any decision of the courts unless it is clear that the testator was incapable of making a proper will... ... He was a man whom he, Dr Gillespie, classed – and it is not a classification of his own; it is apparently a well-known medical classification – as a paranoid psychopath... I have to address myself to the question of whether, accepting Dr Gillespie’s evidence to the full, it is within the ambit of a known and well-trusted legal decision, outside which no one has really sought to take me., that best of all guides on this question, the judgement of Sir Alexander Cockburn, CJ, in Banks v Goodfellow (1870) LR 5 QB 549, at page 565: ‘Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgement are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence – in such a case, it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.’

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...This judgement in Banks v Goodfellow (1870) LR 5 QB 549 makes it perfectly clear that the law has recognised as long ago as 1870 that a man may suffer from delusional insanity and yet make a perfectly good will, so long as the delusions from which he suffers have no relation to any testamentary capacity. It is unnecessary to give examples; they will spring at once to anybody’s mind. but it is quite possible to believe – indeed, most people may have one or two sad examples of a person they have come across in their lives – that a person should be victim of a delusion amounting to an insane delusion, but should be completely and perfectly sound upon all questions which have any relation to testamentary capacity My judgment in this case, therefore, will be that I shall declare for the will of 26 November 1926, and for the four codicils, with the exception of cl. 2 of the codicil of 9 September 1932, which should be deleted from that instrument. ***

4.4 BURDEN

OF

PROOF

The onus of establishing that a person was not of the required capacity for the purpose of making a will lies with the person alleging the lack of capacity. Section 5(4) of the Law of Succession Act states: ‘The burden of proof that a testator was, at the time he made his will, not of sound mind, shall be upon the person who so alleges it.’ Cases numbers 35 and 38 illustrate the application of this provision.

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In the Matter of Estate of Jefferson Gathecha, Deceased Nyeri High Court Succession Cause number 75 of 1995 (Juma J) (The burden of proving that a will is invalid lies with the person making the allegation)

CASE NO. 38

The will of the deceased was prepared by his advocate and was executed in the chambers of the said advocate in the presence of several witnesses. It was said that the deceased appeared to be in full control of his faculties although he had been sick. The validity of the will was challenged by some members of his family on the grounds that he had suffered a stroke at about the time of the execution of the will and as such he was too ill to have made the will. The court held that the burden of proving that the will was not valid lay with those challenging its validity and in this case they had failed to discharge that burden. It was further held that despite the unhappiness of some of the family members with the contents of the will, the deceased had the right to dispose of his property in the manner he wished

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JUMA J: Charity Muthoni Gathecha and her son Richard Wamithi Gathecha were the ones who were challenging the validity of the deceased’s will. The burden of proof was therefore on them to prove the forgery or incapacity of the deceased to make the will. An attempt was made to show that the deceased had made another will prior to this one in dispute but the people who were alleged to have been present were not called to testify to this effect and indeed the earlier will was not produced in evidence. It was also alleged that the deceased was too ill to have made a will. Dr Kibuku who was treating the deceased was never called to testify as to his serious illness and incapacity to talk. On the other hand we have evidence from his eldest son and the deceased’s cousin Munene and neighbour Gichuhi who testified that the deceased had been admitted in hospital for two weeks with a mild stroke but he recovered and was going about his duties in the normal manner. Explanation was given as to why it was decided by the deceased’s advocate that he should thumbprint the will instead of signing. No attempt was made to take the will to the experts to confirm indeed if the thumbprint belonged to the deceased or not. It is immaterial whether Richard Wamithi Gathecha was happy with the will or not. The deceased had the right to dispose of his property in the manner he wished. Indeed, he appointed his eldest son the executor of his will and never left anything for him. That was the deceased’s right to do.

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Having listened to the witnesses and the evidence adduced herein, I am satisfied that the will dated 6 August 1991 is the will of the deceased Jefferson Gathecha Taguka and that it was validly executed. ***

4.5 THE CIRCUMSTANCES APPROVAL

OF THE

MAKING

OF THE WILL:

KNOWLEDGE

AND

The Tanzanian Court of Appeal in Vaghella v Vaghella [1999] EA 351 (Mfalila, Samatta and Lugakingira JJA) states that the validity of a will derives from the testatmentary capacity of the testator as well as the circumstances attending its making. In John Kinuthia Githinji v Githua Kiarie and others Nairobi Court of Appeal civil appeal number 99 of 1988 (Gicheru, Gachuhi and Muli JJA), Gicheru JA observed that there is a presumption that where a will is apparently properly executed and attested, it was validly made by a testator who had knowledge of and approved its contents; but if there is evidence which counterbalances the presumption, the court should pronounce against the validity of the document. Essentially, the validity of a will which, on the face of it appears to have been made properly, could be undermined by the circumstances attending its making. The existence of suspicious circumstances, undue influence, mistake and fraud are some of the circumstances which affect the validity of a will which appears superficially properly executed and attested. The statutory basis for this position is section 7 of the Law of Succession Act, which provides that: ‘A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void.’

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(a)

Undue Influence

Cases numbers 39, 40 and 41 are English cases stating and defining the principles relating to undue influence, and discussing the effect of undue influence on a testamentary instrument. The Kenya Court of Appeal dealt with the matter in case number 71.

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Hall v Hall (1868) 1 P and D 481 (Sir J P Wilde)

CASE NO. 39

(Persuasion is not unlawful, but pressure of whatever character if so exerted to overpower the volition without convincing the judgement of a testator, will constitute undue influence, though no force is either used or threatened) In this matter a widow sought probate of the will of her late husband. Her plea was resisted by a brother of the deceased, who alleged that the will was obtained by the undue influence of the widow. The will purported to leave the whole of the property of the testator to his wife. The jury found the plea of undue influence proved and the court pronounced against the will.

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SIR J P WILDE: … To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affects or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like – these are all legitimate, and may be fairly pressed on a testator . On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgement, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgement, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s.

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Wingrove v Wingrove and others (1886) 11 PD 81 (Sir James Hannen)

CASE NO. 40

(To establish undue influence to invalidate a will, it must be shown that the testator was coerced into doing that which he did not desire to do, and the mere fact that in making his will he was influenced by immoral considerations does not amount to such undue influence so long as the dispositions of the will express his wishes) The action was brought by a person claiming that he was a legatee under a will of the deceased, who alleged that a codicil that revoked some of the gifts made to him under the will was obtained by coercion and undue influence of the defendants to the action. The defendants’ case was that the codicil was not procured by undue influence, and sought probate of it together with the will.

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SIR JAMES HANNEN: ... We are all familiar with the use of the word ‘influence’; we say that one person has an unbounded influence over another, and we speak of evil influences and good influences, but it is not because one person has unbounded influence over another and therefore when exercised, even though it may be very bad indeed, it is undue influence in the legal sense of the word. To give you some illustrations of what I mean, a young man may be caught in the toils of a harlot, who makes use of her influence to induce him to make in a will in her favour, to the exclusion of his relatives... To be undue influence in the eyes of the law there must be - to sum it up in a word – coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he does not desire to do, that is undue influence. The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion, though not actual violence. ...It is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case, that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.

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Parfitt v Lawless (1872) LR 2 P and D 462 (Lord Penzance, Lord Brett and Baron Pigott) (Undue influence is common in confidential relationships of the religious nature, as between a confessor and a penitent) CASE NO. 41

The testatrix left her residuary estate to a Roman Catholic priest who lived with her and her husband as chaplain and confessor.When the priest propounded the will, it was alleged by the family of the testatrix that the priest had procured the gift of the residue to himself, by either coercion or dominion over the testatrix against her will, or by importunity which she could not resist. It was held that there was no evidence of undue influence.

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LORD PENZANCE: The law regarding wills is very different from this. The natural influence of the parent or guardian over the child, or husband over the wife, or attorney over the client, may lawfully be exerted to obtain a will or legacy, so long as the testator thoroughly understands what he is doing, and is a free agent. There is nothing illegal in the parent or husband pressing his claims on a child or wife, and obtaining a recognition of those claims in a legacy, provided that that persuasion stop short of coercion, and that the volition of the testator, though biased and impressed by the relation in which he stands to the legatee, is not overborne and subjected to the domination of another. The influence which will set aside a will, says Mr Justice Williams, ‘must amount to force and coercion destroying free agency; it must not be the influence of affection or attachment; it must not be the mere desire of gratifying the wishes of another, for that would be a very ground in support of a testamentary act; further, there must be proof that the act was obtained by this coercion; by importunity which could not be resisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear:’ Williams’ Executors, pt 1, bk 2, ch 1, §2. This difference, then, between the influence which is held to be undue in the case of transactions inter vivos, and that which is called undue in relation to a will or legacy is al-important when a question arises of making presumptions or adjusting the burden of proof. For it may be reasonable enough to presume that a person who had obtained a gift or contract to his own advantage and the detriment of another by the way of personal advice or persuasion has availed himself of the natural influence which his position gave him. And in casting upon him the burden of exculpation, the law is only assuming that he has done so. But it is a very different thing to presume, without a particle of proof, that a person so situated has abused his position by the exercise of dominion or the assertion of adverse control. *** (b)

Suspicious Circumstances

The English cases listed as cases numbers 42 and 43 state the principles relating to suspicious circumstances. These principles are applied in Kenya in the decisions made in cases numbers 44 and 45.

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Atter and others v Atkinson and another (1869) LR 1 P and D 665 (Sir J P Wilde) (Where a will is prepared by a person who takes a substantial benefit under it, the will will be regarded as a suspicious circumstance. If it is proved that the testator was of sound mind, memory, and understanding, that the will was read over to him, or that he read it himself, and that he put his signature to it, it will be presumed that he knew and approved its contents)

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CASE NO. 42

The will of the testatrix was challenged by some of her relatives on the ground that the deceased did not know and approve of its contents at the time she executed it, as the same was obtained through the undue influence of the solicitor who drafted it. It was alleged that the contents of the will were not read over, nor explained to her, and that she did not know that the solicitor had been appointed the residuary legatee, neither did she intend him to benefit. It transpired that the solicitor had sent another solicitor to have the document executed saying that it had clauses which benefited her daughters.

SIR J P WILDE: ...There is another general observation I will make as regards this case. The counsel for the defendants has said truly that the law requires that those who have to judge a will should be satisfied, upon very good and sufficient evidence, that the contents of the will were made known to and approved by a testator in a case in which the person who has drawn the will is the person who himself largely benefited. There is no special rule applying to attorneys, but the force of the observation is obviously increased in such a case, for we know that a person making a will confides more in a professional man than he generally does in any other person he may call to assist him. The proposition, however, is undoubted that if you have to deal with a will in which the person who makes it himself takes a large benefit, you ought to be well satisfied, from evidence calculated to exclude all doubt that the testator not only signed it, but that he knew and approved of its contents... There is a proposition of law, however, which I consider it is my duty to put before you. The question of fact is, did Mrs Newcombe really ever read the contents of the document? If you are satisfied that she read it, then, as a proposition of law, I feel bound to direct you that she must be taken to have known and approved of its contents. If, being of sound mind and capacity she read this residuary clause, the fact that she afterwards put her signature to it is conclusive to shew that she knew and approved of its contents reflected on the contrary proposition. Suppose that a long will with a number of arrangements, is read to a competent testator, and is executed by him, if we were permitted some time after his death to enter into a discussion as to how far he understood and appreciated the bearings of all the different parts of the will, we should upset half the wills in the country. Once you get the facts admitted or proved that a testator is capable, that there is no fraud, that the will was read over to

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him, and that he put his hand to it, the question whether he knew and approved of the contents is answered. The real, practical question in this case is, did Mrs Newcombe ever read the residuary clause? Was it ever brought to her notice in that or any other way before the execution? If you think she was of a sound and capable mind, and really did read the will through, and put her name to it, she was bound by that act, and there is an end of the matter. Wintle v Nye [1959] 1 All ER 552, 1 WLR 284 (Viscount Simonds, Lord Reid, Lord Tucker, Lord Keith of Avonholm and Lord Birkett)

CASE NO. 43

(Where the court has to deal with a will in which the person who prepared it himself takes a large benefit, it ought to be satisfied from concrete evidence that the deceased not only signed the will, but that he knew and approved of its contents)

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The testatrix was an elderly woman who had no experience of dealing with money, but who nevertheless was quite wealthy. She placed heavy reliance on the family solicitor. She instructed her solicitor to prepare her will, and in the will she eventually executed she left most of her estate to him. The court held that the circumstances of her will raised suspicion that she either did not know the contents of the will she executed or, if she was aware of the contents, she did not approve of them. VISCOUNT SIMONDS: My Lords, the relevant law is not, I think, in doubt. it was, as the Court of Appeal were unanimously of the opinion, correctly stated by the learned judge by reference in particular to the judgement of Parke B in Barry v Butlin (1838) 2 Moo PCC 480,12 PR 1089, PC 482. It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed. In the present case the circumstances were such as to impose on the respondent as heavy a burden as can well be imagined. Here was an elderly lady who might be called old, unversed in business, having no one upon whom to rely except the solicitor who had acted for her and her family; a will made by him under which he takes the bulk of her large estate; a will made, it is true, after a number of interviews extending over a considerable time, during which details of her property and of her proposed legacies and annuities were said to have been put before her, but in the end of a complexity which demanded for its comprehension no common understanding: on her part, a wish disclosed in January 1937, to leave her residuary estate to charity which was by April superseded by a devise of it to him, and, on his part, an explanation of the change which was calculated as much to aggravate as to allay suspicion : the will retained by him and no copy of it given to her: no independent advice received by her, and, even according to his own

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account, little pressure exercised by him to persuade her to get it: a codicil cutting out reversionary legacies to charities allegedly for the benefit of annuitants but in fact as was reasonably foreseeable, for the benefit of the residuary beneficiary...

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The cause will be remitted to the High Court of Justice, Probate, Divorce and Admiralty Division (Probate), upon the footing that the will dated 4 August 1937, of Kathleen Helen Wells is invalid in respect of the beneficial bequests and devises to the respondent contained in clauses 4 and 5 thereof, and that the codicil of 13 November 1939, is invalid, and that the said will except as aforesaid is pronounced for in solemn form of law and that the codicil is to be pronounced against, and that such further orders as are right are to be made to as to recalling the probate of the said will and codicil granted on 12 March 1948, and as to granting fresh probate of the said will, omitting the said beneficial bequests and devises to the respondent and omitting the said codicil...

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Wanjau Wanyoike and four others v Ernest Wanyoike Njubi Waweru and another18 Nairobi High Court civil suit number 147 of 1980 (Cotran J) (The burden of proving that suspicious circumstances exist lies on the person challenging the validity of the will. Where it is proved that there are circumstances exciting the suspicion of the court as whether the deceased knew and approved the contents of the document before the court, the burden of removing the suspicion lies on the person propounding the will. Where the propounder of a will or codicil is the principal beneficiary under it the court has to examine the evidence of the propounder vigilantly and jealously.)

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CASE NO. 44

The deceased made a will in 1976, leaving the bulk of the estate to his wife. In 1978 he purportedly wrote a codicil which substantially altered the contents of 1976 will, giving the bulk of the estate to his grandson. It is the grandson who procured the lawyer who drafted the codicil, the deceased had suffered a stroke about the time, and he had lived with the grandson at some stage after his hospitalisation. The Public Trustee, as the executor and trustee under the will, obtained probate to both the will and the codicil, whereupon the wife and children of the deceased sought the revocation of the grant to the extent it related to the codicil. The contention was that the codicil was not valid as it had been procured under suspicious circumstances. The deceased was very old, ninety years, sickly, and at the time he allegedly executed the codicil he was bedridden and under the control of the grandson. The court took oral evidence and concluded that the will was executed under circumstances that were suspicious, and it appeared doubtful that the document before court contained the wishes of the deceased.

COTRAN J: This being a death prior to 1 July 1981, the new Law of Succession Act (Chapter 160) does not apply. The matter is governed by section 46 of the Indian Succession Act 1865 which was applied to wills of Africans by the African Wills Act 1961 and which provides: ’46

18

Every person of sound mind and not a minor may dispose of his property by will.

A full text of this judgement can be found in Eugene Cotran, Casebook on Kenya Customary Law, Professional Books Limited and University of Nairobi Press, 1995, Nairobi, page 323.

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Explanation 1. – A married woman may dispose of any property which she could alienate by her own act during her life. Explanation 2. – Persons who are deaf, or dumb, or blind, are not thereby incapacitated for making a will if they are able to know what they do by it. Explanation 3. – One who is ordinarily insane may make a will during an interval in which he is of sound mind. Explanation 4. – No person can make a will while he is in such a state of mind, whether arising from drunkenness, or from illness, or from any other cause that he does not know what he is doing...

Upon the evidence, there is no dispute that the Reverend was a very old and weak man when he made the codicil. He had been bedridden for some six months before his death having suffered a stroke which paralysed the whole of his left side of his body in June 1978. Dr Mwinzi’s report states that during his stay at Kenyatta National Hospital between June and September 1978 the Reverend’s mental state fluctuated but he was often ‘confused and hallucinated.’ In Dr Mwinzi’s view the Reverend was then ‘not in full control of his faculties to be able to make a will.’ on the other hand, Dr Oyieke who saw him in November 1978 says that though bedridden he found the Reverend to be ‘conscious, cheerful, quite active in bed and well looking and in his right mind...he appeared quite reasonable and not confused.’ So far as the non-medical evidence is concerned, the plaintiffs depone in their affidavits that on the 16 December 1978, the Reverend was so sick and paralysed that he was not in any mental or physical condition to comprehend, or give instructions for or to make a codicil. On the other hand, the defendant’s evidence is to the effect that though he was old, sick and weak, the Reverend’s mind was clear until the day of his death.They rely on the following pieces of evidence:

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1.

Mr Michael Mugo Mungai He was the Branch Manager of the Cooperative Bank at Marige Market where the Reverend had an account. He explained how prior to his stroke the Reverend used to come to him to withdraw money from his account. He (Michael Mugo) helped him with the documentation. He saw him for the last time on 21 November 1978. Ernest called on him and asked him if he would go to the Reverend’s bedside because the latter wanted to withdraw money. Michael Mugo went with Ernest on 21 November 1978 to Paul’s house. The Reverend withdrew UShs 1 500 from his account and thumbprinted the relevant voucher. Michael Mugo spent about an hour with the Reverend. He says his mind was clear – they had a conversation about Christianity and the Reverend spoke well.

2.

Mr James Kanuri One of the witnesses to the codicil agreed that on 16 December 1978 the Reverend had a clear mind. Kanuri said ‘In my view the Reverend was capable of exercising judgement...I think he knew what he was doing. He was aware of people around him - ... He didn’t query after the reading - he seemed to understand what was said.

3.

Mr Stanley Kariuki Njau Another witness to the codicil who also said that the Reverend was ‘clear in his mind...he had no problem...his sickness did not affect his mind.’

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Mr Mugo Mukunya The advocate said that as a lawyer, he ‘was absolutely satisfied … that the Reverend had the mental capacity to make the codicil.’

5.

Wanyoike Wanjau Paul’s son, who looked after the Reverend in the period following his discharge from hospital in September until his death in December said that during that period the Reverend was ‘clear and rational’.

6.

Finally, Ernest himself said that the Reverend had a ‘perfect mind until he died. In particular, he had a ‘perfect mind’ on 16 December 1978 and ‘understood the contents of the codicil thoroughly.’

I have been referred to various authorities on the subject of the mental capacity of a testator, though for my part I do not think one needs to go beyond section 46 of the Indian Succession Act which I have cited above. For a will or codicil to be valid the testator must know what he is doing. He must be able to exercise judgement, so that he knows, understands and appreciates the contents of the will or codicil.

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Although section 5(4) of the new the Law of Succession Act the burden of proving unsoundness of mind lies upon the person who so alleges, the law as different prior to the Act – that is under the Indian and English law. In probate suits the burden of proving testamentary capacity rested on the party propounding the will or codicil, in this case the defendant Ernest. That burden is a heavy one, for the party propounding the will or codicil must satisfy the conscience of the court that the testator was of sound and disposing state of mind. The burden becomes heavier where there are circumstances which excite the suspicion of the court and it is for the propounder of the will or codicil to remove such suspicion. Where the propounder of the will or codicil is the principal beneficiary under it, it is the duty of the court to scrutinise the evidence of the propounders vigilantly and jealously (Wintle v Nye [1959)] 1 All ER 552 and Re Stott (deceased) [1980] 1 All ER 259). In my judgement this is a case which falls to be decided within the principles laid down in Wintle v Nye. I have no doubt that the witnesses who filed affidavits or who gave evidence were giving their honest opinions as to the mental capacity of the Reverend on 16 December 1978. As I have said before, he was undoubtedly old – about 90 – half paralysed, ill and weak,. He died three days after making the codicil. That is one circumstance that excites one’s suspicion as to his mental capacity. But a more important one is the undoubted fact that it was Ernest who did everything in relation to the codicil and benefited moist under it. He told us that the Reverend gave him instructions as to the changes he wanted made to the will and he (Ernest) noted them down on a copy of the will. That copy with Ernest’s notes was not produced. Mr Mukunya told us that he took written notes to the instructions given to him by Ernest, but those written notes were not produced . True the codicil was read to the Reverend sentence by sentence in English and Kikuyu, but did he really understand the effect of what he was doing? It must be remembered that the Reverend had made his will only two years earlier. He did give Ernest a substantial benefit under it. What has happened so soon thereafter as to induce him to give Ernest more than double what he gave him under the will, and not only that, but also at the expense of the Reverend’s wife, who under the codicil is deprived of more than half of what she got under the will and suddenly finds herself a mere licensee of her own matrimonial home.

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For my part I find it difficult to believe that the Reverend would do this if he had really appreciated the contents of the codicil. Having subjected the evidence in this case to the closest scrutiny, I find that the propounder of the will, that is to say Ernest, has failed to establish the heavy burden which lies upon him that the Reverend knew and approved the contents of the codicil dated 16 December 1978 Having decided in favour of the plaintiffs on the principal point, it becomes unnecessary for me to deal with Mr Waruhiu’s other point, taken at a very late stage of the proceedings, that the codicil is also invalid by virtue of section 4 of African Wills Act. Accordingly the plaintiffs’ prayers in this Originating Summons succeed in that the codicil dated 16 December 1978 is hereby declared invalid and the grant of letters of administration to the Public Trustee dated 8 August 1979 is invalid in so far as that codicil annexed is concerned.The Public Trustee’s grant will be with the will annexed only. Mwathi v Mwathi [1995 – 98] 1 EA 229 (Gicheru, Kwach and Shah, JJA) (Where the making or execution of a will is attended by suspicious circumstances the knowledge and approval by the deceased of the contents of the will will be called to doubt and the will would be liable to being declared invalid)

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CASE NO. 45

The deceased was alleged to have died testate. Two days before his death, he had allegedly dictated his wishes to his brother and others who reduced those wishes into writing, and got the deceased to thumbprint the same. When the brother of the deceased wanted the deceased to thumbprint the document he had him moved from his mother’s house to the brother’s house, and made efforts to exclude his sisters from the whole affair. The High Court found that the will was made in suspicious circumstances after taking into account the factors surrounding its making, and declared it invalid. An appeal to Court of Appeal on that point was rejected.

GICHERU, KWACH and SHAH, JJ: Mr Mulwa submitted that the judge was right to revoke the grant and declare the will invalid because the circumstances in which it was written and executed were suspicious and did not exclude the possibility of fraud. He drew the attention of the court to the fact that shortly before the execution of the alleged will, the appellant had removed the deceased from his mother’s house to his own house. He also pointed out that the appellant harboured considerable animosity against the respondents whom he banned from entering his house. So the real motive for moving the deceased to his house was not just to make the will, but also to place the deceased and the whole exercise of making the will, beyond the reach of the respondents. There was evidence that at the time the deceased is alleged to have dictated the will he was quite ill and could not walk without support. Regarding

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the conduct of the appellant on the two occasions he shifted the deceased from his mother’s house to his own house the judge remarked: ‘Thirdly, the conduct of the petitioner two or three days before the deceased died excited suspicion. He shifted the deceased from his mother’s house to his own house for baptism. After that he shifted him back.Then when he wanted to dictate his will, he shifted him again to his house. Why was all that necessary? The reasons the petitioner gave for doing so were unsatisfactory. The inference I draw for this conduct is that he did not want the objectors to know what he was doing with regard to the suit property. The petitioner was obliged to but did not demonstrate that the deceased freely and consciously dictated and executed the alleged will. He did not call evidence to exclude the possibility of him having unduly influenced the deceased to will his property to him.’

As the appellant was not only the author of the will but also the sole beneficiary under it, he had a duty to do everything above board. In the case of Wintle v Nye [1959] 1 All ER 551, Lord Reid said at page 561: “To tell a layman that he must be vigilant or jealous or suspicious of the evidence may not convey to his mind the weight of the onus which must be discharged if the will is to stand. In Fulton v Andrew, (1875) LR 7 HL Lord Cairns, LC, referred to the duty ‘to bring home to the mind of the testator the effect of his testamentary act,’ and pointed out that failure to perform that duty might amount to a greater or less degree of fraud. In Atter v Atkinson, (1869) LR 1 P and D Sir J P Wilde said: ‘the proposition, however, is undoubted that if you have to deal with a will in which the person who made it himself takes a large benefit, you ought to be well satisfied, from evidence calculated to exclude all doubt, that the testator not only signed it, but that he knew and approved of its contents.’ ”

That is the correct legal position in Kenya as well. On the evidence, we are satisfied that the appellant did not discharge the onus of showing that he did not procure the execution of the alleged will by unfair means, and the judge was perfectly right to revoke the grant made in his favour and declare the will invalid. *** Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

(c)

Mistake

The circumstances under which a will may be induced by mistake are discussed in the English cases listed as cases numbers 46, 47, 48, 49 and 50. There are apparently no known Kenyan cases where the issue of mistake, of the testator or of the person preparing the will on his behalf, came up for consideration, and a Kenyan court handling a matter where the issue of mistake comes up will find guidance in these English decisions.

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In the Goods of Hunt (1875) LR 3 P and D 250 (Sir J Hannen) (Knowledge and approval may be absent on account of the mistake of the testator. Where the mistake relates to the entire will the whole document is thereby rendered invalid)

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CASE NO. 46

The testatrix lived with her sister. She prepared two wills, one for herself and the other for execution by her sister. The contents of both were almost identical. By mistake she signed her sister’s will, instead of signing that meant for her. Probate was sought of the document as her will, on the basis that the document bore the wishes of the deceased and a mere mistake or the mere insertion of a wrong name at the commencement of the will was not fatal. It was held that the will was not admissible to probate as the deceased did not know and approve of its contents at the time she executed it.

SIR J HANNEN: No doubt there has been an unfortunate blunder. The lady signed as her will something which in fact was not her will. If I were to attempt to read it as her will, it would lead to a variety of absurdities. She leaves to her sister Sarah that is to herself, a life interest I a portion of her property, and all the furniture, plate, and c., which she holds in part with herself. I am asked to treat this as a misdescription. If by accident a wrong name had been introduced, and it was clear what person was intended, the court would give effect to the instrument, providing the mistake could be corrected. But it would be contrary to truth in this case if I acted on such an assumption. If I were to put such a construction upon this will, is should assuming, in order to do substantial justice what everyone who hears me would know is contrary to the fact. And no court ought to base its judgement on something wholly artificial, and contrary to what everyone must see is the real state of the circumstances. It is enough to say that there has been an unfortunate blunder. A paper has been signed as the lady’s will, which as it happens, if treated as her will, would to a great extent, although not entirely, carry out her wishes. But in one respect it does not, for by it a legacy is bequeathed to one charity which she intended to leave to another. As regards this legacy, it is suggested that it might be treated as if the deceased did not know and approve of that part of the will, but she did not infact know and approve of any part of the contents of the a paper as her will, for it is quite clear that if she had known of the contents she would not have signed it. I regret the blunder, but I cannot repair it. I reject the motion, but allow the executors costs out of the estate.

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Collins and Tuffley v Elstone (1893) P 1 (The President) (If the testator knows and approves the contents of a will, but is mistaken as to the legal effect of the words, the will will be considered valid)

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CASE NO. 47

The testatrix left two wills and a codicil to the first will. The second will carried a revocation clause revoking all previous wills and testamentary dispositions. When the revocation clause was read over to her she objected to it, stating that she had no intention to revoke her first will and codicil. She was assured that the clause only related to an insurance policy, the subject of the second will, and that it did not apply to her first will and the codicil to it. She executed the will. It was held that she must be taken to have known and approved the contents of the revocation clause, and that the said words would be included in the probate of the second will.

THE PRESIDENT: I cannot help regretting – as I suppose everybody would regret – that I am compelled to come to a conclusion the effect of which I am conscious will be that the real intentions of the testatrix will not be carried out. But on the facts of the case the conclusion is quite clear.The last will contains words which in law revoke all previous wills. Those words were inserted, as I have no doubt, because the testatrix misunderstood their meaning, and I have no doubt how she came to misunderstand their meaning. it is clear on the evidence that the person who drew the will was ignorant – there is no fraud – as to the effect of putting that clause in, and doubly ignorant; for he told her it would be inoperative, and he told her further, if it was struck out the rest of the will would be vitiated. Misinformed by this statement, she allowed the clause to remain. The question is, under these circumstances, can I strike it out consistently with the authorities? I am afraid I cannot. It seems to me that the language used in that case (Morrell v Morrell 7 PD 68) expresses the law which is applicable to this case, and expresses what is some reason for it, because the view of Lord Hannen in that case is this, that if a testator employs another to convey his meaning in technical language, and that other person makes a mistake in doing it, the mistake is the same as if the testator had employed that technical language himself. Now, that view appears to me exactly to meet the present case. This lady thought it right to employ this gentleman to make her will for her; she thought it right to trust him. No doubt he was mistaken; but according to the view of Lord Hannen, his mistake was her mistake.

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In the Estate of Fanny Deborah Meyer (1908) P 353 (Sir Gorell Barnes P) (A person who signs the wrong will by mistake does not possess the necessary testamentary intention, notwithstanding that the provisions of the will correspond with her true intention) CASE NO. 48

Two sisters executed codicils similar in terms. By mistake each sister executed the codicil intended for, and purporting to be that of, the other. When one of the sisters died, and probate was sought of the codicil executed by her, the court refused probate to it, on the ground that the codicil was not the document that the deceased intended to sign at the time she signed it. Although she did in fact sign it, she was mistaken about its contents, and could not be said to have had known and approved of its contents.

SIR GORELL BARNES P: But, it is quite clear that this lady, though her signature is on the document, never meant to sign this particular codicil at all. She meant to sign a totally different document. It may be that this document contains provisions corresponding with what she wished to sign, because the two documents were crosscodicils by two sisters. But, as a matter of fact, the deceased in signing her name to this codicil never intended to do that at all, but intended to put her signature to another document; and, unless some authority can be produced to me to shew that in such a case the document she did not intend to sign is to be treated as the one she did intend to sign. I do not mean to support it... In re Morris, deceased (1971) P 62; (1970) 2 WLR 805 Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

(Latey J) (A testator is not bound by a mistake on the part of the draughtsman which produces an instrument which fundamentally varies with the testator’s instructions and with what she wanted and intended) CASE NO. 49

The testatrix made a will, but after some time decided to alter some of its provisions. She instructed a solicitor to prepare a codicil to effect the changes. The solicitor made a mistake while drafting and the testatrix signed the codicil after merely passing a glance over the document, but without reading it. It was held that the mistake was a minor clerical error, a slip, and it could be overlooked. In the opinion of the court the mistake was not of the principal, but the agent and it did not bind the principal.

LATEY J: It must first be said that the law is clear that where there is absence of knowledge and approval (for example, because of mistake, as in this case) the court

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has no power to rectify by adding words to the instrument...Were it not so the defect in this codicil would be simply and entirely cured by the insertion of the Roman numerical ‘(iv)’ after the numerical 7 in clause 1, thereby giving effect to the testatrix’s intentions in their entirety. ...there has been...a progressive erosion of the rigidity of the rule. This began in Fulton v Andrew (1875) LR 7 HL 448. The material part of the headnote, at page 449, reads: ‘there is no unyielding rule of law especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all farther inquiry is shut out.’

The testatrix was competent, did (as I have found) in a literal, physical sense read the codicil and did duly execute it, and if the rule in Guardhouse v Blackburn (1866) LR 1 P and D 109 [1861-73] All ER survived. I should be bound to find that she knew and approved of the contents of it. But that rule does not survive in any shape or form and on all the evidence I have no doubt at all that she did not in fact know and approve its contents. ...The introduction of the words ‘clause 7’ instead of ‘clause 7 (iv)’ was per incuriam. The solicitor’s mind was never applied to it, and never adverted to the significance and effect. It was a mere clerical error on his part, a slip. He knew what the testatrix’s instructions and intentions were, and what he did was outside the scope of his authority. And he did it, of course, without knowing and approving what he himself was doing. How can one impute to the principal the agent’s knowledge and approval, which the agent himself has not got? Accordingly, I hold that the testatrix was not bound by this mistake of the draftsman, which was never brought to her notice.The discrepancy between her instructions and what was in the codicil was to all intents and purposes total and was never within her cognisance.

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I cannot add the numerical (iv) after 7 but if 7 is excluded, clause 1 of the codicil would read as follows: ‘1. I revoke clauses 3 of my said will.’ Accordingly, the codicil will be admitted to probate with the omission of the numerical 7 in clause 1.

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In re Phelan, Deceased (1972) Fam 33 (Stirling J) (Knowledge and approval of the testator may be absent by reason of a mistake on the part of the testator)

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CASE NO. 50

The testator made four wills in four will forms purchased from the stationers. He thought that each gift ought to made or put in a separate form. Each form had a standard revocation clause at the top. He executed all four forms on the same day. It appeared that the first three wills were revoked by the revocation clauses contained in the wills signed after them, and that only the fourth and last will to be executed was valid. The executor sought probate of all four wills. It was held that the testator did not know or approve of the contents of the wills in so far as they related to the revocation clauses. All four were admitted to probate without the revocation clauses as he was deemed to have inadvertently included the revocation clause in each of the three wills.

STIRLING J: The law would seem to be this, and it is set out in, if I may say so, a most useful judgement of Latey J given quite recently in the In re Morris, deceased [1970] 1 All ER 1057 in which he reviews the older authorities. I do not propose to read any substantial passages of that judgement, but he relied for the purpose of his own judgement very much on Crear v Crear (unreported), a case of Sachs J, from which, at p 78, he quotes passages, in which it is clear – and it follows the older authorities – that although a testator who has executed a will, which prima facie he has read, if he is of competent mind must be taken to know and approve what he executes, and that would include, of course, a revocation clause, there is no presumption of law; it is merely a grave and weighty circumstance to consider, and if the obvious facts militate against such an intention as expressed in the document the court can act upon the real intention as found by the court. It can do so in this case (and here is authority for it)… by omitting certain words. The court cannot, of course, remake a will for a testator, but it can omit words which have come in by inadvertence or by misunderstanding if their omission gives effect to the true intentions of the testator as found by the court. That is precisely what I intend to do, and think I can do, in this case.The intention of the testator, as I think, was beyond any doubt whatever effect can be given to it by pronouncing for the will of 10 June 1968, but in their case omitting in the case of each of the wills the revocation clause. *** (d)

Fraud

Knowledge and approval is considered absent on account of fraud exercised on the testator. A will procured by fraud is invalid. Fraud being a crime, evidence on it must be to a very high degree of proof. The English decision in Case number 51 illustrates

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the effect of fraud on the validity of a will. The issue of fraud came up in the Kenyan decision in case number 21. W Scott Fulton and others v Charles Batty Andrew and another (1875) LR 7 HR 448 (Lord Cairns LC, Lord Hatherley, Lord O’Hagan and Lord Chelmsford)

CASE NO. 51

(Where a person who frames a will obtains substantial benefits under that will, he is in a different position to other ordinary legatees and must bear the onus of showing that the will is that of a free and capable testator. Eventhough the will is read over to a competent testator, the failure to bring home to the mind of the testator of the effect of his testamentary act may amount to fraud)

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The executors, named in the will of the testator, were the residuary devisees and legatees. They were not related in any way to the testator. The issues that arose when probate was sought of the will were whether the testator was of the requisite testamentary capacity, whether the will was obtained by the undue influence of the executors, and whether the deceased, at the time of execution of the will, knew and approved the contents of the same. The House of Lords pronounced against the will. LORD CAIRNS LC: Now, my Lords, the rule which is said not to have been sufficiently considered is this: It is said that it has been established by certain cases...that in judging the validity of a will or part of a will, if you find that the testator was of sound mind, memory and understanding, and if you find further, that the will was read over to him, or read over by him, there is an end of the case; that you must at once assume that he was aware of the contents of the will, and that there was a positive and unyielding rule of law that no evidence against that presumption can be received. My Lords, I should in this case, as indeed in all other cases, greatly deprecate the introduction or creation of fixed and unyielding rules of law which are not imposed by Act of Parliament. I think it would be greatly to be deprecated that any positive rule as to dealing with a question of fact should be laid down, and laid down now for the first time, unless the legislature has, in the shape of an Act of Parliament, distinctly imposed that rule. But, My Lords, moreover, how does the qualification that there must be no fraud bear upon the present case? It is very difficult to define the various grades and shades of fraud; but it is a very important qualification to engraft upon the general state of things, that the reading over of a will to a competent testator must be taken to have apprised him of the contents. If your Lordships find a case in which persons who are strangers to the testator, who have no claim upon his bounty, have themselves prepared, for their own benefit, a will disposing in their favour of a large portion of the property of the testator; and if you submit that case to a jury, it may well be that the jury may consider that there was a want, on the part of those who propounded the will., of the

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execution of the duty which lay upon them, to bring home to the mind of the testator the effect of his testamentary act; and that that failure in performing the duty which lay upon them, amounted to a greater or less degree of fraud on their part... The other case...Guardhouse v Blackburn [1861-73] All ER Rep 680. In that case the learned judge laid down certain propositions which he said commended themselves to his mind as rules which since the statute ought to govern his action in respect of a duty executed paper, and the statement of those rules was this: ‘Thirdly, although the testator knew and approved the contents, the paper may still be rejected, on proof establishing beyond all possibility of mistake, that he did not intend the paper to operate as a will. Fourthly, that although the testator did know and approve the contents, the paper may be refused probate if it be proved that any fraud has been purposely practised on the testator in obtaining his execution thereof. Fifthly, that, subject to this last preceding proposition, the fact that the will has been duly read over to a capable testator on the occasion of its execution, or that its contents have been brought to his notice in any other way, should, when coupled with his execution thereof, be held conclusive evidence that he approved as well as knew the contents thereof.’ LORD HATHERLEY: ...There is one rule which has always been laid down by the courts having to deal with wills, and that a person who is instrumental in the making of a will, as these two people undoubtedly were, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will was read over to the testator and that he was of sound mind and memory, and capable of comprehending it. But there is a further onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of shewing the righteousness of the transaction... ***

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(e)

Time of Knowledge and Approval

Cases numbers 52 and 53 state the principle that the testator must know and approve the contents of their will at the time of execution, and also the exception to this general rule. The general exception is to the effect that a will may still be valid notwithstanding lack of knowledge and approval at the time of execution, so long as: one, the testator knew and approved the contents of the will at the time he gave instructions, two, the will was prepared in accordance with those instructions, and three, the testator believed at the time of executing the will that he was executing a will for which he had earlier given instructions.

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Parker and another v Felgate and Tilly (1883) LR 8 P and D 171 (Sir J Hannen) (Where a testator gave instructions for his will, and the will is prepared as per those instructions, such will will be valid although at the time of execution the testator merely recollects having given those instructions but believes that the will he was executing was prepared in accordance with those instructions)

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CASE NO. 52

The testatrix gave instructions to her solicitor to prepare a will for her. She held several interviews with her solicitor, before the will was prepared. At the time of execution she was very ill and she signed the will without reading it believing that it was prepared in accordance with the instructions that she had given earlier. When her executors sought to propound the same, it was contended by her father and brother that the will was not duly executed as the testatrix was not of sound mind, memory and understanding at the time of execution, and that she did not know and approve of the contents of the will. The court pronounced for the will.

Sir J Hannen: If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, ‘I have my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.’ Now, I have only put into language that which flashes across the mind without being expressed in words. Do you believe that she was so far capable of understanding what was going on? Did she at that time know, and recollect all that she had done with Mr Parker? That would be one state of mind. But if you should come to the conclusion that she did not at that time recollect in every detail all that had passed between them, do you think that she was in a condition, if each clause of this will had been put to her, and she had been asked, ‘Do you wish to leave So-and So much,’ or do you wish to do this (as the case might be), she would have been able to answer intelligently ‘Yes’ to each question? That would another condition of mind. It would not be as strong as the first, viz, that in which she recollected all that she had done, but it would be sufficient. There is also a third state of mind which, in my judgement, would be sufficient. A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, ‘I have settled that business with my solicitor. I rely upon his having embodied it improper words, and I accept the paper which is put before me as embodying it:’ it is not, of course necessary that he should use those words, but if he is capable of that train of thought in my judgement that is sufficient. It is for you to say whether, having regard to the circumstances under which this will was prepared and executed you accept the view of those who were present at the time, and who have given their evidence, and who say that in their judgement she was conscious.

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There remains the further question as to the contents of the will... If Mr Ponsford only inserted these clauses because he believed the testatrix would approve of them that would not be sufficient.To make the clauses good there must be either instructions previously given or the will as drawn must be afterwards acknowledged or approved. If you believe that there were such instructions, then the will only expresses her intention and carries out her instructions and clauses cannot be rejected. First, tell me whether you think that at the time when the will was executed the deceased recollected all the provisions that she desired to make by her will? If you come to the conclusion that she did, then it will not be necessary to consider the other questions, but supposing you think that she did not, then do you consider that she was capable of understanding that she was executing that will which she had given Mr Parker instructions to make. In the Estate of Wallace, Decd – Solicitor of the Duchy of Cornwall v Batten and another [1952] 2 TLR 925 (Devlin J) (A will may be valid despite lack of knowledge and approval at the time of execution so long as at the time of execution: the testator knew and approved the contents of the will at the time he gave instructions for its preparation, the will was prepared in accordance with those instructions, and at the time of execution the testator believed that he was executing the will for which he had earlier given instructions)

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CASE NO. 53

The testator was seriously ill at the time he wrote and signed a document entitled ‘last wish.’ At the time of execution, he knew and approved the contents. The ‘last wish’ document was then passed over to a solicitor who prepared a formal will in accordance with the document.At the time the testator signed the will, a day before he died; he clearly did not know and approve the contents of the will as he did not read the same neither was it read over to him. It was held that the will was valid since he understood at the time he was signing it that he was signing a document prepared in accordance with his ‘last wish’ document, and therefore he knew and approved of its contents.

DEVLIN J If it were necessary for the defendants who set up the will to satisfy me that at the time when he actually executed the document Mr Wallace knew and approved the contents, I should not be so satisfied. And, indeed, the defendants did not put their case as high as that. The evidence clearly falls short of showing that Mr Wallace read the will, which was not read over to him, satisfied himself that it carried out his wishes in the matter. The defendants therefore rely on the principle, which according to the authorities has been well-established, that if a testator gives instructions for a will to be drawn, and if the court is satisfied that he knew and approved the contents of those instructions, it is not necessary that the court should also be satisfied that he knew and

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approved the contents of the will, provided that the circumstances were such as would enable the court to say that he knew the will was drawn according to his instructions. I can deal with this principle quite shortly, because the essential part of it, so far as I am concerned, has been summarised by Lord Macnaghten in giving the judgement of the Privy Council in Perera v Perera (1901) AC 354 . In the relevant passage Lord Macnagten approved the rule as laid down by Sir James Hannen in Parker v Felgate ((1883) 8 PD 171) in the following terms:

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‘if a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far: ‘I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.’

Accordingly, this way of putting the case gives rise to two questions. The first is: did the deceased know and approve the contents of the document which he described as his ‘Last wish’? If he did, then they would be part of the instructions referred to in the rule which I have just stated, because if the document is what it purports to be it is a statement by the deceased in his own handwriting of what he headed his ‘Last wish,’ and what he intended to be his last wish. The second question then is: did he accept the will as a document which was carrying out his last wish as set out in the ‘Last wish’ document? There is no dispute that the will did in fact carry out the last wish, which was a comparatively simple one, and which was properly and adequately translated into the formal terms of the will. Approaching the first question, and taking it that the deceased wrote the document headed ‘Last wish’ on the Wednesday evening, there is no clear evidence of what his condition was mentally and physically at that time. The doctor who had seen him on the Wednesday afternoon was not willing to express an opinion as to Mr Wallace’s testamentary capacity one way or another. And he was not seen again by a doctor until he was in a coma on the Friday morning. But one starts with the fact that he wrote this document out in his own hand, and prima facie a man who does that knows and approves its contents. It is not a case of some complicated matter being read over to him which his state of mind might not permit him to take in. The question therefore is: was it his own unaided document or was he simply putting down something which he was asked to put down by somebody else and that his state of health and his state of mind did not enable him to resist putting down? If it was a genuine document arrived at, as the Battens said it was, by his own unaided powers, then it undoubtedly expressed quite clearly what his last wish was. *** (f) Burden of Proof of Lack of Knowledge and Approval Case number 54 states the English law position, which places the burden of proof, that the will was made by a testator who knew and approved the contents of his will at the time of execution on the executors. The Kenyan position is stated in cases numbers 44 and 55. The Law of Succession Act does not state where the burden of proof lies in such situations but the courts have held that the same lies with the person alleging lack of knowledge and approval. ***

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Tyrrell v Painton and another (1894 [1895] 1 QB 202, [1891-4] All ER (Lindley, Smith and Davey LJJ) (The burden of proof lies on the proponent of the will who must satisfy the court that the instrument propounded is the last will of a testator who had knowledge of its contents and who approved of those contents by freely signing it. Where circumstances exist which excite suspicion, these must be removed)

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CASE NO. 54

The deceased made a will in 1880 and another in 1884. Then she became unhappy with a beneficiary under the will. On 7 November 1892 she made another will leaving the estate to another beneficiary. On 9 November 1892, a son of the beneficiary of the 1880 and 1884 wills brought to the deceased a will that he had prepared and which left the property to his father. The will was purportedly executed by the deceased, in the presence of the son of the beneficiary and a friend of the young man. Probate was sought of the will of 7 November 1892, but the application was resisted by the beneficiary of the will of 9 November 1892, on the grounds that the will of 7 November 1892 was not valid as it had been revoked by the latter will. The court held that the latter will was procured under suspicious circumstances, and upheld the earlier will. The court pointed out the evidence tendered by the witnesses who attested the latter will was not sufficient to remove the suspicion arising from the circumstances under which that will was prepared and executed.

LINDLEY LJ: In Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 Parke B, delivering the opinion of the Judicial Committee said: ‘The rules of law according to which cases of this nature are to be decided do not admit of nay dispute so far as they are necessary to be determination of the present appeal, and they have been acquiesced in on both sides. These rules are two: The first, that the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant, and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.’The same principle was laid down and acted upon in Fulton v Andrew (1875) LR 7 HL 448 and Brown v Fisher (1890) 63 LT 465... The rule...is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but

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extends to all cases in which circumstances exist which excite the suspicion of the court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will... DAVEY LJ: ... There rests upon that will a suspicion which must be removed before you come to the plea of fraud. It must not be supposed that the principle in Barry v Butlin 2 Moo PC 480 is confined to cases where the person who prepares the will is the person who takes the benefit under it – that is one state of things which raises a suspicion; but the principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the court ought not to pronounce in favour of it unless that suspicion is removed. Here the circumstances were most suspicious, and the question a judge has to ask himself is whether the defendants have discharged themselves of the onus of showing the righteousness of the transaction, and without going again over the circumstances which have been referred to, I am compelled to say that they have not. The evidence of Thomas Painton and Rowland is in my opinion quite insufficient to remove the suspicion; and as to the suggestion that Mr Tyrrell induced Mrs Bye by cajolery to make the will of the 7th in his favour, there are no materials placed before us which appear to me to lay the slightest ground for such a suspicion. I agree, therefore, in pronouncing in favour of the earlier will. Karanja and another v Karanja Nyanjugu and another v Karanja [2002] 2 KLR 22 (Githinji J)

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(The burden of proving that a will was obtained by fraud or coercion or importunity is on the person alleging it)

CASE NO. 55

A testator left a number of wills and codicils. Probate was sought, by the executors, of the wills and codicils, and the same was objected to by some of the survivors of the deceased, alleging that the wills and codicils were not signed by the deceased, or alternatively they were obtained under undue influence, were not executed in accordance with the law or they were found tampered with after the deceased’s death. The court took oral evidence, and held that the instruments were properly executed and attested, and found that there was no evidence at all suggesting undue influence or any form of misconduct on the part of the executors concerning the making of the said will.

GITHINJI J:The dispute has to be decided within the context of the law. By section 11 of the Law of Succession Act no will shall be valid unless:

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(a)

The testator has signed or affixed his mark to the will;

(b)

Signature or mark of the testator is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;

(c)

Will is attested by two or more competent witness each of whom must have seen the testator sign or affix his mark.

By section 7 of the Act, wills caused by fraud, coercion or importunity as takes away free agency of the testator or induced by mistake is void. Section 2(1) of the Law of Succession Act at page 9 defines “Probate’ to mean margin: ‘a certificate of court of competent jurisdiction that a will, of which a certified copy is attached, in case of a written will, has been proved a valid will with a grant of representation to the executor in respect of the estate.’

From that definition, it is clear that all this court should be concerned with before granting probate of the will is the validity of the wills. It is duty of the petitioners to prove the validity of the wills. These have been seriously contested proceedings and parties and court have spent a lot of time to bring the proceedings to the conclusion. But it is clear from the objector’s evidence that the proceedings have been protracted because she does not clearly understand the duty of the probate court when dealing with the petition for grant of probate of a will.

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The record shows that the objector was challenging the validity of the will on several grounds that: (i)

The alleged wills and codicils purport to dispose of properties which deceased did not have capacity to dispose of as they were jointly acquired by the objector and the deceased.

(ii)

The objector and her son John Kioi Karanja have not been adequately provided for in the alleged wills and codicils.

On 14 December 1995 I ruled, inter alia, that that inclusion of properties claimed by objector in the will can be decided in other proceedings and is not a valid ground for the challenging the validity of the will. Despite that ruling the evidence of the objector shows that her main objection to the grant of probate of the will arises from the manner in which the deceased disposed of the estate by the will. For the avoidance of confusion let me restate the relevant general principles of law. The principal duty of probate court is to decide whether or not a document is entitled to probate as a testamentary paper and who is entitled to be appointed the personal representative of the deceased. When deciding whether or not to grant probate of will, the probate court is not required to decide disputes of title to properties the will purports to dispose or disputes on the validity of such disposition. Further, the probate court is not required to decide questions as to whether properties disposed of are wholly owned or jointly owned by deceased or whether deceased had power to dispose some of the properties. In conclusion, the grant of probate of a will is only conclusive as to the validity of a will; contents of a will and appointment of the executors. The grant of probate does

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not predetermine all other disputes which may arise from the will. thus all disputes raised by the objector in her evidence regarding the manner deceased disposed the properties in the will and any other dispute including her claim to part of Muguga farm are matters which are irrelevant at this stage and which should be decided in separate proceedings. Having said that, all the four formal grounds of objection can be consolidated into two grounds: 1.

The will and codicils are void as they were made under undue influence;

2.

The wills and codicils were not duly executed by the deceased.

Regarding the issue of undue influence, the objector did not deal with that issue in her evidence. She did not accuse Mary Wangui or anybody else of coercion or fraud. Mr Machira, the learned counsel for the objector cross-examined Mary Wangui at length. But he did not accuse Mary Wangui or anybody else of having exercised coercion on deceased or having defrauded deceased. He did not refer to facts or circumstances from which undue influence can be inferred. The burden of proof was on the objector. She failed to discharge the burden and the ground of undue influence remains unproved. The objector mainly relied on the ground of want of due execution of the wills and codicils. She claims that the wills and codicils are forgeries by Mary Wangui. The objector states categorically that the signature on the wills and codicils are not that of the deceased. The learned counsel for the objector has in his written submissions referred to several circumstances including the manner the wills and codicils were discovered, the circumstances under which they were executed; the state of Mr Aziz’s client file. And he has asked the court to consider all those circumstances and find that the wills and codicils are forgeries.

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Two of the wills are dated 1984 and 1985 respectively. The will in contention in Probate and Administration cause number 1366C/92 is dated 1992. All the codicils are dated 1992. Deceased died in 1995.The wills and codicils were therefore made several years before the deceased died. When the will is regular on the face of it with an attestation clause and signatures of attesting witnesses and the signature of the testator, there is a rebuttable presumption of due execution (omnia esse riteatta). In this case, all the wills and codicils appear ex facie to be properly executed. Each has a signature which appears besides the name of the testator. The signatures are so placed as to show that they were intended to give effect to the document as a wills and codicils. Each will and codicil is witnessed by two witnesses and has an attestation clause. In the above circumstances, the presumption of due execution applies to the wills and codicils. Has the presumption been rebutted by the objector or are there circumstances which disturb the conscience of the court about the validity of the wills and codicils? All the objector states is that the signatures are not those of the deceased and that she suspected that Mary Wangui fabricated the wills and codicils. she however

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agrees that the signatures in the wills resemble those of the deceased except that the signatures have two ‘C’ instead of three ‘C.’ Earlier in her evidence she had said that the deceased genuine signatures has three letters similar to letter ‘C’ but that signature is on the wills and codicils is not his as it has four letters similar to letter ‘C.’ She produced four original cheques bearing signature of deceased (exhibits D4, 5,6,7) and other documents she could not tell exactly which documents had the correct signatures of the deceased. She could only identify the signature on cheque (EX D4, 6, 7) belonged to the deceased. Similarly, she could not say whether or not the signature of deceased in exhibit D10 (b) is the correct signature of the deceased. She denied the signature in (exhibit D10 (d)) as correct. She refused to answer questions in cross examination regarding signatures on the documents she had produced on the ground that she had lost her eye glasses. Her evidence on the documents she has produced indicates that she is not certain about the correct signature of the deceased. To the eyes of a person who is not a handwriting expert, the signatures on the documents she had produced appear similar on the wills and codicils. There is no evidence of an expert to show that the signatures on the wills and codicils could not have been made by the deceased.

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On the contrary, there is direct evidence from Aziz Mohammed and Teresa Kambo that the deceased signed the documents in their presence. Mr Machira for the objector has said a lot of things about the two witnesses. And in an attempt to get evidence to support the objector’s case Mr Machira embarked on an investigation mission. First, he asked Mary Wangui to produce some documents on which he cross examined her at length. Secondly he asked Mr Aziz Mohamed to produce the file of deceased on which he again cross examined Mr Aziz Mohamed and submitted extensively. The file has number 3434. It has the heading ‘JAMES KARANJA WILLS.’ It contains some hand written notes and typed copies of draft wills and codicils and copies of wills and codicils and a copy of Title Deed for Muguga farm. It also contains correspondence received from petitioner’s lawyers. There is no suggestion that the file is not a genuine, office clients file. It is true that it does not have many handwritten notes but Mr Aziz Mohamed has explained that he was preparing wills in draft by typing and that he would thereafter give his secretary a typed draft to be prepared a formal draft. That evidence is supported by Teresa Kambo. I do not find anything which disturbs the conscience of the court in the manner the draft wills and codicils were prepared. It is true that the file contains a will dated 29 November 1986 but deceased had a right to revoke it and make a fresh will. I cannot find anything in the evidence of Mr Aziz Mohamed and Teresa Kambo which indicates that they have fabricated the evidence that the deceased in fact made wills and executed them. Objector states that the wills were in possession of Mary Wangui. But all the evidence including the evidence of the objector show that the wills and codicils were found locked in the deceased’s safe in his Muguga house. There is no evidence that she had possession of keys to the deceased’s safe before she flew to London. She

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admits that she had the keys of the deceased when she came back from London but states that she gave the keys to her brother Peter Kioi who opened the safe in the company of John Kioi (son of the objector). The objector testified, inter alia, that; the safe was in the bedroom where she was sleeping ; that she was given the keys to the bedroom on 5 February 1995; Mary Wangui gave the keys to the safe to Peter Kioi and John Kioi who went to the safe and removed the envelope containing the wills; that before the wills were removed from the safe Mary Wangui had not opened the safe in her presence ; that it is not possible that Mary Wangui was keeping the keys to the safe when her husband was alive and that she did not see Mary Wangui enter into the bedroom where the safe was located between the date of arrival of the deceased’s body and the date the will was removed from the safe. That evidence excludes the possibility that Mary Wangui had possession of the wills and codicils before they were removed from the safe by Peter Kioi and John Kioi. The evidence of Mary Wangui that she did not know of the existence of the wills until she talked to Aziz Mohamed on telephone on 8 February 1995 is supported by a note on telephone message contained in the client’s file.The note is addressed to Mr Mohamed and is shown to be from Mrs Wangui Karanja of telephone 0154 52240. It shows that she left a message as follows ‘she wants to discuss her father’s will with you. It’s urgent.’ The note is dated ‘8/2.’ 8 July 1995 is the date Mary Wangui arrived from London. The note supports her evidence on the events before the will was discovered in the safe.

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In conclusion, I find that the presumption of the due execution of the wills and codicils has not been rebutted by any concrete evidence and that even if the presumption is discounted there is ample and credible evidence that the deceased made the wills and codicils and duly executed them in accordance with provisions of section 11 of the Law of Succession Act.There are no circumstances which disturb the conscience of the court about the will and codicils. Dr Kamau Kuria the learned counsel for the petitioners asks the court to order the objector to pay costs to the petitioners and for counsel for objector to pay personally costs in respect of allegations made against Mr Aziz Mohamed, petitioner’s counsel and the petitioners on 2 October 1998. The costs are in the discretion of the court. Objector’s counsel asks the petitioners’ should be ordered to pay the costs as they have been enjoying all the income of the estate while the objector suffers financial hardship and misery. It is the objector who has been the cause of this long and protracted litigation. Did she have a genuine reason for the objection? She had the services of a very able and experienced counsel. The court at the very early stage gave directions as to what are the valid grounds for challenging the validity of the wills and codicils. The advice of the court was not heeded. Mary Wangui was cross examined at length on matters which were not helpful to the court in deciding the issue of validity of wills. As I have observed before, it seems that the objector had no evidence to support the objection before she filed the objection because her counsel had to embark in the cause of the proceedings on an investigation to gather evidence.

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The evidence of the objector has shown that it is the manner of the disposal of the estate which mainly dissatisfied her. She had another remedy. In all these circumstances, she should not justly ask the estate to pay the costs of this litigation. As regards the costs of the petitioners, they still had to propound the wills and codicils and prove them valid. The three daughters of the deceased have been given at least eleven income producing properties and Mary Wangui has been collecting monthly rental income of not less than KShs 86 000. The estate is large and it should justly pay the petitioner’s costs. For all the above reasons, I dismiss the objection and cross petition. I allow the petitions... The petitioners’ costs...to be paid by the estate. The objector... to meet her own costs of the objection.

FORM 4.6 EXECUTION

AND

ATTESTATION

The validity of a written will also depends on compliance with the formal requirements set out in section 11. These provide for the execution and attestation of the written will. Section 11 states as follows:

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‘No written will shall be valid unless: (a)

The testator has signed or affixed his mark to the will ., or it has been signed by some other person in the presence and by the direction of the testator;

(b)

The signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;

(c)

The will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Cases numbers 56, 57, 58, 71 and 331 illustrate the application of the provisions of section 11 of the Law of Succession Act. Cases numbers 59 and 60 are English decisions which set out the general principles on execution, acknowledgement of the executor’s signature, and attestation.

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In the Matter of the Estate of Humphrey Edward Githuru Kamuyu Nairobi High Court succession cause number 2322 of 1995 (Visram J) CASE NO. 56

(A will is valid if it fully complies with section 11 of the Law of Succession Act, with respect to execution and attestation) The applicant, a son of the deceased, sought a nullification of the will on the grounds that it was not authentic as it had not been written by the deceased. On the evidence the court found that the will was properly signed by the deceased, was properly witnessed and was written by a person who had been directed by the deceased to prepare it.

VISRAM J: By a testamentary instrument dated 23 June 1990, the deceased had bequeathed all his properties to the respondent and her son, Humphrey Njonjo Waweru. That document was written in the Kikuyu language by one Githuri, son of Moses Kamuyu Githuri (DW4), and signed by the deceased in the presence of seven other witnesses. A translation into English was done by Michael Kamau Kinga, an advocate of this court. That document did not bequeath anything to the applicant.

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Mr Mbigi for the Applicant submitted that the deceased never left a valid will, if at all, and that the document allegedly signed by him on 23 June 1990 could not have been written by the deceased. He questioned its authenticity. The formalities for making a written will are set out in section 11 of the Law of Succession Act (hereinafter the ‘Act’). These are as follows: (a)

That the testator has signed or affixed his mark to the will or it has been signed in his presence by a person he has so authorised;

(b)

That the signature or mark of the testator or the person signing on his behalf is so placed as to give effect to the writing as a will ; and

(c)

That the will is attested by at least two competent witnesses who sign the will in the presence of the testator and must have seen the testator or person authorised by him sign or affix his mark to the will.

The will dated 23 June 1990 was signed by the testator on the last page in the presence of seven witnesses, namely: 1.

David Hugo Njubi

2.

John Njonjo Mugane

3.

Peter Kimani Kamau

4.

Moses Kamuyu Githuri (DW 4)

5.

Simon Peter Kungu (DW 3)

6.

Ephraim Ngugi Kaguora

7.

Paul Waithaka.

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In his own evidence, the applicant stated that he did not attend the meeting on 23 June 1990 in which the will was made. The respondent was present at that meeting. Simon Peter Kungu, who is a brother to the deceased testified that the testator signed the will which he had instructed Githuri to write down at the meeting. The contents of that instrument were clearly recalled by this witness who also stated that Elizabeth Wairimu, one of the daughters, did not attend. He stated that the applicant and two of his brothers Frederick Waithaka Githuri and Leonard Mbugua Githuri were left out of the will because they had mistreated their father.The will clearly stated that they were disobedient to him. It is Simon Peter Kungu’s evidence that they at one time beat the deceased in his presence. Moses Kamuyu Githuri, the eldest son of the deceased, also stated that the three sons never had a cordial relationship with their father. He said he was not in the will because he had been given his share of the land as earlier set out in this judgement. John Njonjo Mugane (DW3), a relative of the deceased, in his evidence stated that he was present and signed the will on 23 June 1990. As to the authenticity of the testator’s signature, the respondent called Fitz Binga Shiroya DW2) to testify. Mr Binga is employed with the Office of the President. He is a finger print expert as well as a Registrar of Persons and a Public Prosecutor. His evidence concerned determining the authenticity of a copy of the Identity Card produced by the applicant as being that of the Deceased. He testified that the original identity card which had been surrendered to the Registrar of Persons and has been in his custody since 1988, had writings which had been filled by hand.This was the procedure before 1997. However, the copy of the card aforesaid though issued before 1997 was typed in. Based on this fact alone, Mr Shiroya concluded that the copy of identity card aforesaid produced in court had been scanned and the images superimposed. It could not be the genuine one. The original had been issued on 3 October 1983, and it is obvious that the copy is not genuine. This testimony leads me to conclude that the applicant is a dishonest person who cannot hesitate to deceive this court by whatever means to gain material enrichment for himself. This falsehood was published to this court in an attempt to challenge an otherwise perfect will.The respondent and her witness, on the other hand, impressed me as credible citizens who stated facts known to them as they were.The evidence as a whole show that the will dated 23 June 1990 was validly made. I, therefore, hold that the grant of probate issued to the respondent on 29 November 1995 was lawfully obtained.

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In the Matter of the Estate of Manibhai Kishabhai Patel alias Manibhai Kisabhai Patel – Deceased19 Nairobi (Milimani) High Court succession cause number 2340 of 1996 (Onyango-Otieno J)

CASE NO. 57

(Where a will is properly executed and attested, any objection founded on the lack of proper execution and attestation would be dismissed) The deceased died testate. The executors, the wife and brother of the deceased, respectively, named in the will applied for grant of probate of the will. An objection was raised by a son of the deceased alleging that the signature on the document was forged. The court found that the will was properly executed by the deceased, and dismissed the objection and granted probate to the named executors.

ONYANGO-OTIENO J: ...It does appear that the main dispute is as to whether the deceased signed the will that appointed the petitioners executors...The main issue therefore is whether the subject will was forged or not. Forgery is an allegation that requires high standard of proof higher than the normal proof within the standards of probability. Of course such proof is not to be as high as is required in criminal cases but I must be fully satisfied that the allegation of forgery has been fully proved. The objector has alleged forgery of the will and he has the burden of proving the same.

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In this case, Honourable Lady Justice Owuor had ordered that both the viva voce evidence and the affidavit evidence be considered. I note that of all those who did swear various affidavits, only the first petitioner who is the widow of the deceased did not appear before me to give evidence. All the others gave evidence and I have set out herein above their evidence. The applicants witnesses, Babubhai K Patel (PW1) Atul C Patel (PW2) and Manubhai N Patel (PW4) each maintains that he saw the deceased Manubhai Kishabhai Patel alias Manubhai Kisabhai Patel actually sign the will in their presence on 12 May 1996 in one of the rooms in the house of Babubhai Patel in the afternoon. The objector says that from the time the deceased arrived in Nairobi from Kisumu by aeroplane, he was with the deceased throughout till 10 pm when the deceased retired to bed and did not witness the signing of the will by the deceased and the witnesses i.e. PW2 (Atul) and PW4 (Manubhai). He says that Atul had told him under what circumstances his (Atul’s) signature appeared in the will, and his mother, the first petitioner had been told of the existence of the will by the deceased but the will produced in court could not be the same will as the will in court had a forged signature . He has attached a handwriting expert’s report. 19

The judgement appears to be correct on the issue of execution of a will; its main weakness is that it makes no reference at all to the provisions of the Law of Succession Act relating to execution of wills and testament, nor did the court cite any judicial determinations on the point. It would be expected that the court while determining whether or not a will was properly executed would refer to and rely on the provisions of the relevant law dealing with execution of wills.

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I have considered the entire evidence before me. The handwriting expert’s evidence, while it must be given serious consideration, must nonetheless be evaluated as all evidence before a court of law. In the case of Elizabeth Kamene Ndolo v George Matata Ndolo, the Court of Appeal had this to say on the expert evidence which was also the evidence of a handwriting expert:

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‘The evidence of PW 1 and the report of Munga were, we agree entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decided whether or not it believes the expert and give reasons for its decision. A court cannot simply say: ‘Because this is the evidence of an expert, I believe it.’

The evidence of DW1, the handwriting expert was clearly to the effect that all the documents he examined were photocopies i.e. photocopy of the will, photocopy of pages 2 and 3 of the passport of the deceased; photocopy of the Kenya Revenue Authority,VAT signed by the deceased, photocopy of the balance sheet and photocopy of Trust Form all signed by the deceased. He received these from the offices of the objectors learned advocates. He agreed in cross-examination that whenever one tries to reproduce something one loses small details and that the original may contain some other areas which would not appear on the carbon copy. In my humble opinion there is bound to be difference when one is examining photocopies and when one is examining original documents. I have myself seen the documents that were examined and which were marked specimen 1, which do not even show the name of the second witness to the will properly due to photocopying. In fact specimen 1 page 3 leaves out the names of the second witness completely. Specimen 2 seems to leave out a letter before ‘Ms’ the first signature and specimen 3 does not show even the signature properly. Much as I may accept that with modern facilities it may be possible to get comparisons done of photocopies of signatures, still in the case before me, where I have not been shown which modern method was used, it does not appear to me that an accurate result could have been obtained purely by comparing photocopies. Be that as it may, the will in question was allegedly signed on 12 May 1996; I was told when the passport was signed.That date may be in the seal on the passport but as only a copy was availed, I cannot read it and there was no evidence on it. Kenya Revenue Authority VAT form was apparently signed in December 1995 and balance sheet was signed apparently on 17 May 1989. Thus the document signed nearest to the date of signing the will was Kenya Revenue Authority VAT form and that was signed about six months to the date of signing the will. as I have said, I found it difficult to read the signature in that document due to photocopying process which left blank marks all over it. As to the other form signed on 17 May 1989, there is a clear marked two differences between the date of signing the will and the date that document was signed. The witness admitted that when one reaches old age it may have effect on his signature in some areas. Further he also admitted that he was not told that the deceased was old, sick and diabetic whereas his evidence was that the sickness may have some effect on the signature. He said in his report inter alia as follows: ‘These letter forms showed a hand movement in the execution of the strokes which I found to be completely different from the hand movement that formed these letters in the two signatures found in the will.’

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One cannot stop the feeling that diabetic and sick conditions including the state and circumstances the deceased was in on 12 May 1996, only some hours before flying out of Kenya to attend his son’s funeral, could have made the differences that the handwriting expert could have observed. If the handwriting expert had been fully briefed on all these conditions, his opinion may have been different. In so far as all these were not considered and the expert evidence was based only on the photocopies, and in so far as the expert witness was informed beforehand the questioned signatures, I do not find his evidence of any help to me particularly, I do not find his evidence of the standard required to prove forgery of the will the subject matter of this suit. However, the objector also says that he felt the will was formed because, he was with his father the deceased all the time on the date the will is alleged to have been signed. There is evidence of people going into and out of that house of PW1 for the whole of that afternoon of 12 May 1996. They were people who were offering their condolences to the deceased over the sad demise of his son in South Africa. Under these circumstances, it is difficult to accept that the objector could have kept full eye over the deceased. Further one has to accept and take judicial notice of the fact that the deceased may not have made the signing of the will a public issue for all to see all and particularly, he may have decided rightly not to tell the objector as objector, being his son not required to know the contents of the same will before the deceased’s death. The objector also says that the first petitioner had told him that he deceased had told her he had made a will leaving everything to her (first petitioner). even if I were to accept this, all it would mean to me is that PW3 Chhaganbhai Mutibhai Patel whose evidence I do accept was right when he said that the deceased gave him a piece of paper with instructions in it telling the same Patel to draft a will out of the same instructions. That sheet of paper containing instructions out of which the subject will was drafted could have been what the deceased could have been referred to when he talked to his wife the first petitioner. The deceased was a layman in legal matters and could have considered what later turned out to be instructions sheet as his will as indeed that sheet he had drafted contained what was his will in layman’s language and which PW3, an advocate relied upon to draft the will. There was also an allegation that as the deceased was so shocked by the death of his own son and was sickly he could not sign his will. In my opinion the death of the deceased son plus the prospects of his travelling by air to London when sick and against his doctor’s advice (as was in evidence) could very well have brought into the mind of the deceased the reality and necessity of finalising matters about his will before he left Kenya. There was the allegation about Atul C Patel having not known what he was signing as it was alleged that he was told by PW1 to sign some documents, which were share certificates, and other documents. These allegations came from the objector and DW3 Mohamed Yunis Sroya. I heard Atul Chimanbhai Patel give evidence before me. He explained under what circumstances, he had signed the will and denied what he was said to have told either the objector alone or the objector together with Sroya and objector’s wife. Two things are clear as to what objector and Sroya say. First is that it appears this lunch at Rickshaw Restaurant was purposely arranged to trick Atul C Patel into shedding some information on the question of the signing of the will. In other words it was meant to enable the objector gather evidence. Secondly Sroya ended his evidence by adopting contents of his affidavit filed into the court on 26 February 1997.That affidavit is not dated not stamped by the court to indicate when it was filed. Notwithstanding that, in that affidavit he readily admits at paragraph 12 that

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he cannot speak Gujarat and can only understand the gist of what was being discussed in Gujarat.The conversation at Rickshaw Restaurant went on partly in Gujarat, partly in Hindi and partly in English. Under these circumstances one may ask how much this witness heard on his own and how much he was informed by the objector. I also note from his same affidavit that he was helping the objector all through in this matter so that one cannot say he was an independent witness. I do agree that Atul (PW2) an employee of PW1 stood a chance of being influenced by PW1 but his evidence as to how he came to sign the will did not leave any doubt in my mind that he acted on his own and did not append his signature to the subject will at his place of work. I also find that he was not tricked into signing this will without his knowing what he was signing. I accept his evidence and reject the evidence of the objector and Sroya which was in my mind a poor attempt to discredit PW2. I have referred to allegations about the circumstances under which the first petitioner did sign documents in respect of the petition. First petitioner was not called as a witness, but the parties and particularly the objector maintained that she was coerced into signing the application and affidavit in support thereof. There was an affidavit she alleged to have signed in the objectors advocate’s office which the objector urged me to accept. This first petitioner swore several affidavits most of which denounced her affidavit sworn in the offices of the objector’s advocates. Even if I were to strike all of them out as Mr Goswami has asked me to do, one thing still remains and that is that she is not a witness to be relied upon in support of either side and understandably so because she is the mother of the objector and is currently living and being taken care of by Pradip Patel.Whatever is her evidence, it is clear that on the day the subject will was signed she was not in Nairobi . Secondly all she is alleged to have said is that the deceased told her that he (deceased) had made a will leaving her everything.There is no other will produced by either party and so there is no question as to which will should be operative and which one should be rejected. As I have said hereinabove, it is possible that her husband was talking about this subject will which in any case leaves her substantial properties. In my mind her evidence has no bearing as to whether this subject will is forged or not. If it is being alleged that PW1 Babubhai Patel had hidden the true will of the deceased, the first evidence of PW3 who was deceased’s advocate to the effect that this subject will contains the contents of the will he drafted in accordance with deceased’s instructions and given to the deceased to go and type goes directly against that allegation. It thus becomes the duty of the objector to prove that another will existed. That duty has not been discharged to my satisfaction. I do agree that under these circumstances evidence of the first petitioner, Shardaben Manubhai Patel would not have added more to the matter in issue namely whether or not the subject will was forged. The next matter I need to consider is the allegation by the objector that the will gave his cousin property at the expense of the members of the family. My answer to that is that if he seriously feels so then remedy is not necessarily on his being appointed administrator of the estate of the deceased. His remedy lies in section 26 of the Law of Succession Act. I have considered the application, the objection and cross-petition. PW1, PW2 and PW4 were present at the time of signing the subject will. They testified as to how the will was signed. I do accept their evidence. I do accept that they did witness the deceased sign the will and they also did sign it on the same day at that time. As I have said, I do not accept the evidence of DW2 and DW3. I have also given my humble

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opinion on the effect of the evidence about the first petitioner who is the widow of the deceased’ that takes care of the evidence of DW4 and DW5. As to DW1, I have stated that his evidence falls far short of what is required to prove forgery. PW3’s evidence is accepted. In conclusion, I do accept that the applicants have proved that the will was properly executed by the deceased. The objector has failed to prove that the will was forged. The objector also submitted that the petition is fatally defective and sought its being struck out. I have stated that the first petitioner did not give evidence in court. I have also stated that from what she stated in her affidavits I cannot rely on her evidence as she seems to have been under pressure from both sides for the reasons I have stated above. Further the affidavit the objector is relying on to discredit all her other affidavits is in my mind a suspect in that it was sworn on 18 February 1997 but was never filed until 5 September 1997 some six and half months later. Secondly the same affidavit being challenged i.e. affidavit in support of the petition was filed on 4 November 1996. The objector took no action to have the affidavit struck out of the record till now. I would not do that on such doubtful evidence as that of the first petitioner. Thus I do find that the petition is not defective. The upshot of all the above is that this petition succeeds. There shall be a grant of probate of the last will of Manubhai Kishabhai Patel (also known as Manibhai Kisabhai Patel) to the petitioners Shardaben Manubhai Patel and Babubhai Kishabhai Patel. The objection filed by Dilip Patel and cross-petition filed by the same Dilip Patel are hereby dismissed. Costs to the petitioners. In the Matter of the Estate of Naomi Wanjiku Mwangi (Deceased) Nairobi High Court succession cause number 1781 of 2001

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(Koome J) (A will must meet the requirements of section 11 of the Law of Succession Act) CASE NO. 58

An objection was raised to a petition for grant of probate of the will of the deceased, on the ground that the will was invalid as it had not been duly executed in accordance with the law. The objector was the deceased’s wife in the traditional woman-to-woman marriage arrangememnt, while the petitioner was a child that she was taking care of. The court found that the will was not validly made, and further found the objector as wife of the deceased was entitled to a share in the estate. The court also found that the objector was a child the deceased had taken in as her own and therefore he was a child for succession purposes.

KOOME J: I have formulated the following issues arising out of the evidence: 1.

Did the deceased leave a valid will?

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2.

Who should be appointed the executor20/administrator of the deceased estate?

3.

Who are the beneficiaries of the deceased?

4.

Did the deceased contract a woman to woman marriage under Kikuyu customary law of marriage with the objector?

5.

Is the objector the customary wife of the deceased?

In answering the first issue, I wish to refer to section 11 of the Law of Succession Act Chapter 160 which provides: Written Wills ‘No written will shall be valid unless: The testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;

(b)

The signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c)

The will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.’

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(a)

20

The executors are not appointed by the court, but by the testator in the will.

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According to the petitioner, the deceased dictated her death wishes which were recorded by his father and since the deceased was too sick to sign the document, the petitioner’s father signed on her behalf. The question that begs for an answer is whether the petitioner, his father, mother and brother who witnessed the alleged writing of the will are competent witnesses,21 moreover, even if the said will was executed by the petitioner’s father at the direction of the testator, there is nothing in the will to indicate that the petitioner’s father was executing the will on behalf of the deceased and thereby giving it the effect that it was executed on behalf of the deceased. The will is written in the language of the first person and not on behalf. In this regard therefore, I am not satisfied that the deceased herein left a valid will.22 Secondly, was the deceased who was seriously ill in a position to execute a sound judgement on how the property should be disposed of? The deceased in this case can be regarded as having died intestate and this takes me to the next issue of who should be the administrator of the deceased estate. Evidence was adduced to the effect that the objector was married to the deceased since 1972 under Kikuyu customary law of woman to woman marriage. There is no dispute that the objector lived with the deceased from 1972 up to the time she met her death on 5 May 2001 either at Maringo Estate, Dandora or at Maragua where the deceased had a parcel of land . The objector gave birth to a child and named her after the deceased. This daughter of the objector testified and confirmed that the deceased used to pay her school fees and all other obligations.The vexing question for determination is whether the objector’s relationship with the deceased was that of an employee or that of a customary wife under Kikuyu customary law of marriage. Does Kikuyu customary marriage between women and women exist?

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The provisions of Chapter 160 in regard to this type of marriage are silent but rule 64 of the P and A rules Chapter 160 makes no mention of the application of African customary law: ‘Where during the hearing of any cause or matter any party desires to provide evidence as to the application or effect of African customary law he may do so by the production of oral evidence or by reference to any recognised treatise or other publication dealing with the subject, notwithstanding that the author or writer thereof shall be living and shall not be available for cross-examination.’

21

22

The court asked a rhetorical question and left it unanswered. This was a relevant point of law that the court should have dealt with exhaustively, and thereafter made a conclusion on it based on both law and fact. The court cited section 11 of the Law of Succession Act, which does not define ‘competent witness.’ A ‘competent witness’ is defined in section 3 of the Act to mean a person of sound mind and full age. What the court ought to have considered in this matter was whether the petitioner, his father, mother and brother were competent witnesses in terms of their being persons of sound mind and full age. It would appear that there was no evidence to prove that they were not competent witnesses. The suggestion by the court, therefore, that these witnesses were not competent has no foundation. The court should have sought guidance from relevant statutory provisions and case law before making the suggestion. Unfortunately, no law was cited to support the court’s suggestion. In its ruling the court cited section 11 of the Law of Succession Act, yet there is nothing in section 11 which requires that where a will is signed on behalf of another the person signing should indicate that they are doing so on another’s behalf. Section 11, at paragraph (a), only requires that where the document is signed by another on behalf of the testator the transaction should be in the presence and by the direction of the testator, nothing more. In this case it would appear that the will was indeed signed in the presence of the testator. The only issue worth considering was whether the same was by the direction of the testator, in view of the testator’s state of health.

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In this regard I wish to make reference to a publication by Eugene Cotran Restatement of African Law Volume 1 page 13 Woman to Woman Marriage: ‘Where a husband dies leaving a childless widow, who is past child bearing age, the widow, may marry a wife. The widow pays rucacio to the family of the woman selected, and arranges for a man from her deceased husband’s age set to have intercourse with her. Children resulting from such intercourse are regarded as the children of the widow’s deceased husband.’

According to the husband of the objector, this was the case although the deceased herein was not a widow; she was barren and persons past child bearing age when she married the objector.23 In furtherance of the above restatement I wish to refer to the Judicature Act Chapter 8 section 3 with particular emphasis to subsection (2). This Act makes provision as regards the exercise of jurisdiction of this court. Section 3(2) provides: ‘The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.’

If this type of marriage did exist under the Kikuyu customary law, is it repugnant to law and morality? Under the Kikuyu customary law this woman to woman type of marriage was practiced only for purposes of reproduction, it was not a sexual relationship. A barren woman was supposed to beget (sic) a woman of a child bearing age for purposes of getting children with other men (in most cases men whom the husband would choose but sometimes the wife was free to choose her own men).

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A woman to woman marriage in this sense if it was accepted by society and practiced by, with the approval of the community is not repugnant to justice and morality. I would take it that both families accepted this marriage since they exchanged visits and money.

23

It is doubted whether the authority on customary cited by the judge supports the conclusion that the court comes to in the end. Cotran talks of a custom where childless widows take wives upon the death of their husbands. He does not address the case of an unmarried woman who is unable to have children. The custom that Cotran was writing about does not apply to the circumstances of this case. The court could only find in favour of the objector, to the effect that she was the customary law wife of the deceased, upon other evidence that the custom referred to by Cotran extends to cover the case of unmarried barren women. Otherwise, there was no legal foundation for the court finding that the arrangement between the deceased and the objector was a valid customary law woman to woman marriage.

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I venture to say that in modern Kenya this customary practice that treats women as mere chattels consigned into bondage for purposes of reproduction or domestic servitude only to gain inheritance rights would be frown upon. I say this because there are ways of getting children if one is biologically challenged; one could adopt children to complete their lives and families as they deem fit, or even resort to other scientific methods if they are economically endowed.24 In this case I have evaluated the evidence given herein critically. The objector lived with the deceased since 1972. According to her she believed she was a wife. She gave birth to a child and named her after the deceased, the deceased educated this child as her own. I find the objector lived with the deceased for an uninterrupted period of 29 years. According to the petitioner and the alleged will by the deceased she bequeathed to the objector a parcel of land in Maragua. If indeed this was true, why the objector was summoned by the deceased on her deathbed and why was she given land at Maragua if she was a mere househelp.25 It is also not disputed that the families of the objector and the deceased came together to celebrate the relationship between the deceased and the objector. According to the petitioner’s witness this was to celebrate the fact that the objector’s father had given his daughter to the deceased. I find this explanation rather unusual and on a balance of probabilities, I am satisfied that this celebration was most probably in regard to the deceased customary marriage to the objector. It is rare that people celebrate when they employ a househelp. This conclusion is reinforced by the fact the petitioner and his witnesses have not adduced evidence to support the allegation that objector was an employee. For instance, how much was she earning? Why did she acquire some beneficial rights over the deceased property that she continued to reside there up to the date if she was a mere househelp? Why did she insist on burying the deceased, and why was there commotion at the burial? In my view there was a deeper relationship between the deceased and the objector and I am compelled by the evidence to conclude that the objector was the deceased wife under the Kikuyu customary law of marriage. It would not be prudent or justifiable for the court to disregard this customary practice, it would be prejudicial and totally unjust for the objector who came into this relationship and lived in it for 29 years believing that she is a wife and her child Naomi Wanjiku was a child of the deceased whom she had taken into her family as her own.26 24

25 26

The court here appeared to take two contradictory positions. One, it took the position that the custom of contracting woman to woman marriages was not repugnant to justice and morality; and two, this custom treats women a mere chattels, it amounts to bondage and domestic servitude. Does the latter position not mean, therefore, that the custom is in fact repugnant to both justice and morality? What really is so objectionable about the woman to woman marriage arrangement? It usually is entered into by two consenting adults.There is always room for either party to opt out if the arrangement does not meet the needs of the concerned party. A testator is free to will away their property as they wish, including to their faithful servants and employees. Regarding the issue of the deceased taking the child into her family as her own, the court does not cite any law to support its conclusion on this point. The language chosen by the court appears to borrow from sections 3(2) and 29(b) of the Law of Succession Act. Unfortunately, both provisions are of no application to the circumstances. They are tailored to cover the case of a male deceased person, and cannot be applied to a female deceased person. Indeed, in Willingstone Muchigi Kimari v Rahab Wanjiru Mugo Nairobi Court of Appeal civil appeal number 168 of 1990 (Gachuhi, Muli and Akiwumi JJA) the Court of Appeal took the view that section 3(2) of the Law of Succession Act only caters for children who have been recognised by a male person as his own or in respect of whom he has assumed permanent responsibility. Section 29(b) recognises as the dependant of a deceased male person a child that the deceased male person had taken into his family as his own and which child was dependent on the male deceased person immediately prior to his death. In the case of section 29(b) that consideration would be made only where the court is faced with an application for reasonable provision properly brought under section 26 of the Law of Succession Act, which was not the case here. If the court had considered these provisions it would have come to a different conclusion.

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I am also satisfied from the evidence adduced that the petitioner had been taken by the deceased as her own child and therefore he is dependent of the deceased.27 There is overwhelming evidence that the petitioner lived for most of his life with the deceased, the deceased gave him accommodation in the house where she used to live in Maringo Estate. In this respect and in order for this court to take into account the petitioner’s beneficial interests,28 it would be prudent to issue the letters of administration to both the petitioner and the respondent. Accordingly these are the orders of the court. Daintree v Butcher and Fasulo (1888) 13 P and D 102 (Rather than being present at the execution of the will by the testator, the witnesses may sign after the testator has signed provided that he acknowledges his signature to them)

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CASE NO. 59

A testatrix asked two witnesses to sign her codicil, which was entirely in her handwriting. She did not tell them that it was a testamentary paper, and they did not even know the nature of the document they signed. They were, however, clear that her signature was on the document at the time they executed it. It was held that there was sufficient acknowledgement by the testatrix of her signature, and probate was granted of the will.

COTTON J: In this case, it is not disputed that the signature of the testatrix is upon the codicil in question, and it is not disputed that it was written before the witnesses came into the room. The two witnesses, in the presence of the testatrix, signed their names below her signature, which was so placed that they could have seen it.The evidence of the attesting witness...shows that she was asked to sign as a witness. It is said that she was only asked to sign before she came into the room, and that this was not a request by the testatrix amounting to the acknowledgement of the signature. if this was to be relied upon, the cross-examination ought to have been directed to it, but nothing of the kind was done, and as the evidence stands, though it is not as clear as might be wished, I think it must be taken that the other attesting witness, Miss Hepburn, after Miss Whimper had come in, and in the presence of the testatrix asked her to sign as a witness. Now it is admitted law that it is not necessary for the testator to say ‘this is my signature,’ but if it is placed so that the witnesses can see it, and what takes place

27 28

Ibid With respect this cannot be correct, if the court found that the deceased died intestate and that the objector was her widow, it follows that Part V of the Act came into play, and the estate became available for sharing between the objector and her child to the exclusion of everyone else. The court apparently reasoned as if it was dealing with an application for reasonable provision. Once it concluded that the objector was a widow, it meant that the objector and her child were the only survivors of the deceased according to Part V of the Act. Consequently the petitioner had no interest at all in the estate. When the sentiments of the Court of Appeal in Willingstone Muchigi Kimari v Rahab Wanjiru Mugo Nairobi Court of Appeal civil appeal number 168 of 1990 (Gachuhi, Muli and Akiwumi JJA) are taken into account it becomes clear that the petitioner could not be a child that the deceased had taken into her family as her own

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involves an acknowledgement by the testator that the signature is his, that is enough. In my opinion, when the paper bearing the signature of the testatrix was put before two persons who were asked by her or in her presence to sign as witnesses that was an acknowledgement of the signature by her. The signature being so placed that they could see it, whether they actually did see it or not, she was in fact asking them to attest that signature as hers. Re Beadle (deceased): Mayes and another v Beadle [1974] 1 All ER 493 (Goff J) (The signatures of the attesting witnesses must be so placed on the document as to show an intention to ratify the testator’s signature)

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CASE NO. 60

A testatrix told two friends of hers that she wanted their help in making a will. She dictated the terms and they were reduced into writing by one of the persons present. The testatrix signed on the right hand corner of the document. One of the persons present also signed the paper. The testatrix then took the paper and put it inside an envelope, and wrote on the envelope that that was her last will and testament. One of the persons present then wrote at the back of the envelope a certification that the contents of the paper inside was written in their presence, and both of them appended their signatures under the certification. The testatrix had named the two executors of the will, and upon her death, they sought probate of the letter either alone or with the envelope. It was held that the will was improperly attested, and probate was denied.

GOFF J: I now have to determine whether the will propounded by the plaintiffs, either the single sheet alone or that sheet with the envelope, is a will duly executed in accordance with the statutory requirements. There is no other question. I approach this problem in the way which Willmer LJ approved as proper in Re Bercovitz [1962] 1 All ER 552 at 558), that is: ‘I approach this question from the point of view that this man (in my case this woman) clearly wanted to make this disposition and that any court should give effect to his wishes if it is at all possible to do so.’

Even so, I have regretfully come to a clear conclusion that I cannot uphold this will on either basis without drawing distinctions where none exist or flying in the face of authority; and I must therefore pronounce against the will. I will deal first with the first case for the paper alone. Counsel argued (albeit, very understandably, with little confidence and rather as a tabula in naufragio) that since the testatrix meant by her signature at the top of the paper to authenticate the whole, that is good enough; and he cited Re Hornby [1946] 2 All ER 150 page 171, Re Roberts [1934] All ER Rep 62 103 LJP 61 page 102 and Re Usborne [1909] 25 TLR 519,

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referred to in Re Stabman (1952) page 319 at 323). In my judgement, however, such an argument is wholly untenable in the face of the express terms of the Wills Act Amendment Act, 1852, section 1...29 Turning to the paper with the envelope, it is sufficiently connected to be admitted to probate together if otherwise duly executed, and that was not disputed. in my judgement, however, the plaintiffs must satisfy the court that, in writing her name on the front of the envelope, the testatrix meant that to be a signature to her will, and that they cannot do in the light of Re Bean [1944] 2 All ER 348 page 83). The words there, and also in Re Mann [1942] 2 All ER 193 page 146), were ‘The last will and testament of ’ and then follows the relevant name, whereas in this case they are ‘My last will and testament’ and then follows the name ‘E A Beadle.’ But, in my judgement, that is a distinction without a difference. I am satisfied that, on the facts of this case, the testatrix did not intend her name on the envelope to be a signature to her will, but merely a label. In Re Mann, the testatrix said that the documents – i.e. paper and envelope – were her will and asked the witnesses to sign. they signed the contents. She did not; but she did sign the envelope.That was distinguished in Re Bean, where there was no calling attention to the combined documents as the will...

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The present case, therefore, in my judgement, falls within Re Bean and not Re Mann, and indeed it is an a fortiori one, since in Re Bean the judge was not satisfied because he thought the testator had forgotten he had not signed the paper. Here the testatrix had in fact signed it and clearly knew that she had. Moreover, Mr Mayes said she wrote out the envelope because he said he would put it with her papers. The inference is clearly that she signed the envelope not to sign her will, which she had already done, but to identify the document which was going to be put away... That is sufficient to dispose of the case. But, lest I be wrong on that, I should also deal with another difficulty in the plaintiffs’ way, which I find fatal to their case, and that is that neither of the witnesses attested her signature on the envelope. Mr Mayes wrote what he did on the back of the envelope and they both signed, not to attest what was on the front, but to place on record that although the paper inside was signed by only one of them, both were present when it was written and signed. Mr Mayes’s evidence was: ‘It was certifying that the document inside was written in our presence.’ Counsel: ‘So the purpose was to recognise the fact that when she had signed at the top, you were both present’ Answer: ‘Yes.’ In Mrs Mayes’s evidence, counsel asked: ‘When you signed the envelope, is it right you were certifying the contents of the letter had been written in the presence of yourselves?’ Answer: ‘That is what we meant.’ *** (a)

Signature

The Law of Succession Act does not define signature.Where disputes arise in succession matters as to what amounts to the signature of the testator or of an attesting witness, the court resorts to the common law. Cases numbers 61 and 62 deal with such matters.

29

The Kenyan law is section 11(c) of the Law of Succession Act, whose position differs from the English statute the subject of the suit. The provision does not require that the attesting signatures be affixed at any particular position on the document..

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In the Estate of Cook (deceased): Murison v Cook and another [1960] All ER 689 CASE NO. 61

(Collingwood J) (The signature of the testator need not consist of a name at all) Facts are set out in the judgement.

COLLINGWOOD J:In this case there is no doubt that the requirements of the Wills Act, 1837, have been complied with so far a attestation is concerned; the only question is whether the will has been signed within the meaning of that Act. By this document dated 28 October 1956, the deceased Emma Edith Cook begins by saying : ‘I Emmie Cook of 38 Maida Vale, W 9, declare this to be my last will which I make’ etc ; in the presence of two witnesses instead of signing her name SHE PUT ‘You loving mother.’ Her words were – ‘Please Leslie be kind to Dot.Your loving mother.’ Counsel for the plaintiff has referred me to several authorities, the most important of which is In the Goods of Sperling ((1863) 3 Sw and Tr 272). That was a case where the deceased having signed his will in the presence of a servant, the servant described himself as ‘Servant TO MR Sperling,’ not writing his name or giving any further identification. That was held to be sufficient attestation and subscription by Wilde J, giving the short judgement, said (at page 273): ‘I think that there is a sufficient attestation and subscription. I am satisfied that Saunders (i.e. the servant) wrote the words which appear on the will, intending thereby an identification of himself as the person attesting.’

I think that the same test would be applicable to the case of a testator. In Baker v Dening ((1838) 8 Ad and El 94) the headnote reads as follows:

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‘Under the Statute of Frauds (1677) the making of a mark by a devisor, to a will of real estate, is a sufficient signing; and it is not necessary to prove that he could not write his name at the time.’

Then, in In the Goods of Redding (otherwise Higgins) ((1850) 2 Rob Eccl 339), the headnote reads: ‘A testatrix, having duly executed her will under an assumed name, subsequently altered the will by erasing that name, and signing her true name; but the witnesses did not subscribe the will as altered. Probate was granted of the will as it originally stood, as the court considered the assumed name might be regarded as the mark of the testatrix.’

Finally, there is the decision in Hindmarsh v Charlton ((1861) 8 HL Cas 160), where Lord Campbell LC, in the course of his own opinion said (at page 167): ‘I will lay down this as my opinion of the law: that to make a valid subscript pin of a witness, there must either be the name or some mark which is intended to represent the name.’

Applying those principles to the present case, I am quite satisfied here that the words ‘Your loving mother’ were meant to represent the name of Emma Edith Cook, the testatrix, and accordingly, I pronounce for the will of 28 October 1956, in solemn form and the terms of compromise will be made a rule of the court.

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In the Goods of Chalcraft, deceased, Chalcraft v Giles and Rance [1948] All ER 700 P 222 (Willmer J) (Part of a signature of a testator may be sufficient to validate a signature) CASE NO. 62

A testatrix, on a point of death, started to sign her normal signature ‘E Chalcraft’ on a codicil but after writing ‘E Chal,’ she became too weak to continue. The executrix sought probate of a will and the codicil of the deceased, but the same was resisted by some beneficiaries who argued that the codicil was not properly executed, and the court ought to grant probate to the will and not the codicil. Probate was granted to both documents. The court held that the signature was valid, it was the best the testatrix could do in the circumstances.

WILLMER J: ...There must either be the name or some mark which is intended to represent the name. It seems to me that I must have regard to all the facts of this case: the fact that this lady was in an extremely weak condition; that she was lying, if not quite on her back, very nearly on her back, in a position in which it must have been very difficult to write at all. I must ask myself the question whether on all facts I can draw the inference that what she wrote was intended by her to be the best that she could do by way of writing her name. It seems to me that if I come to that conclusion, then I ought to accept this writing of ‘E Chal’ as being in law the signature of the deceased. Bearing in mind all the circumstances of the case – the weakness of the deceased, the difficulty of writing in that position – I come to the conclusion that this mark ‘E Chal’ on this document does amount, in all the circumstances, to a signature on the part of the deceased. Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

*** (b)

Position of the Signature of the Testator

Section 11(b) provides that the signature of the testator, or of the person signing on their behalf, is to be so placed on the will as to appear intended, by so being placed, to give effect to the writing as the will of the testator. The provision does not talk of the exact spot where the signature should be placed. Cases numbers 63 and 64 deal with circumstances where the signature is placed on an envelope carrying the otherwise unsigned will.

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In the Goods of Mann, deceased [1942] 2 All ER 193 P 146 (Langton J) (Where the testator does not sign the will document, but appends his signature or writes his name on the envelope containing the will document, the validity of the document will depend on the intention of the deceased)

CASE NO. 63

The deceased wrote her will on a piece of paper and invited two persons to sign it as her witnesses. She did not herself sign on the document, but she placed it in an envelope and wrote on it:‘The last will and testament of Jane Catherine Mann.’ Later on she took the envelope containing the will and put it in a larger envelope and sealed the larger envelope with sealing wax and handed it over to her executrix. Upon her death probate was sought of the will. The court admitted the document containing the will and the envelope,with the writing of the deceased to the effect that that was the last will of JC Mann, to probate.The court was of the view that the writing on the envelope was intended by the deceased to be her signature, and it was meant to authenticate the contents in the other document as her will.

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LANGTON J: There is no suggestion that the dispositions contained in the written paper do not represent her wishes as to the distribution of her property. The sole difficulty which arises is as to the sufficiency of the signature on the envelope...the courts have laid down and held fast to the rule that no document can be allowed to form part of a will which was not physically or otherwise connected to the signed portion of the will at the moment of signature... The rule as to attachment physically or otherwise, of the documents, is clearly designed to obviate the possibility of fraud ...Where the circumstances are so plain and so well ascertained as to preclude all possibility of fraud, the reasons supporting the strict application of the rule are greatly diminished. I do not say that they altogether disappear, for there is always a certain safeguard against subsequent possibilities of fraud in the preservation of an unvarying rule. Secondly, if an unattached paper is to be admitted at all, there is much to be said in favour of an envelope which may reasonably be held to have a far closer relationship to a document which it encloses than a second and wholly disconnected piece of paper...Thirdly, the will in the present case is a holograph document, and was written with the same pen and on the same occasion as the envelope. Fourthly, both paper and envelope were written in the presence of the attesting witnesses, the first witness being present during the whole of the writing of both documents and the second during the writing of the envelope amid the latter part of the dispositive paper. Finally, the history of the documents between the time of their making and the date of the death of the testatrix has been clearly ascertained and provides strong confirmatory evidence of the completely genuine nature of the transaction ...

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In the Estate of Bean [1944] 2 All ER 348 P 83 (Hodson J) (Where the testator does not sign the form of the will, but appends his signature or writes his name on the envelope containing the will, the validity of the document will depend on the intention of the deceased of putting his signature or writing his name on the envelope instead of the will itself)) CASE NO. 64

The deceased used a printed form of will which contained the usual formal parts and was to be completed in the deceased’s handwriting down to and including the attestation clause. The deceased filled the form, but did not sign it at the space provided for signature. He wrote his name ‘George Bean’ on the envelope enclosing the will, as well as his address. The attesting witnesses properly signed their names and added their addresses in the spaces provided in the form for that purpose.When the executrix of the will sought probate, it was held that the document was not a valid will as the same was not validly executed by the testator.

HODSON J: ... It is, therefore, necessary to determine, first, whether the name ‘George Bean,’ written on the envelope, is a signature at all. If this question is answered in the affirmative, then it is necessary to determine whether or not it makes any difference that the signature was written on a separate piece of paper.

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The executrix has contended that the facts in this case are so near to those which were considered by Langston J in the Goods of Mann [1942] 2 All ER 193, page 146 page 146 as to be virtually undistinguishable. On the face of the case which I have to consider I find it impossible to answer the first question in the affirmative. The executrix has sworn that she did not know that the deceased had not signed the will form, and it appears to me to be plain that this omission on the part of the deceased was purely accidental in that he failed to sign his name in the space provided for the purpose..The writing on the envelope was equally clearly, I think, put there for the purpose of identifying the contents of the envelope and not as a signature at all. The deceased never indicated that the testamentary document and the envelope together constituted his will. He had written his name not only on the envelope, but also on the endorsement which appears on the back sheet. It is true that the endorsement was not visible to the attesting witness whereas the writing on the envelope was seen. Nevertheless, in my opinion, it is impossible to be satisfied that the deceased intended to give effect to the will by writing on the envelope since in all probability, he, like the executrix, was under the impression that the had already signed the will on the form itself. The motion, therefore, fails on the ground that the name ‘George Bean’ on the envelope is not the signature to the will. I should add that, had it been possible here to find as a fact that the name on the envelope was put there as the signature to the

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will, I should have regarded the facts in this case as indistinguishable from those in the Goods of Mann [1942] 2 All ER 193 page 146. ***

4.7 WILL WRITTEN

IN

COMBINATION

OF INK AND

PENCIL

The Law of Succession Act does not deal with a situation where a will is written in a combination of pencil and ink. Case number 65 is the English law position on the matter. In the Goods of Adams (1872) LR 2 P and D 367 (Lord Penzance) (Where a will is written in a combination of pencil and ink, a rebuttable presumption arises that the writing in pencil is merely deliberative)

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CASE NO. 65

The testatrix filled up a printed form of a will in her own handwriting, partly with ink and partly with a pencil. The attesting witnesses did not see the writing when they attested the will. A residuary legatee sought grant of representation with the will annexed, without the pencil writing, on the ground that the sense of the instrument was clearer without them. It was held that the words in pencil were deliberative only, and probate was granted without them.

LORD PENZANCE: If the part written in ink is taken with the printed words, the will is capable of being read straight through; but, beyond the writing in ink, there is some pencil writing, and some of the words in pencil are under those in ink. It is clear, therefore, that some of the dispositions are intended to be superseded by others; and, that being so, the presumption is, that the writing in ink is the will, and not the pencil writing, especially as the former is of such character as to work in with the printed matter. Not only is the pencil writing written over, but it is partly rubbed out. I conclude, therefore, that it was the intention of the deceased to supersede the pencil writing, and it will be excluded from the probate. ***

4.8 INCORPORATION

OF

DOCUMENTS

BY

REFERENCE

Section 12 of the Law of Succession Act legislates the common law position on incorporation of documents by reference. It states: ‘If a testator, in a will or codicil, refers to another document than actually written, and expressing any part of his intentions, that document, where it is clearly identified as the document to which the will refers, shall be considered as forming part of the will or codicil in which it is referred to.’ Cases numbers 66, 67, 68 and 69 state the principles governing incorporation of documents by reference and illustrate the application of those principles in given situations. There is apparently little Kenyan case law on that subject.

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Allen v Maddock (1858) 11 Moo 427; 14 ER 757. (Rt Honourable T Pemberton Leigh) CASE NO. 66

(Where there is a reference in a will to any written document, described as then existing, in such terms that it is capable of being ascertained, such document would form part of the will of the deceased, and parole evidence is admissible to ascertain the document) The facts are set out in the excerpt of the judgement.

RT HONOURABLE T PEMBERTON LEIGH: On 13 September 1856, being then on her death-bed, she duly executed a codicil, thus headed: ‘This is a Codicil of my last Will and Testament.’ By this codicil, she gives to her servant, Eliza Baker, the sum of £100, ‘with as much of my furniture as, in the opinion of my executor, will be sufficient to furnish a sitting room and bedroom.’ The codicil appoints no executor and contains no other reference to the will.

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On the following day, the 24 September, the testatrix died. On her death, a search was made for her testamentary papers by Sir Thomas Herbert Maddock, who was one of the executors appointed by the paper described as her will, and to whom, in pursuance of the testatrix’s direction, a letter announcing the event had been sent immediately upon her death.The codicil was found in a chest which had been, shortly before her death, removed from her bed-room into an adjoining room.This paper was enclosed in a sealed envelope, on which are written the words - ; Mrs Anne Foote’s Will.’ No other testamentary paper of any description was found. No doubt the rule of law is as stated by Lord Eldon in Smart v Prujean 6 Ves 565; 31 ER 1195 at 1198, that, ‘an instrument, properly attested in order to incorporate another instrument not a manifestation of what the paper is which meant to be incorporated .’ for this purpose it is necessary that it should so described as to leave no doubt in the mind of the judge, in the circumstances as they actually existed and are proved before him, that the paper referred to is the paper propounded. ...the authorities seem clearly to establish that where there is a reference to any written document, described as then existing, in such terms that it is capable of being ascertained, parole evidence is admissible to ascertain it, and the only question then is, whether the evidence is sufficient for the purpose. The result of the authorities ... appears to be, that when there is a reference in a duly-executed testamentary instrument to another testamentary instrument by such terms as to make it capable of identification, it is necessarily a subject for parole evidence, and that when the parole evidence sufficiently proves that, in the circumstances, there is no doubt as to the instrument, it is no objection to it that, by possibility, circumstances might have existed in which the instrument referred to could not have been identified... The facts on which we rely are, beyond all question, admissible in evidence, namely, that the paper in question was written by the testatrix, was found locked up in her possession at her death, in a sealed envelope, on which there was an endorsement describing it as her will; and that after diligent search no together paper was found answering the description.’

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In the Goods of Heathcote (1881) 6 PD 30 (The President) (For a document to be properly incorporated by reference it must be in existence at the date of the will)

CASE NO. 67

The testatrix had made a will which was invalid since being a married woman she had no capacity to make one. She was thereafter widowed, thereby acquiring the capacity to make a will. She executed a document which she described as ‘a codicil to the last will and testament.’ The codicil was written on the same paper as the invalid will and immediately after it. There was evidence that she had not made any other will. Probate was sought of the two documents, on the basis that although the will was invalid the codicil together with the surrounding circumstances sufficiently identified the invalid will and thereby incorporated it. It was held that the invalid will had been properly incorporated in the codicil, and probate was granted to both – the will and the codicil.

THE PRESIDENT: The only question raised for my determination is whether I am satisfied that the will of 1874 is sufficiently identified as the last will and testament which is referred to in the codicil.

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The case is governed by the passage in Allen v Maddock (1858) 11 Moo 427; 14 ER 757, and on the present occasion the Court of Probate is to a certain extent a court of construction; for it has to determine what is the meaning of the reference made by the testatrix in her codicil to her last will and testament, and whether any, and if any, what instrument found at her death is thereby referred to. This question is one of fact, and can only be explained by parol evidence, which must necessarily be received to prove whether there is or not in existence at the testatrix’s death any such instrument as is referred to by the codicil. For this purpose, it must be shown what papers there were at the date of the codicil which could answer the description contained in that document, and the court having by these means placed itself in the situation of the testatrix, and acquired as far as possible all the knowledge which she is possessed, must say, upon a consideration of those extrinsic circumstances whether the paper is identified or not. In the case of Stockil and others v Punshon and others (6 PD 9) it was of no importance which way the court decided. I therefore did not consider the question of what extraneous evidence would be sufficient to connect the one document with the other, but I acted on the impression that the bare fact of enumeration was not sufficient to incorporate the second paper. But in this case it is to be taken by admission that there is no other known instrument to which this reference made in the codicil could apply, and it is upon that assumption that I decide that this will so referred to in the codicil must be admitted to probate.

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In the Goods of Smart (1902) P 238 (Gorrell Barnes J) (For a document to be properly incorporated by reference it must be in existence at the date of the will)

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CASE NO. 68

The testatrix made a will disposing of her estate to a named person, and directed her trustees to give to such of her friends as the testatrix might designate in a book or memorandum to be found with her will, the articles specified for such friends in such book or memorandum. It was held that the book or memorandum was referred to in the will as a future document and therefore it was not incorporated and could not be admitted to probate.

GORRELL BARNES J: The question is, therefore, whether the book so far as it is referred to, if referred to at all, in that clause which I read from the will, is to be incorporated with will and codicil. I have already practically intimated my view that it ought not to be incorporated, and I might have contented myself with saying that I come to that conclusion in consequence, principally, of a decision of the President in the case of Dierham v Northern ((1895) page 66) ; but Mr Deane argued that that case was inconsistent with other authorities, and that other authorities were in conflict amongst themselves; so I desired to look through them to see if that contention could be properly supported. Before referring very briefly to the cases, it seems to me desirable to state how the principle upon which this matter ought to be decided appears to my mind. It seems to me that it has been established that if a testator, in a testamentary paper duly executed, refers to an existing unattested testamentary paper, the instrument so referred to becomes a part of his will; in other words., it is incorporated into it,; but it is clear that, in order that the informal document should be incorporated in the validly executed document, the latter must refer to the former as a written instrument then existing – that is, at the time of execution. A leading case upon this subject is Allen v Maddock ((1858) 11 Moo PC 427 and it is desirable also to refer to In the Goods of Mary Sunderland ((1866) LR 1 P and M 192. It will be seen from a statement the principle in the form I have just given, that the document which it is sought to incorporate must be existing at the time of the execution of the document into which it is to be incorporated, and there must be a reference in the properly executed document to the informal document as an existing one., and not as a future document. If the document does not exist at the time of the will, but comes into existence afterwards, and then, after that again, there is a codicil confirming the will, the question arises, as it has done in a number of these cases, whether the document is incorporated. It appears to me that, following out of the principle which I have already referred to, the will may be treated, by the confirmation given by the codicil, as executed again, and as speaking from the date of the codicil, and if the informal document is existing then, and is referred to in the will as existing, so as to identify it, there will be incorporation; but if the will, treated as being re-executed at the date of the codicil, still speaks in terms which show that it is referring to a future document, then it appears to me there is no incorporation. I might put a clear concrete case. Suppose that the will said, ‘I wish

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certain articles to be disposed of by my executors in accordance with a list which I shall hereafter write,’ and the testator then wrote a list such as was contemplated, and then, after that, a codicil was made confirming the will, one of the conditions at the date of the codicil which is necessary for incorporation would be fulfilled, namely, the execution of a document; but the other condition would not be fulfilled, because the will, even speaking from the date of its so-called re-execution by that confirmation by the codicil, would still in terms refer to something which even then was future... Therefore, to my mind, it is clear that if the terms of the reference in this case indicate a document of a future character there is no incorporation. The words are: ‘I direct my trustees to give to such of my friends as I may designate in a book or memorandum that will be found in this will.’ that reference, made at the end of the will was, I think, clearly made as a future document. a document next comes into existence, and a codicil is afterwards made; but if you treat the will according to the cases, as speaking at the date of the codicil, the reference is still in terms to a document which, even then, is future and therefore does not comply with one of the necessary conditions namely, that it must refer to a document as existing at the date when the will is re-executed. For these reasons, I think there ought to be no incorporation of the book, or that part of it, which it is sought to incorporate. I suppose that is sufficient to dispose of this application. The University College of North Wales v Taylor (1908) P 110 (Cozens-Hardy MR, Fletcher Moulton LJ and Farwell LJ)

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CASE NO. 69

(For a document to be effectively incorporated by reference it must be in existence at the date, on which the will is executed, referred to in the will as being in existence and clearly identified) In order to admit parol evidence for the purpose of identifying a document referred to in a will and intended to be incorporated, the description must refer definitely to an existing document. Parol evidence will not be admissible in the case of a will referring to future document.

COZENS-HARDY MR: In considering this case our first duty is to construe the will, for a will may be so phrased as, on the one hand, to exclude the possibility of the admissibility of any parol evidence, and, on the other hand, may be so phrased as to admit the possibility of the admissibility of parol evidence...There is a gift of 10 000 to the trustees for the time being of the University of Wales, and a trust ‘to invest and apply the income of such investments’...‘as are contained and specified in any memorandum amongst my papers written or signed by me relating thereto.’ Then there is a similar bequest of 10 000 to the University College of North Wales in identical language, not referring to the said memorandum or the same memorandum, but again specifying any memorandum amongst my papers written or signed by me relating thereto,’ and the residue of the estate is given, half to the University of Wales and half to the University of North Wales, upon the same trusts, and in the same

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manner, and under and subject to the same conditions as are declared concerning the two legacies. ...it seems to me that what was said by Lord Eldon in Smart v Prujean (6 Ves 560), and what was said by Lord Kingsdown in delivering judgement in Allen v Maddock (11 Moo PC 427) is conclusive on this point. Lord Eldon in Smart v Prujean says: ‘The rule of law is that an instrument properly attested, in order to incorporate another instrument not attested, must describe it so as to be a manifestation of what the paper is, which is meant to be incorporated in such a way that the court can be under no mistake.’ In the latter part of the same judgement he says there is another ground on which he declined to admit the papers in that case:‘Not whether the same envelope or superscription is evidence that the testator meant, these should be the papers referred to; but whether I must of necessity collect from the contents of the will that they should be considered the same. The true question is, if these papers were found in the bureau with the will, can I say from the contents of the will these two papers are the papers referred to? Suppose several other papers were found with them, could I say that this will would have enabled me to select these two as the only papers referred to? ‘Then in Allen v Maddock, which, no doubt, is the leading authority on this branch of the law., Lord Kingsdown, in giving advice to the Privy Council, says : A reference in a will may be in such terms as to exclude parol testimony, as where it is to papers not written, or where the description is so vague as to be incapable of being applied to any instrument in particular.’ Applying these principles laid down by such great authorities, it does seem to me that, on the construction of this will, parol evidence was not admissible.

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FLETCHER-MOULTON LJ: I am of the same opinion. As a pure question of construction I think that the words of this will do not purport to refer to an existing document. they seem to have been chosen to express the intention of the testator at some future time or times to draw up one or more memoranda as to the terms and conditions under which the legacies in his will, were to be enjoyed by the institution, and, that being so, parol evidence was not admissible at all. But for reasons that the Master of the Rolls has given we have listened to parol evidence; and in my opinion it supports what I consider to be the natural interpretation of the language used. FARWELL LJ: I agree. There is really no dispute about the law; it is a mere question of the construction of the will. It is well settled that in order to incorporate a document of this nature the will must necessarily refer to a particular specified paper then in existence. Now, when I construe the words of the will, I find the testator dealing with the separate legacies of 10 000-00 each and giving them to trustees on such terms and conditions, and subject to such rules and regulations, ‘as are contained and specified in any memorandum amongst my papers written or signed by me relating thereto.’ In order to indentify it one would have expected him to have said:‘the said memorandum hereinbefore referred to.’ Apart from that, reading the words fairly I find it impossible to doubt that the word ‘as are contained and specified in any memorandum amongst my papers written or signed by me relating thereto’ do not refer to any particular document, but refer to any number of documents which may or may not answer the description being written, or in the alternative signed, and which may or may not be in existence... ***

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4.9 ORAL

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WILL

Oral wills are governed by section 9 of the Law of Succession Act, which provides that: ‘9(1) No oral will shall be valid unless: (a)

It is made before two or more competent witnesses, and

(b)

The testator dies within a period of three months from the date of making the will:’

Cases numbers 70, 71 and 72 illustrate the application of the law on orals wills. Cases numbers 70 and 71 also state the position that where a deceased person gives instructions regarding the disposal of his assets and the instructions are reduced into writing by the persons recording them, such written instructions amount to an oral will, so long as the instructions are given in the presence of two or more persons who are competent to make a will in their own right. Re Rufus Ng’ethe Munyua (Dec’d), Public Trustee v Wambui [1977] KLR 137 (Harris J)

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CASE NO. 70

(Where the deceased person gives directions on how his property is to be distributed upon his death, and those instructions are given in the presence of several persons, one of who reduces them into writing, the writing containing the instructions is capable of passing as the oral will of the deceased) The deceased prior to his death, told a friend, in the presence of his wife, son and another person, how he wished his property to be distributed upon his death. He reduced those instructions into writing.When the Public Trustee sought direction that that document be treated as the written will of the deceased, the court held that the same was capable of passing as the oral will of the deceased.

HARRIS J:Section 46 (explanation 4) of the Act of 1865 declares that no person can make a will while he is in such a state of mind, whether arising from illness or other cause, that he does not know what he is doing. Section 50 sets out three rules for the execution of a will. First, the testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. Second, the signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will and third, the will shall be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses must sign the will in the presence of the testator, but shall not be necessary that more than one witness be present at the same time, and no form of attestation is necessary.

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Having considered the evidence, I answer the issues as follows. (1) The deceased was of sufficient testamentary capacity at the time of making the will and the first issue is answered in the affirmative. (2) The will was signed by Rufus in the presence of the deceased and by his direction but as his was the last of the signatures to be appended none of these other signatories can be said to have signed after he did and, accordingly, his signature was not duly witnessed as required by the third rule in section 50 of the Succession Act 1865... Issue (1), as to whether the giving by the deceased to Samuel on his deathbed on 5 March 1974 of instructions for the disposition of his property constituted under Kikuyu customary law a valid oral will, raises a question of some interest. In his Restatement of African Law: Kenya III: the Law of Succession, Cotran J, dealing with the customary law among members of the Kikuyu tribe, says (at pages 15 and 16): ‘A person may make a will in his old age or on his deathbed. He calls a meeting of all his close relatives from his mbari, other muhiriga relatives and close friends and declares orally how his property is to be distributed item by item, and also declares who shall be his muramati. No other formalities are required, but the will is invalid unless the above witnesses (the number is not specified) are present... A person may not make a will if he/she cannot understand the nature of his/her act, e.g. if insane, a senile... Bequests to strangers: such bequests are completely invalid...Bequests may by will give some of his property to a member of his muhiriga, provided he does not thereby deprive an heir of his whole inheritance... A polygamist may not by will give a share to a son from one house out of a share already allocated during his lifetime to a son from another house, e.g. if a polygamist with two wives gives five acres on marriage to a son of his first wife, he cannot by will direct that a part of these five acres shall go to a son of his second wife.’

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In the glossary of vernacular terms in the same volume the following meanings are given: mbari and muhiriga both mean clan; and muramati means the family head or the administrator of the deceased’s estate. Counsel for the Public Trustee and for Florence both submitted that if the instrument is not valid as a will under statute law the oral instructions for its preparation given by the deceased in hospital constituted a valid oral will, contending that the requirements of Kikuyu customary law had been sufficiently complied with. counsel for the caveators argued that although the court should take into account the special circumstances of the deceased being in hospital on his deathbed and being unable therefore to call a meeting of his close relatives, clan elders and close friends nevertheless, the instructions given by the deceased did not constitute a valid oral will . There is no doubt that at the material time the deceased was on his deathbed and I am satisfied that he made a reasonable and genuine attempt to secure the attendance of his close adult relatives, several of whom appear to have been actually present when his testamentary wishes were being expressed to Samuel. No doubt the caveators were not there at that time although they had visited him a day or two previously, but I cannot hold that in such circumstances the inability or refusal of some of his close relatives to be present should have the effect of rendering him unable to make a will. Admittedly, the deceased does not appear to have declared who shall be his muramati but, just as under the general principles of equity a trust will not fail solely for want of a trustee, so I do not consider that a will should fail solely for want of a muramati particularly where, as here¸there is an entirely suitable person in the shape of the

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Public Trustee able and willing to undertake this role, and one of whose functions is by law to do so in cases of necessity. Looking at the terms of the will it would appear that the entire property of the deceased has been bequeathed only to persons entitled to inherit, that is his two widows and his children by one of them, accordingly that no attempt was made to bequeath any part of the property to strangers . No question was raised as to this.

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For these reasons I answer issue (7) in the affirmative and I hold that the oral instructions given by the deceased to Samuel on 5 March 1974 and recorded by him constituted a valid oral will. The order to be made on the originating summons will, accordingly, be that the relief sought is refused and instead there will be a declaration that the deceased died estate, having on 5 March 1974 made a valid oral will under Kikuyu customary law, the terms of which have been recorded in the Kikuyu language in the document annexed to the summons, and that the Public Trustee is hereby authorised to apply for grant of letters of administration to the estate of the deceased with that document, and a proper English translation certified with the court as correct, annexed.

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Wambui and another v Gikonyo and others [1988] KLR 445 (Gachuhi, Apaloo JJA, and Masime AJA) (Where a person orally gives instructions on the disposal of his property upon death in the presence of two or more persons, and the instructions are reduced into writing by those present, the document is capable of passing as his oral will. Coercion is unlawful and a will procured by coercion is a nullity, but persuasion is lawful, and a will procured on the basis of it is admissible to probate)

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CASE NO. 71

The deceased who was illiterate, gave oral instructions on the disposal of his property upon death. The instructions were reduced into writing by one of the people present. He gave his property to, among others, a married daughter. The writing of the witness was thumb printed by the deceased in the presence of two persons who did not sign it. The deceased told the daughter about the gift, but she could not believe it unless he made another document to demonstrate his good faith. The deceased caused another document to be prepared which he thumb printed after the witnesses had signed. When he died, probate was sought of both documents. The sons of the deceased claimed that the documents were invalid as the coercion was exercised on the deceased by the daughter so as to make the will in her favour. The High Court found that the two documents were not wills. On appeal, the Court of Appeal found that both documents were wills.The second document was an oral will as it was a record of the utterances of the deceased in the presence of two witnesses and he died within three months of the recording. The second document was a written will as it was properly executed by the deceased and attested by two competent witnesses. The court found that there was no coercion, and the evidence on record suggested mere persuasion. The deceased was found to have apparently made the second document to confirm the earlier document as he distributed his estate in the second document as per the terms of the first document.

GACHUHI JA: Dealing with coercion first I cannot find any evidence on coercion. Both PW3 and PW4 state that they were called by the deceased to his house and he directed them to write the first document marked ‘B’ on 12 May 1978. PW4 said that when he wrote document ‘B’ on 12 May 1978 the appellants (plaintiffs) were not present. However, they were present when document ‘A’ was written on 12 May 1978. Document ‘A’ was written when first plaintiff insisted that a second document should

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be written. It is conceded by Mr Kamonde, the advocate for the second defendant that the latter document of 15 May 1978 is an explanation of what the father had done with an earlier document of 12 May 1978. If when writing the first document the plaintiffs were not there and when writing the second document which was an explanation of the first document were present, I do not construe this as coercion. Coercion could be implied if when writing the first document plaintiffs were present and that they dictated what was written and then the deceased was made to sign. It is only under those circumstances coercion could have been real. Yet according to the witnesses, the deceased called the writer and on his free will directed the document to be written and be taken to the District Commissioner’s office for safe keeping though this was not done. There was no coercion in writing both documents. The judge doubted as to why the first plaintiff who was married should be preferred to the other daughters who were also married and whether the document was written with the consent of the chief.There is no requirement under the Wills Act (now repealed), the Indian Succession Act of 1865 (also repealed) or the Succession Act Chapter 160 that in writing wills consent of the chief has to be obtained. Even under customary law and practice no requirement that a chief has to be consulted even in making an oral will. This is misdirection.

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On the question of preference, it is a well known fact that parents give to their children according to their intimate relationship. Some children carry more burdens of their parents than others. If a parent wishes to reward his or her child for such service through love and affection other children or members of the family have no right to question the deceased’s right. Such gifts can be given during the deceased’s lifetime or by a will. There is no evidence here that the deceased could not have rewarded the first plaintiff as he wished. In fact he did so in writing the first document in the absence of the plaintiffs. The deceased directed what his intentions were regarding the disposal of his land. Coming back to the validity of the documents the respondents have challenged it that it is not in the form of a will. One thing is clear, that is, these documents were written by lay people in the village. If they have the essential facts according to law they should be accepted as being valid wills. Section 50 of the Indian Succession Act 1865 (now repealed) is copied word for word in the Law of Succession Act Chapter 160. I now reproduce the section. Section 11 No written will shall be valid unless: (a)

The testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;

(b)

The signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;

(c)

The will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator, a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

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Respondents claim that the deceased could not make a will without the knowledge of the second respondent and further that the deceased was very ill. Even in cases where a person is very sick or mentally sick at the time of executing a will, it cannot be a ground for nullifying the will because there are lucid periods where a person becomes normal and can give instructions for writing the will. It could be executed during such periods. Vijay Chandrankant Shah and others v The Public Trustee CA number 63 of 1984 (unreported). Witnesses in this case have stated that at the time of writing these documents the deceased was normal. If he was not normal they could have stated so or described the condition of the deceased. There is nothing that can be found in the evidence to the contrary. In my view the deceased was normal but may have been too weak when he gave instructions to write these documents. In fact he gave the reason for wishing to have the document written as he felt that he was not going to live long. Document ‘B’ dated 12 May 1978 though shared out land and signed by the deceased, does not comply with the requirements of a will as such. The document is not witnessed as required. But it expresses the deceased’s wishes. Couldn’t it be regarded as an oral will? There is nothing to prevent a person making an oral will disposing of his property. In Cotran’s book (Kenya 2) at page 15 it is stated: ‘A person may make a will in his old age or on his deathbed. He calls a meeting of all his close relatives from his mbari, other muhiriga relatives and close friends and declares orally how his property is to be distributed item by item, and also declares who shall be his muramati . No other formalities are required, but the will is invalid unless the above witnesses (the number is not specified) are present.’

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According to the writer, it does not appear whether it matters if the children and wives were not present. Under sections 8 and 9 of the Law of Succession Act (Chapter160) provide: ‘8

A will may be made either orally or in writing:

9(1)

no oral will shall be valid unless: (a)

It is made before two or more competent witnesses and

(b)

The testator dies within a period of three months from the date of making the will. Provided...

(2)

No oral will shall be valid if, and so far as, it is contrary to any Written will which the testator has made, whether before or After the date of the oral will, and which has not been revoked as provided by sections 18 and 19.’

Sections 18 and 19 deal with revocation of wills. In Re Rufus Munyua (Dec’d) Public Trustee v Wambui [1977] KLR 137. Where the deceased gave instructions of the disposal of his properties to his wives and children, and that those instructions were written on a piece of paper by the person recording it, the deceased having died few days later, Harris J held the writing disposing the property to be an oral will. In the present appeal, the deceased gave instructions which were written and signed by him in presence of two witnesses. He died few days later, i.e. 30 May 1978. In this case, on the authority of Re Rufus Munyua (Dec’d) Public Trustee v Wambui and

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sections 8 and 9 of the Law of Succession Act I hold the document dated 12 May 1978 capable of being construed as an oral will. Regarding the second document it is witnessed by two witnesses who give evidence of its execution. The fact that it is not in the form presentable to lawyers, it has all the ingredients required by law. The fact that it does not follow that form; it should not be rendered invalid. The fact the name of the beneficiary is stated as a form of receipt though she did not sign would not invalidate the document. The fact that the deceased thumb printed last the witnesses having signed first would also not invalidate the document. The testator does not necessarily have to sign It., it could have been signed on his behalf and still be a valid will to dispose part of the deceased’s land which is defined as situated on the upper ground as bordered by a road in a V-shape of whatever acreage it may be to the first appellant, Beth Wambui. Taking the documents together, one as a valid will and the other an oral will and taking the valid will document as a codicil that explains the earlier oral will, I have come to conclusion that the deceased disposed his land in terms of these two documents. APALOO JA: On 15 May 1978, he summoned his nephew Mbugua Njoroge to his home and requested him to write down his wishes. It seems clear he intended this to be a disposition of his land on his demise. Njoroge wrote down his uncle’s wishes. Just over a fortnight afterwards that is on the 30 May 1978 he passed away. There is little doubt that what the deceased caused his nephew to put down in writing were his testamentary wishes. Accordingly, if it was properly executed and attested according to law, it would be a valid will which can properly be admitted to probate.

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The deceased was himself illiterate. So when his wishes were recorded, they were read back to him. When he signified his assent to what was read to him in Kikuyu language, he affixed his thumbprint to it. It was then attested by James Mungai and the writer Mbugua Njoroge, both of whom were present. No executor was appointed under the will. One of the beneficiaries by name Beth Wambui sought to propound the will and have it admitted to probate. She was opposed by her stepmother and some of her brothers. They deny the validity of the will. In so far as the issues fought in these proceedings involve any proposition in law, it is that the party who propounds a will must show that it is intended to be the last wishes of a competent testator and that he had a sound disposing mind. And further, that the will was executed and attested in the manner required by law. Thereafter, the burden shifts on those asserting the validity of the will to prove it. On the facts, it is clear that the deceased was in sound mind. Indeed, nobody suggests that he was other than compos mentis. It is also not in dispute that the land he sought to dispose of was his own self acquired property. Both Mungai and Njoroge testified that what, was recorded was a true expression of the deceased’s wishes and that both of them witnessed it by signing… it in his presence.That evidence was not contested. So prima facie, the will was executed and attested in accordance with section 50 of the Indian Succession Act 1865, as applied to this country by the African Wills Act, 1961. That being so, the onus shifts on the respondents to show that the will was invalid. The 1st respondent also gave evidence. She denied that the deceased left a will and

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although some document purporting to be the deceased’s will was read at the funeral, she did not agree with it. All the other respondents denied that the deceased made a will and their reason seems to be because they had no knowledge of their father making a will in his lifetime. They conceded though that some document was read at his funeral but they denied the deceased in truth made it. It seems plain that the respondents led no evidence to show the invalidity of the will. Their objection was founded principally on their disappointment either because of the meagre nature of the bequest they received or because they received no benefit. They regarded themselves as objects of their father’s bounty. In those circumstances, the appellant has shown the document of 15 May 1978, to be a valid will of her late father. The learned judge however thought otherwise. Although he found no fault with the evidence of the execution and attestation of the will, he said it was invalid because it was made as a result of coercion of the deceased by the appellant or by her importuning him.

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With respect to the learned judge, neither ground for invalidating the will is supportable on the evidence. The only evidence is that the deceased made what he believed to be an earlier will on 12 May 1978. He made a bequest of 2 acres of land to the first appellant . When her father told her of the gift, she said she could not believe unless another document was made. To show his good faith, the deceased caused will of 15 May 1978 to be made. In it, she received the same bequest that she received in the earlier will. It was only in cross-examination that Mungai, one of the attesting witnesses to the will of 15 May 1978, said the first appellant persuaded her father to make this later will. Persuasion is not the same thing as coercion. A man is persuaded to act in ascertain way if he is convinced to do so but he is coerced if he is constrained to do the same without the exercise of his own volition. At all events, it would be less than accurate to say the appellant Beth persuaded her father to make a will in her favour.The truth is that on 12 May 1978, the deceased made an earlier will in which he bequeathed her 2 acres of land.When her father told her of his bequest, she expressed disbelief. Her father therefore agreed to execute a fresh will at her request to convince her of his bona fides. In this later will, she received the like bequest that she got under the first will. In those circumstances, to say that the first appellant persuaded her father to make a will in her favour, will be plainly contrary to the facts. Even if she did this, the testament will not be invalid on that account. In my opinion, the will of 15 May 1978, has been shown, to be the valid testament of the late Gikonyo Chege and is entitled to be admitted to probate. As I said, the deceased also named his testamentary wishes known earlier, that is, on 12 May. On that day, he invited James Mungai and the late Mbugua Kamonje to his home. He then told them that he did not think he would live much longer and would make a document which they should keep with the DC Mbugua was to put into writing his wishes. He then distributed his land to named individuals. Mbugua recorded his wishes and had it typed the next day. He then returned to the deceased with it. The latter proceeded to thumbprint it. It is common ground that then execution of that document did not comply with the requirement of section 50 of the Indian Succession Act and cannot be pronounced as a valid statutory will. But it was put forward as a valid oral will made in accordance with Kikuyu customary law. The question then is; what are the customary law’s

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requirements of a valid oral will? Cotran shed some light on this in his Restatement of African Law Kenya 2 Law of Succession page 15-16. He says: ‘A person may make a will in his old age or on his deathbed. He calls a meeting of all his close relatives...and close friends and declares orally how his property is to be distributed item by item.’

In Re Rufus Ngethe Munyua (Dec’d) Public Trustee v Wambui [1977] KLR 137 Harris J held that: ‘Under Kikuyu customary law, a valid oral will may be made by a testator on his deathbed in the presence of his close relatives by declaring how his property is to be distributed. The inability of close relatives to attend will not invalidate the will.’

In Mbugua v Mbugua civil appeal number 23 of 1982 dated 20 May 1983, Chesoni AJA said the number of close relatives and friends who should be present at the making of the will is unspecified. It may be one or two. The only other apparent requirement, is that the testator must be of sound mind. According to Chesoni JA he must not at the time of giving his instructions be ‘ drunk or insane or otherwise incapable of making a valid will.’

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How do the facts of this case fit the customary requirement? The late Chege was not on his deathbed when he made his oral testamentary wishes. But he was close enough to it. He died 18 days afterwards and clearly had a premonition of his impending death. That is why he told Mungai and Kamonje that he felt… he would not be living much longer. He then told them how they should distribute his land apparently, the only real property he had. It is not clear whether Mungai and Kamonje were his blood relatives or just friends. If they are not related to him on grounds of consanguinity, they must be persons whom he reposed confidence. Chesoni JA thought one or two of such persons would do. The deceased was of sound disposing mind and the land he sought to distribute, was his own property. The fact that his wishes were reduced into writing does not make them any less binding. In a sense, it is better as the matter will be put beyond bad faith and treacherous memory. Indeed the facts of this case are on practically all fours with Re Rufus Ngethe case cited supra . And lastly, the beneficiaries named in the12 May will, are wives and some of his children – persons who would be the natural, objects of his bounty. I think the testator’s wishes taken down by Mungai on 12 May, and thumb printed by him the next day, was a valid oral will made in accordance with that will and the later statutory one made on 15 May 1978 . In as much as the learned trial judge held otherwise, I think, with respect, he slipped.

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In the Matter of the Estate of Amos Kipsrono Sirma – Deceased Nakuru High Court succession cause number 231 of 1994 (Rimita J)

CASE NO. 72

(An oral will is valid if made in the presence of at least two witnesses and the testator dies within three months of its making) The deceased expressed his wishes regarding the distribution of his land in the presence of two witnesses. He subsequently died within three months of the expression of the said wishes. It was held that he had died testate, and that probate ought to be granted to his oral wishes.

RIMITA J: From the material placed before me, it would appear that the deceased died, partly testate and intestate. Section 9(1) of the Succession Act Chapter 160 Laws of Kenya reads as follows: ‘9(1) No oral will shall be valid unless: (a)

It is made before two or more competent witnesses; and

(b)

The estate dies within period of three months from the date of making the will: Provided...

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It would appear that the oral will that the objector can rely on is what was made in the presence of PW5 and PW6. His wish was made in September 1986 and the deceased died in November 1986. This was within a period of 3 months. On my part I would believe the two witnesses because of the deceased’s consistency since he started ailing. The fact that the deceased wanted to state or stated how his farms would be distributed upon his death is not denied by the petitioner. There was only a disagreement as DW2 was left out. DW2 had been given land by the deceased’s father. The deceased saw to it that in a succession cause that followed it was DW2 and not himself who took the land. The deceased considered LR number LEMBUS/KILOMBE/116 as part of the family land. Evidence has it that it was the deceased who had acquired the same in his father’s name. It was therefore the deceased strong feeling that DW2 Timothy had had enough and should not get more from the family land. Actually this was the borne of contention and it would appear that it bothered the deceased up to his death. But he refused to budge. I think the old man was fair under the circumstances of the case.The petitioner failed to prove that the land given to the sons of the first house was inferior to the land allocated to the second house. I have considered all the relevant material placed before me. I believe the objector’s case.The deceased distributed his parcels of land in his oral will made before competent witnesses in September 1986.

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I do not have to deal with the Tugen customary law which the parties attempted to prove. The witnesses did not agree on the customary law. But the objector agrees that the property which is not subject to the will be divided between the houses in equal shares. Since this is acceptable to the petitioner and that is the petitioner’s case, I will give orders to that effect. Consequently, I find that the objection succeeds. It is upheld with costs and interest at court rates. The petition fails and is dismissed with costs and interest at court rates. However, to avoid further ill feelings in the family, I order that the taxed costs be paid from the part of the estate which was not subject of the deceased’s oral will before the same is distributed as earlier ordered between the two houses. The objector NANCY TERIKI SIRMA is appointed the administratrix of the deceased estate. Letters of administration of the deceased estate will be issued to her. She should apply for confirmation of the same as soon as possible. ***

4.10 PRIVILEGED

WILL

The Law of Succession Act provides for an oral or nuncupative privileged will. It makes no provision for the written privileged will. The relevant provision is the proviso to section 9(1) of the Law of Succession Act, which states: ‘Provided that an oral will made by a member of the armed forces or merchant marine during a period of active service is valid notwithstanding the fact that he died more than three months after the date of the making of the will.’

The privileged written will is provided for under section 219 of the Armed Forces Act, which provides:

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‘A will made by a member of the armed forces who has at law the capacity to make a will shall be validly executed if it is in writing and is signed by him in the presence of an officer, who subscribes his name as witness in the member’s presence, or if it is executed with the formalities prescribed by any other written law for the execution of a will.’

There are no Kenyan decisions on privileged wills, oral or written, and the English decisions in cases numbers 73 and 74 provide guidelines on how Kenyan courts are likely to deal with a similar matter.

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In re Stable, Deceased: Dalrymple v Campbell [1919] All ER Rep 299 page 7 (Horridge J)

CASE NO. 73

(A soldier under instructions to proceed to war is in actual military service, and probate may be granted to words disposing of his property upon death, even if the soldier did not know at the time that he was making a will or he had the power to make a will by word of mouth) The deceased, a military officer, had said to a woman he was engaged to, shortly after receiving instructions to proceed to the war front: ‘If I stop a bullet everything of mine will be yours.’ The court found that the deceased was a soldier in active service, and probate was granted to the words uttered to the woman.

HORRIDGE J: It has now been proved before me that the deceased received his orders to leave for France on 30 June 1917, and it was not disputed he would be from the time of receiving such notice, a soldier in actual military service for the purpose of section 11 of the Wills Act, 1837. The plaintiff alleges that on two occasions the deceased made statements which she contends amount, in effect, to a soldier’s will... This conversation of 6 July was corroborated by the evidence of Miss T, and was referred to in a conversation between the plaintiff and the deceased after they had left Miss T’s house.

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In my view it is not necessary, in order to establish the validity of a soldiers’ will, to prove that he knew he was making a will, or had the power to make a will by word of mouth. The statement made by the deceased man must I think, be meant for a will only in the sense that he intended deliberately to give expression to his wishes as to what should be done with his property in the event of his death. The conversation which took place after leaving Miss T’s shows that the expressions he had previously made in Miss T’s presence were not made at random, but deliberately. I regard the letter of 9 August as not being in itself a will, but as forming strong corroborative evidence of his having previously expressed his wishes on 6 July . On behalf of the defendants it was contended that in as much as he knew from the conversations he had with his solicitor that he would not be entitled to receive his property until he was 21, he never intended to dispose of it. This argument does not appeal to me, as he had a vested interest in the property, which he could dispose of if he wished. I think the expression, ‘If I stop a bullet everything of mine will be yours,’ used by him on July 6, constitutes a good will, and I pronounce for probate of the will in these words, as I accept the plaintiff ’s and Mrs T’s evidence that this was the expression he used.

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In re Wingham, deceased: Andrews v Wingham [1949] 2 All ER 908 [1949] page 187 (Bucknill LJ, Cohen LJ and Denning LJ) (A soldier is on actual military service when he is on military service which is directly concerned with a war, actual or imminent, or with military operations after the war) CASE NO. 74

The deceased, upon conscription into the armed forces, was sent to Canada for training in operational duties as a pilot. He made a will leaving his property to named persons, signed the document, but the same was not attested. He died after an aircraft accident. The document was admitted to probate even though it did not comply with the rules governing validity of testaments. The will was deemed to be privileged as it was made by a soldier in actual military service.

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BUCKNILL LJ: The question, therefore, seems to me to be whether Roy Wingham at the time when he made this will was ‘on active military service.’ What is the test? I do not think the test is whether the airman was in danger from enemy action at the time when the Will was made. The test applied by PilcherJ excludes soldiers who are under orders to hold themselves in readiness to proceed upon a campaign. Such men were held by Sir Francis Jeune P in Gattward v Knee (1902) page 22 to be on actual military service. In that case there was no danger to the testator at the time when he made the soldier’s will... If the presence of danger arising from enemy activity is not essential in order that a man may be properly described as being on active military service, what is the test of such service? In my opinion the tests are: (a) was the testator ‘on military service’? (b) Was such service, ‘active’? In my opinion the objective ‘active’ in this connection confines military service to such service as is directly concerned with operations in a war which is or has been in progress or is imminent. If I apply these tests, then, in my opinion, the deceased was so engaged. He had abandoned his civilian status for the status of a man enrolled in the Royal Air Force at a time when this country was at war, and had he done so for the purpose of taking part in the war. He had in pursuance of this purpose left his home and the ordinary facilities for the making of a will which a man has in civilian life, and had been ordered overseas for the purposes of becoming more skilled in his work as a belligerent airman. Whilst overseas he was at any time liable to be ordered to proceed to some area in order to take part in active warfare. Under these circumstances, he was in my opinion at the time when he made this will on actual military service, and therefore the document should be admitted to probate as a valid will. DENNING LJ: The plain meaning of the statutes is that any soldier, sailor or airman is entitled to the privilege, if he is actually serving with the Armed Forces in connection with military operations which are or have been taking place or are believed to be imminent. It does not, of course, include officers on half-pay or men on the reserve, or the territorials, when not called up for service. They are not actually serving. Nor

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does it include members of the forces serving in this country, or on routine garrison duty overseas, in time of peace, when military operations are a foot. It does however, include all our men surviving - or called up for service – in the wars: and women too, for that matter. It includes not only those actively engaged with the enemy but all who are training to fight him. It also includes those members of the forces who under the stress of war, both work at their jobs and man the defences, such as the Home Guard. It includes not only the fighting men but also those who serve in the forces, doctors, nurses, chaplains, WRNS, ATS, and so forth. It includes them all whether they are in the field or in the barracks, in billets or sleeping at home. It includes them although they may be captured by the enemy or interned by neutrals. It includes them not only in time of war but also when war is imminent. After hostilities are needed, it may still include them as for instance, when they garrison the countries which we occupy, or when they are engaged in military operations overseas. In all these cases they are plainly ‘in actual military service.’ Doubtful cases arise in peace time when a soldier is in, or about to be sent to, a disturbed area or an isolated post, where he may be involved in military operations. As to these cases, all I say is that, in case of doubt, the serving soldier should be given the benefit of the privilege... ***

4.11 DISREGARDING

A WILL

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Case number 75 is a curious decision. The court in that matter found that a deceased person had left a valid written will, which in the opinion of the court was unfair to some of the heirs. On the basis of this the court disregarded the will, and proceeded to deal with the estate as if the testator had died intestate. There is no provision in the Law of Succession Act which would permit the court to proceed in that manner. Once the court found that there was a valid will, it ought to have proceeded to dispose of the estate in terms of the provisions of the will.

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In the Matter of Estate of Benson Ndirangu Mathenge (Deceased) Nakuru High Court succession cause number 231 of 1998 (Ondeyo J) (Where a will is unfair it ought to be disregarded and the estate should thereafter be distributed in accordance with the intestacy provisions.30Where the deceased was a polygamist, his estate should be distributed according to the provisions set out in section 40 of the Law of Succession Act. Where an asset had been sold to a third party by the deceased before his demise, but transfer of the asset was not effected before death, the interest of that third party ought to be taken into account during distribution)

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CASE NO. 75

The objection proceedings to the grant of letters of administration were taken out by the second widow of the deceased, claiming that the deceased had died testate since he had left a valid will. She also cited several procedural defects in the process of applying for grant. Evidence was taken on, among other things, the making of the alleged will.The court did not make a conclusive finding at all on the validity of the alleged will, although it held that the said will was unfair to the first house of the deceased and ought to be disregarded on the grounds of the unfairness. It was held that the deceased was a polygamist and his estate fell for distribution in terms of section 40 of the Law of Succession Act. In making orders on distribution of the estate the court took into account the fact that the deceased had prior to death sold a portion of the land to a third party, and directed that the said portion be isolated and transferred to the third party.

ONDEYO J: PW3,Waithaka Mwangi advocate told the court that the deceased who was his client in other matters went into his office on 5 July 1996 accompanied by Joseph Muriithi Muya (PW2) and another person by the name Samson Wakahia Macharia. 30

With respect the court was not right.The court should have made in the first place a proper and clear finding as to whether the will in question was valid or not. Where a court concludes that a will is valid, there is no basis at all in law for the court thereafter to disregard it and proceed as if there was no will and therefore treat the deceased as an intestate. Indeed there is no provision at all in law to the effect that the court should disregard a will that in its opinion is unfair to any of the beneficiaries. A party who is unhappy with the provisions of a particular will has a remedy in section 26 of the Law of Succession Act, where he can move the court for reasonable provision out of the estate of the deceased. In the context of the instant case, it would appear the second house was, in the will, given a bigger share in the estate on the basis that there were more children in that house and nearly all of them were minors. The children in the other house being all adults were clearly already settled or established in life. The court apparently disregarded the principle of freedom of testation where the maker of a will has the liberty to dispose of his free property as he wished. This is a case where the deceased died testate and his estate should have been dealt with in accordance with the terms of his will.

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He told PW3 that he had a piece of land measuring 42 acres and he explained how he wanted the land distributed. The deceased told him that fifteen acres should go to his first wife to be excised from the portion bordering the land of Samson Wakahiu. Another fifteen acres was to be given to the second wife to be excised immediately after that of the first wife. Two acres were to be given to a purchaser, one Ndiru Gaturu. The two acres should be located after the land of the second wife (PW1).The remaining ten acres were to go to the deceased and if at the time of death, he will not have sold them, they should be inherited by the second wife. The money in the bank as well as the shares were to be taken over by the second wife because she still had small children. PW3 then prepared a will which was duly executed and witnessed. The reason why the second wife was given more under the will (exhibit 2) is because she had many small children. The will relates to all piece of land known as Nyandarua/ Ol’Aragwai/606. PW2 who was present corroborated the evidence of PW3. The objector (PW1) urged the court to distribute the land in accordance with the will of the deceased. If distribution has to be made in terms of that will, then it means that the first house will get 15 acres while the second house will get 25 acres.

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The petitioner told the court that he registered a caution against the title of the land when he realised that the deceased had started selling it.The deceased filed a case against him which the court referred to the elders who ruled that each house should get 15.1 acres, and that out of the ten acres which the deceased was to retain, the first house would get 3 acres while the second house would get seven acres. It was his testimony that the first house has three sons and one daughter while the second house has five sons and one daughter. According to him, the two houses should get 20 acres each and two acres for the purchaser. He urged the court to disregard the will, saying it was unfair to the first house of the deceased. There does not appear to be a dispute over the two acres bought by one Ndiru Gatumu. It is reflected in the petition, that, he bought two acres. PW1 (the objector) in her testimony recognised that fact. I therefore find that the said Ndiru Gatumu is entitled to two acres of land. That leaves forty acres which are in dispute as to distribution. The petitioner, DW1 denied that he had knowledge of the will and said that his mother who is the first widow of the deceased is alive. As to why he brought the petition and not his mother he explained that she suffers from loss of memory. He is opposed to the will because he is of the view that it is unfair to members of the first house of the deceased person. He filed an answer to the objector’s cross-petition for grant. In that answer which he filed on 29 September 1999, he denied that the deceased left any valid will for that matter. He also denied that the objector is entitled to any portion of the estate of the deceased. In his testimony during the hearing of this case, he conceded that the objector is the second widow of the deceased person. He infact referred to her as his stepmother. Can he then be taken seriously when he says in the answer to the crosspetition for grant, that she is not entitled to a portion of the estate of the deceased? He cannot be taken seriously on that. In any case, he included her name in the list of the people who survived the deceased person, when he petitioned for grant of letters intestate, an indication that she is one of the people entitled to the estate.

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PW3 said that the deceased did not know how to read or write.This was confirmed by the petitioner. According to PW3, the deceased spoke to him in Kikuyu language, and that he drew the will in English language and explained the contents to the deceased person before he executed the same. That is not reflected on the will that was produced in this case and taking into account the petitioner’s complaint that the said will is unfair to the members of the first house who were given fifteen acres and taking into account the fact that the said will gives 25 acres to the second widow/ objector together with an undisclosed amount of cash at Kenya Commercial Bank (Naivasha Branch), as well as shares at the same bank., there is an element of unfairness in the will and I shall disregard the said will and distribute the estate of the deceased in accordance with the provisions of Part V of the Law of Succession Act, Chapter 160, Laws of Kenya. This is in the absence of any evidence from the parties that the Attorney General has under section 32 of the Act, excluded land in Nyandarua district from the operations of Part V of the Act. Section 40(1) of the Act deals with cases where the intestate deceased was polygamous how the net intestate estate should be dealt with by the court. It provides that:

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‘40(1) where an interstate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate, shall in the first instance be divided among the houses according to the number of children in each, but also adding any wife surviving him as an additional unit to the number of children.’

The petition lists two widows and ten children without indicating which children belong to the first and second houses of the deceased person. DW1 said that there are three sons and one daughter in the first house. Since it was his evidence that the first widow is still alive, the first house therefore has four children and one widow making it five units for purposes of distribution under section 40(1) of the Act. There are five sons and one daughter in the second house, making it a total of six children and together with the second widow (objector), that house is divided into seven units. If the two houses of the deceased are combined and looked at in terms of units, they add to twelve units. The distribution of the land will be looked at in terms of units, with each child of the deceased representing one unit and each widow also representing one unit. As I have earlier ruled, a portion measuring two (2) acres was purchased by one Ndiru Gatumu and he is entitled to those two acres. The remaining portion, measuring 40 (forty) acres or thereabouts shall be divided into twelve (12) equal units. The first two units represent the two widows of the deceased person. Each of the remaining ten units represents each of the ten children of the deceased person from the two houses. Out of those twelve equal portions, five will go to the first widow Elizabeth Wangari for herself and members of her house. The remaining seven units will go to the second widow (objector) for herself and members of the second house of the deceased.

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The cash at Kenya Commercial Bank Naivasha shall go to the two widows absolutely in equal shares. The bank shares will be shared equally by the two widows absolutely.31 A grant shall therefore issue in the joint names of the objector representing the second hose of the deceased and the petitioner, representing the first house of the deceased

31

It is not at all clear why the money and the equity in the bank were not subjected to section 40 of the Act. More importantly the widows were made to share the same equally. The second house had minor children, while the children of the senior house were adults, obviously a bigger share should have gone to the second house which had more needs..

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CHAPTER 5 REVOCATION, ALTERATION

AND

REVIVAL

OF WILLS

5.1 INTRODUCTION A valid written will is liable for revocation by the testator at any time during his lifetime, so long as he is of a sound and disposing mind. It may be revoked by any of the methods stated in sections 18 and 19 of the Law of Succession Act.

5.2 EXPRESS REVOCATION Section 8(1) of the Law of Succession Act provides for the express revocation of a written will. It states ‘no will or codicil, or any part thereof, shall be revoked otherwise than by another will or codicil declaring an intention to revoke it...’ Case number 76 is an English decision showing that the written will must expressly state the intention to revoke, and that the description of a will as the last will or codicil of the deceased would not be sufficient. In re Hawkesley’s Settlement; Black v Tidy [1934] Ch 384 All ER Rep 94 (Luxmoore J)

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CASE N0. 76

(The description of a will as ‘the last will and testament’ of the testator is not sufficient for a revocation clause) The will of the testatrix did not carry an express revocation clause but was described as ‘the last will’ made by the testatrix. It was held that the description of a will as the ‘last will’ was not sufficient for an express revocation clause.

LUXMOORE J: Mr Upjohn, on behalf of the first defendant, and Mr Norman Daynes on behalf of the University of Oxford, both argue that – apart from the inconsistent gifts contained in the 1927 will – there is in fact an expression of intention to revoke which as a matter of construction is to be found in the description of the document as the testatrix’s last will and testament, and the reference contained in it to a document called a ‘cancelled will.’ it is admitted that the testatrix only made one will before she made the 1927 will – that is the 1922 will – and that she wrote on a copy of that will the word ‘cancelled,’ and the document referred to in the 1927 will as the ‘cancelled will’ is the 1922 will. I do not think these words by themselves are sufficient to effect a complete revocation of the 1922 will and codicil; and if revocation of these two documents is to be found, it must be by reason of the fact that the testatrix has disposed of the whole of her own property and the property over which she had a

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testamentary power of disposition in a manner wholly inconsistent with the provisions of the two earlier documents. Of course., in consideration of the 1927 will from this point of view of the fact that it is described as ‘Last will and testament,’ and that there is reference to the 1922 will as a ‘cancelled will’ must be taken into consideration. If the 1927 will is read alone, it is fairly plain that it would operate as a complete disposition of the whole of the testatrix’s own estate and also of all the property over which she had a general power of appointment...The provisions of the 1927 will are either entirely inconsistent with the provisions of the 1922 will and codicil, or repeat the provisions therein contained. I am consequently of the opinion that, as a matter of construction, the 1927 will in fact renders the whole of the provisions of the 1922 will and codicil ineffective, because so far as any of them are repeated in the 1927 will, those provisions take effect under the will and not under the 1922 will and codicil. ***

5.3 IMPLIED REVOCATION The Law of Succession Act does not expressly provide for implied revocation, but the wording of section 18(1) appears wide enough to cover the possibility of implied revocation. Implied revocation arises where a latter will or codicil is inconsistent with an earlier one; the latter is deemed to revoke the previous one to the extent that it is inconsistent to it. Case number 77 illustrates how the principle applies. Lemage v Goodman and others (1865) LR 1 P and D 57 (Sir J P Wilde)

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(Where there exist two testamentary papers, each professing in form to be the last will of the deceased, the court in determining whether one or both are entitled to probate must be guided by the consideration of what dispositions of his property the deceased designed to revoke or retain) CASE NO. 77

After the death of the deceased two papers were discovered which purported to distribute his property in the event of his death. Both papers gave the property to his sister.The first document bore the deceased’s signature but it was unattested.The other paper bore the signatures of the deceased and of witnesses. The sister died shortly after the deceased, and the deceased’s half brother cited the executors of the sister seeking to have them show cause why probate to the purported first will should not be revoked and grant made of the second will.The court pronounced both papers to be the will of the deceased.

SIR J P WILDE: The case of Plenty v West (1 Rob Ecc 204), so far as it supports the doctrine, that the use of the words ‘last will’ in a testamentary paper, necessarily imports a revocation of all previous instruments, is, I think, overruled by Cutto v Gilbert (9 Moo PC), and Stoddart v Grant (1 Macq), and the case of Henfrey v Henfrey (4 Moo PC), only decides that, a second will disposing of the whole estate, revokes a former

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disposition. Cases of the present character are properly questions of construction, and in deciding upon the effect of a subsequent will on former dispositions, this court has to exercise the functions of a court of construction. The principle applicable is well expressed in Mr Justice Williams’ book on Executors. he says, ‘The mere fact of making a subsequent testamentary paper, does not work a total revocation of a prior one, unless the latter expressly, or in effect, revoke the former, or the two be incapable of standing together ; for though it be a maxim, as Swinburne says above, that as no man can die with two testaments, yet any number of instruments, whatever be their relative date, or in whatever form they may be (so as they be all clearly testamentary), may be admitted to probate, as together containing the last will of the deceased. And if a subsequent testamentary paper be partly inconsistent with one of an earlier date, then such latter instrument will revoke the former, as to these parts only, where they are inconsistent.’ ...The will of a man is the aggregate of his testamentary intentions, so far as they are manifested in writing, duly executed according to the statute. And as a will, if contained in one document, any be of several sheets, so it may consist of several independent paper, each so executed. Redundancy or repetition in such independent papers, will no more necessarily vitiate any of them, than similar defects if appearing on the face of a single document. Now it was argued that in the case of more than one testamentary paper, each professing in form to be the last will of the deceased, it is necessary for the court, before concluding that they together constitute the will, to be satisfied that the testator intended them to operate together as such. In one sense this is true, for the intention of the testator in the matter is the sole guide and control. But the ‘intention’ to be sought and discovered, relates to the disposition of the testator’s property, and not to the form of the will. What dispositions did he intend? – not which, or what number, of papers did he desire or expect to be admitted to probate, - is the true question. And so this court has been in the habit of admitting to probate, such, and as many papers (all properly executed), as are necessary to effect the testator’s full wishes, and of solving the question of revocation, by considering not what papers have been apparently superseded by the act of executing others, but what dispositions it can be collected from the language of all the papers that the testator designed to revoke or retain. In this case such a task is not difficult. The first paper makes the testator’s sister the sole object of bounty and residuary legatee. ***

5.4 REVOCATION

BY

DESTRUCTION

In addition to express revocation, section 18(1) provides for revocation by destruction, ‘... by burning, tearing or otherwise destroying of the will with the intention of revoking it by the testator, or by some other person at his direction.’ (a)

Actual Destruction

One of the elements of revocation by destruction is that the will must actually be destroyed, whether partially or completely, and the act of destruction must be by burning, tearing or any act of similar class. Cases numbers 78, 79, 80, 81, 82 and 83 are on the element of actual destruction.

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Cheese v Lovejoy (1877) LR 2 PD 251 (James, Baggalay and Cotton LJJ) (The actual destruction must be by the physical act of burning, tearing or otherwise destroying the will)

CASE NO. 78

The testator had drawn a pen through the lines of some part of the will, leaving the words perfectly legible, and had written on the back ‘All these are revoked.’ He thereafter threw the will among a heap of waste paper on the floor. A servant took it from the floor of the sitting room and put it on a table in the kitchen. She left employment with the testator six months before his death. It was held by the Court of Appeal that the will was valid as whatever the testator did not amount to ‘otherwise destroying’ the will. The intention to destroy was not accompanied by the actual destruction of the will.

JAMES LJ: We cannot allow the appeal in this case. It is quite clear that a symbolic burning will not do, a symbolic tearing will not do, nor will a symbolic destruction. There must be the act as well as the intention. As it was put by Dr Deane in the court below; ‘All the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying: there must be the two. Doe D Perkes v Perkes (1820) 3 B and Ald 487; 106 ER 740 (Bayley J)

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CASE NO. 79

(To establish actual destruction, it must be proved that the acts of destruction were completed by the testator) The testator, being angry with one of the beneficiaries, began to tear it with the intention of destroying it: and having torn it into four pieces was prevented from proceeding further. He calmed down, and put the pieces together, expressing the satisfaction that no material part of the writing had been injured.

BAYLEY J: If the testator had done all that he originally intended, it would have amounted to a cancellation of the will; and nothing that afterwards took place could set it up again. But if the jury were satisfied that he was stopped in medial, then the act not having been completed will not be sufficient to destroy the validity of the will.

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Gill v Gill (1909) P 157 (Bargrave Deane J) CASE NO. 80

(If the revocation by destruction is by the act of some other person, it must be done in the presence of and by the direction of the testator) The testator’s wife tore up his will in a fit of anger and it was held that there was no actual destruction as the will was not done with the testator’s direction.

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BARGRAVE DEANE J:The Wills Act says that a will may be revoked in certain ways, one of which is by tearing, and it says that the tearing must be performed by the testator himself, or by his direction and in his presence – that is to say, the act must distinctly be done by the testator’s authority. In this particular case the will was torn up in the presence of the testator by his wife. Was it done by his authority? There is not a particle of evidence to suggest that he authorised it. The wife says that he did not, and on that I accept that she did it in a fit of temper. It was about as silly a thing to do as could possibly be imagined; but she was at the time beside herself with anger, just as he was beside himself with drink. I doubt whether, he had the capacity at the time to give any authority, and I do not think that she was sufficiently self-possessed to appreciate what she was doing. under these circumstances it is impossible to hold that the act of destruction was performed with the authority at that time, the dictum of Butt J in Mills v Milward (15 PD 20) indicates what in my opinion is good law, namely, that no amount of authority afterwards can be brought into play so as to ratify an act done without authority at the time. If a testator under such circumstances desired that the act of destruction, performed without his authority at the time, should prevail, he had it in his power to effectually to revoke his will in accordance with the provisions of the Wills Act. He could either execute a document expressly revoking his will, or he could make a fresh will dealing with his property in any way he chose. In the present instance, so far from doing anything of the sort, the testator always treated the act of destruction by his wife rather as a joke and as of no effect in law – and he was right. He told people what she had done in her temper, and he laughed at it; he spoke, within a few months of his death, of having left everything to his wife if she survived him. I am satisfied that this will was never revoked, and accordingly I admit to probate.

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In the Goods of Henrietta G Morton (1887) 12 P and D 14 (Butt J) CASE No. 81

(The actual destruction must be by the physical act of burning, tearing or otherwise destroying the will) The testatrix’s will was found in her box after her death with her own signature and the signatures of the attesting witnesses scratched out as if with a penknife.

BUTT J: I do not think there is any difficulty in the case. What the testatrix did may be regarded as a lateral cutting out. The paper is not pierced but the signatures are scratched away. I think the will has been revoked, and I grant administration to the applicant. In the Goods of John Woodward (1872) LR 2 P and D 406 (Lord Penzance) (Whether the actual destruction of part of a will results in the revocation of the whole or part of the will depends on the part actually destroyed. If the destroyed part impinges on the whole will the entire will will be revoked, if it is less important, then, only those parts of the will will be revoked)

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CASE NO. 82

The testator made a will consisting of seven sheets of paper, and was properly executed by the testator and the witnesses on each sheet, and at the end of the will. He tore off eight lines of one page.The executor sought probate of the will, and it was held only the lines torn off were revoked, otherwise the rest of the will remained valid. It was found that the part torn off did not affect the rest of the document as it contained the revocation clause only. Probate was granted of the remaining parts of the document.

LORD PENZANCE: On the death of the testator a will was found on his custody, and duly executed; and the question is, whether it was revoked. The only evidence of the matter is contained in the fact that when found seven or eight lines at the beginning of the document had been partially cut and partially torn off. The point for my decision is, whether in that state of thing, without any other circumstances tending to show that the testator intended to revoke his will, a revocation has been effected. By 20 section (1 Vict c 26) no will or codicil, or any part thereof shall be revoked otherwise than by marriage, or by another will, codicil, or writing duly executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction, with the intention of revoking the same. Here the will was duly executed, and there is no evidence of an intention to revoking the same. Here the will was duly executed, and there is no evidence of an intention to revoke it unless such an intention can be gathered from the fact that the first lines of the will were destroyed. The case of Clarke v Scripps (2 Rob Ecc 563) seems to be most in

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point. That was a very careful judgement of Sir J Dodson, in which he investigated all the previous decisions, and I quite coincide in the reasons he gives for his judgement. He says: ‘Out of the mutilated state of this instrument raises the question, not very easy of solution, namely, whether the will is to be considered revoked in toto, or in part only. Upon this enactment (1 Vict c 26, section 20) it is obvious, first, that a part only of a will may be revoked in the manner described; in other words, that the whole will is not necessarily revoked by the destruction of a part; nevertheless, I do not by any means intend to say that the destruction of the part may not under certain circumstances operate as a revocation of the entire will. Secondly, it is to be observed that the burning, tearing, or otherwise destroying the instrument must be done with the intention to revoke. It is not the mere manual operation of tearing the instrument, or the act of throwing it into a fire, or of destroying it by means, which will satisfy the requisites of the law; the act must be accompanied with the intention to revoke; there must be the animus as well as the act, both must concur in order to constitute a legal revocation. It is the animus also which must govern the extent and measure of operation to be attributed to the act, and determine whether the act shall effect the revocation of the whole instrument, or only of some and what portion thereof. now the intention of a testator to revoke wholly or in part may, I conceive, be proved, first, by evidence of the expressed declaration of a testator, especially if such declaration was contemporaneous with the act... Secondly, the intention may, in the absence of any express declaration, be inferred from the nature and extent of the act done by a testator, i.e., it may be inferred from the state and condition to which the instrument has been reduced by the act. From the face of the paper itself it may be inferred, either he did intend to destroy it altogether or did not.’... Applying the reasoning to the present case, I have come to the conclusion that, in the absence of any evidence to the contrary, the mere cutting off eight lines at the beginning of the document does not show an intention to revoke the whole will. it may be said that the object of tearing off the first part was to destroy the instrument that it was the last will and testament of the deceased; which is a material averment, but the force of that observation depends very much, if not entirely, upon the consideration whether there was anything else of moment or importance in that part of the will destroyed, which the testator might have wished to revoke. It is probable in this case that there was. It seems probable that the part torn off did contain something besides the mere statement that the document was the last will and testament of the deceased, and it might very well have been that the deceased tore it off in order to get rid that. I consider, under these circumstances, that the will is not revoked, and must be admitted to probate.

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In the Goods of Durance (1872) LR 2 P and D 406 (Lord Penzance)

CASE NO. 83

(A will destroyed following instructions from the testator contained in a letter or other document prepared by the testator directing the person addressed in the letter to destroy the will, would amount to effective revocation of the will so long as the letter is duly signed by the testator in the presence of witnesses) The testator wrote a letter to his brother directing the brother to obtain his will and burn it without reading it. He did a similar letter to his solicitors directing them to hand over his will to his brother. The testator signed both letters in the presence of two witnesses. Probate was sought of the will and also of the letters. It was held that the letter was duly executed declaring an intention to revoke the will. Administration with the letter to the brother only annexed was granted to the brother.

LORD PENZANCE: The question is, whether the will is not revoked by the letter. If a man writes to another ‘Go and get my will and burn it,’ he shows a strong intention to revoke his will in the language of the 20 section of the Wills Act (1 Vict c 26), the letter is a writing declaring an intention to revoke the will, and it is duly executed. It is also of a testamentary character, and therefore I shall grant administration with it annexed to Joseph Durance the brother and one of the next of kin. ***

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(b)

Presumption concerning Revocation by Destruction

The Law of Succession Act does not provide for this presumption, but at common law, where a will, which was last known to be in possession of the testator, was found among his property after his death torn or mutilated, a rebuttable presumption arises that he destroyed it with an intention of revoking it. Case number 84 illustrates this presumption.

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Re Jones (deceased): Evans v Harries and others [1976] 1 All ER 593 (Buckley, Roskill and Goff, LJJ) (Where a will is found mutilated after the testator’s death, a presumption arises that the will was destroyed by the testator with the intention of revoking it, if it is last known to be in his possession. Once an intention to revoke is established, it is necessary to decide whether the intention was absolute or conditional)

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CASE NO. 84

The testatrix made a will providing for her nephews and nieces. Later when the nephews and nieces stopped visiting her, she told her banker that she intended to change her will and leave the estate to another relative instead. She visited her solicitor’s office with the intention of making the changes, but he was not able to see her. She died before effecting the changes. Upon her death the will was found with the part containing her signature and those of the witnesses cut off as with a pair of scissors. The clause carrying the dispositions to the nephews and nieces was also cut off. The severed part was never found. One of the nieces sought to prove the will. It was held on appeal, on the facts, that the destruction had effectively revoked the will.

BUCKLEY LJ: Where a testator mutilates or destroys a will, the questions which arise, I think, are these: (1) Did he do so with the intention of revoking it? He may have believed that it had been effectively revoked by some other means, but was mistaken. In those circumstances, he may have merely torn it up, thinking that it was no longer worth the paper which it was written on. For myself, in those circumstances, I should have thought the right inference to draw was that he did not intend to revoke it at all; he was merely disposing of what he thought was rubbish. He may have destroyed it or mutilated it without realising that the document was in fact his will, or he may have been under some other kind of misapprehension. However, if the answer is that he did not destroy or mutilate it with the intention of revoking it, he cannot have revoked it, because section 20 of the Wills Act, 1837, so far as relevant, provides that a will shall be revoked by burning, tearing or otherwise destroying the same with the intention of revoking it if there is no intention of revoking it, the act of destruction or mutilation will not effect a revocation. If, however the answer to that question is that the testator did have a revocatory intention, the second question arises, which is this: (2) If he had an intention of revoking the will, was his intention absolute or qualified., so as to be contingent or conditional? If absolute, that is the end of the investigation, for the act takes effect as a revocation... If, however, it is qualified, the further question which arises is: (3) what was the nature of the qualifications? The testator’s intention may have been dependent on an

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intent to revive an earlier testamentary document, founded on an erroneous belief that the cancelation of the earlier will would have that effect, as in Powell v Powell ((1866) LR 1 P and D 209, [1861-73] All ER Rep 362); to it may have been wholly and solely dependent on an intention to displace it by some new testamentary disposition. An example of it may be taken to Dixon v Treasury Solicitor ((1905) page 42) where there was evidence that the testator thought that the cancellation of an earlier will was a necessary pre-condition of making a new one. If the testator’s intention was found to have been a qualified one, subject to some condition or contingency, the final question arises: (4) Has that condition or contingency been satisfied or occurred? If the condition or contingency to which the intention to revoke was subject has not been satisfied or occurred, the revocation is ineffective; if it has been satisfied or occurred, the revocation is effective. The fact that at the time of the mutilation or destruction the testator intended or contemplated making a new will is not, in my judgement, conclusive of the question whether his intention to revoke was dependent on his subsequently making a new will. A testator who has made a will in favour of A may become disenchanted with A and decide not to benefit him. He may well at the same time decide that in these circumstances he will benefit B instead of A. it does not by any means follow that his intention to disinherit A will be dependent on his benefiting B, or making a will under which B could take. If he were told that for some reason B could not or would not benefit under his new will, would the testator say, ‘In that case, I want my gift to A to stand,’ or would he say, ‘Well, even so, I do not wish A to benefit’?’ In the former case, his animus revocandi at the time of destruction or mutilation of his will could properly be regarded as dependent on the execution of a new will, but not the latter.

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It is consequently necessary to pay attention to the circumstances surrounding the mutilation or destruction of the will to discover whether any intention that the testator then had of revoking the will was absolute or qualified and, if qualified, in what way it was qualified. ROSKILL LJ: ... The sole question we have to decide is whether the revocation was conditional or absolute. By ‘conditional’ is meant that the efficacy of the revocation was dependent on the bringing into existence subsequently of a valid testamentary disposition, or of the existence or future existence of some fact. (See judgement of Sir J P Wilde, later Lord Penzance, in Powell v Powell (1866) LR 1 P and D 213) and of Atkin in Re Southerden [1925] All ER Rep 398 page 177). By ‘absolute’ is meant that the revocation was to take effect at once, irrespective of bringing into existence subsequently of a valid testamentary disposition, or of the existence or future existence of some fact... In short, in a case where the revocation purporting to be effected by mutilation or some other method of destruction is ‘conditional’ in the sense that I have described and the ‘condition’ is not fulfilled, the act of revocation is itself not fulfilled; it is ineffective because it was subject to an unfulfilled condition. But if the revocation is ‘absolute,’ in the sense in which I have used that word, then that revocation takes immediate effect, even if the result may subsequently be to bring about an intestacy, or some other result which it is difficult to believe the testator can have unintended in his or her

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lifetime. But I think counsel for the plaintiff was right when he said in argument that consideration is irrelevant, just as the judge’s condemnation of the plaintiff as a lair is for the purpose of determining the present appeal also largely irrelevant.The doctrine is there. Our duty is to apply it, or to refuse to apply it, to the facts as we find them. GOFF LJ: On the facts in this case, the question is whether the 1965 will was effectively revoked, or whether, no subsequent will having been executed, it is saved and stands good by virtue of the doctrine of dependent relative revocation. Very often the applicability of that doctrine comes in question when an act prima facie revoking a will is done in circumstances where, to use a neutral expression for the moment, a further will is in contemplation, but it is not confined to such cases. It arises also, for example, where the testator has made a mistake as to the material facts, or as to the result in law of an intestacy, or has acted in the erroneous belief that by revoking a will he can, without more, thereby revive a previous will which that will had itself revoked. In whatever way it arises, however, the principle on which it falls to be decided is, in my judgement, the same and well settled by authority. It is this: was the revocation absolute and unqualified, in which case it takes effect whatever happens, or conditional, in which case it does not take effect unless the condition be satisfied? I agree that each case must turn on its own facts and that reference to the authorities is of use, therefore, only insofar as they establish, as in my judgement they plainly do, the principle, which I have just stated. *** (c)

The Doctrine of Conditional Revocation

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Sometimes a testator destroys an earlier will with the intention of making another one or under some erroneous belief as to the effect of their act of destruction. In such cases the revocation is only conditional on a new will being executed. When such or other condition is not met the earlier will remains valid. Cases numbers 85 and 86 state and demonstrate the application of the doctrine.

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In the Estate of J R Southerden; Adams v Southerden [1925] All ER Rep 398 page 177 (Pollock MR, Warrington and Atkin LJJ) (Where a testator destroys his will under an erroneous belief as to the legal consequences which result from his act, the will would remain valid)

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CASE NO. 85

The deceased had made a will dated 25 September 1921, appointing the plaintiffs executors, and bequeathing all his real and personal estate to his wife in the event of her surviving him and made other dispositions in the event of her predeceasing him. That same year the deceased and his wife made a trip to America and back. Upon getting back to England safely they considered the will unnecessary and destroyed it as it had been made in contemplation of the husband dying during the trip to and from America. The deceased had always indicated that he intended his wife to be his sole heir. Upon his death, his executors sought probate, which was opposed by his father and his heir at law on the grounds that he had died intestate. It was held that the revocation was conditional on the widow taking the whole estate upon intestacy, as she was not entitled in intestacy to the whole estate and the condition could therefore not be fulfilled, and the will remained valid..

POLLOCK MR: ...In 1921 he and his wife made a voyage to America and back. Before he started it occurred to him that if the vessel went down, and, both he and his wife were drowned, some provision would be necessary to meet that contingency, and he made a will in order to meet it. after his return, according to the evidence of his widow, which the learned judge accepted, when looking through some papers he took up one, being his will, and said to her., ‘This is no good now: we have returned safely and it is all yours . We might as well burn it’ She assented, and he thereupon burnt it. The learned judge said he had had a great volume of evidence both before and after the destruction of the will showing that the testator still wanted his wife to have everything. It was argued, however, by the appellant that the destruction of the will was absolute, that the testator intended to die intestate; that he made no will until he was about to start for America, that on his return it was put into the fire as spent, and that the testator reverted to his original intention to die intestate. By the Wills Act, 1837, section 20 a will cannot be revoked except by another will, or document executed with the same with the same formalities as a will, ‘or by the burning, tearing, or otherwise destroying the same by the testator or some person in his presence and by his direction, with the intention of revoking the same.’ The judge has on the materials before him come to the conclusion that the testator destroyed his will under the impression which was wrong.There are a number of cases which show that where the revocation is based on a condition which is not fulfilled, the intended revocation does not take effect.

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In In re Faris (1911) 1 LR 469, 472 Meredith MR, adopting a statement of the law in Theobald on Wills (7 ed), page 750, said: “The true view may be that a revocation grounded on an assumption of fact which is false takes effect unless, as a matter of construction, the truth of the fact is the condition of the revocation, or, in other words, unless the revocation is contingent upon the fact being true...’ I adopt that statement of the law, merely substituting for the words ‘may be ‘the word’ is. The true view is, in my opinion, the view so clearly stated by Theobald.” The learned judge was justified in the conclusion he came to on the facts, and holding that the revocation of the will was conditional only and that the condition was not fulfilled. It is impossible to lay down a rule applicable to all cases. It is a question of fact in each case whether the condition is applicable, and if so, whether it has been fulfilled. WARRINGTON LJ: The authorities, in my opinion, clearly establish that the mere destruction is effected with an intention to revoke it. The court has still to ascertain with what intention the document was destroyed. The cases also establish that if the truth of a particular fact is a condition of the destruction, and the fact turns out not to be true, there is no revocation. In the present case the fact on the assumption of the truth of which the testator destroyed his will was that his wife would take the whole of the property. That assumption was of course incorrect. If the destruction was contingent on the truth of that fact it would have no effect.

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It was strenuously contended that the intention of the testator was to die intestate, and that any mistake as to the effect of an intestacy did not alter that intention. I think that argument is founded on a fallacy. In my opinion the intention of the testator in destroying the document was that his wife should have the entirety of his property, and he believed that if he died intestate that would be the result. ATKIN LJ: The true answer to the question in the present case is that there was in fact no intention to revoke the will at all. There has been brought into existence in recent years a doctrine which has been described as ‘dependent relative revocation.’ The question in each case is, had the testator the intention of revoking his will? The intention may be conditional, and if the revocation is subject to a condition which is not fulfilled, the revocation does not take effect. Cases of dependent relative revocation are mostly cases where the testator has supposed that if he destroyed his will his property would pass under some other document. But the condition is not necessarily limited to the existence of some other document. The revocation may be conditional on the existence or future existence of some fact. If that is proved full effect can be given to the Wills Act, 1837. You must prove that there was in fact a condition. It is a question of fact in each case. With great respect to the learned judge, I should not myself be satisfied with the saying that the testator was under a misapprehension of fact – he may have been so, but the misapprehension may not have been as to something that he intended to be conditional – whether it was or not a question of fact in each case. It is obvious in the present case that the testator was under the belief that on intestacy the whole of the property would pass to his wife. The words ‘It is no good’ clearly do not mean ‘This

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will is no longer operative.’They mean ‘This document is no longer necessary because the law will do all I desire, namely, give you all my property.’ I think the true inference of fact is that when the testator destroyed his will in the presence of his wife he did it on condition that she would take the whole of the property. The condition was not fulfilled, and therefore the revocation was not operative. Dixon v The Solicitor of the Treasury (1905) P 42 (Gorell Barnes J) (Where a testator destroys his will under an erroneous belief as to the legal consequences which result from his act, the will would remain valid)

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CASE NO. 86

The testator had instructed his solicitor to draw up a new will for him. Before the new one was drawn he cut off his signature on the previous will under the mistaken belief that the new one could not be drawn before the old had been revoked. He died before he could sign the new one. The matter before court was an action by the executor named in the old will who sought to propound it on the basis of the doctrine of dependent relative revocation, on the ground that the testator had destroyed his will with the intention that it should be revoked conditionally on his executing a fresh will. It was held that the will was still valid, as the testator had not executed the new will.

GORELL BARNES J: ...Looking at the will and the instructions given on February 7 for a fresh will, I do not think it is correct to say that the testator’s sole object was to deal with the legacy to one particular lady. It is obvious that the testator intended to make a new will, and did not intend that the Crown should take his property. He sent for his solicitor to take his instructions for a new will. The testator there and then cut out his own signature with a pair of scissors. It was just one of those stupid acts without which this court might almost cease to exist. There is no doubt that the testator did what he did because he was making a new will. There is a point in this case which seems to differentiate it from those reported cases in which the judges were in doubt. if this testator cut out his signature because he thought that he had to cut it out before he could start operations on the fresh will, then he was doing that act as part of the operation of bringing a new will into force; and, if this were so, it follows that he would not have cut out his signature if he had thought that it would have the effect of making him die intestate. ...I pronounce for the will. The costs must of course come out of the estate. The litigation has arisen through the testator’s own fault. ***

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5.5 REVOCATION BY MARRIAGE Section 19 of the Law of Succession Act provides for the revocation of a will by marriage. The provision says: ‘A will shall be revoked by the marriage of the maker; but where a will is expressed to be made in contemplation of marriage with a specified person, it shall not be revoked by the marriage so contemplated’

This is revocation by the operation of the law, since the testator does not intend by the marriage to cause the revocation of the will, but to achieve another end. Cases numbers 87, 88 and 89 illustrate how this principle works. Pilot v Gainfort (1931) P 103 (Lord Merrivale P) (The subsequent marriage of the testator has the effect of revoking his previous will, unless the previous will had been made in contemplation of the said marriage)

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CASE NO. 87

The testator, previously married to a woman who had thereafter left him and had not been heard of for a long time, made a will leaving his estate to a woman he was living with and whom he described as his wife. He afterwards married her. When the matter of the construction of the bequest to her came up for determination, the court held that the marriage was prima facie valid and that the will was expressed to be made in contemplation of it, the will was therefore not revoked by the said marriage.

LORD MERRIVALE P: At a time when this marriage was within the contemplation of the testator, if he could validly contract it, he wrote out this holograph document, the material part of which is a bequest to the plaintiff, whom he described as his wife, of all that he had. According to the former law the document would now have been ineffective, but the testator must be taken to have had knowledge of the Act of 1925, which prescribes that the solemnization of his marriage shall not revoke his will made in contemplation of that marriage. Under the circumstances I do not think that it can be doubted that the will was in contemplation of the subsequent marriage and practically expresses that contemplation and is good.

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Sallis and another v Jones (1936) P 43 [1935] All ER (Bennett J) (A will will be rendered valid where the testator makes it in contemplation of marriage to a particular person named in the will, rather than to marriage in general.)

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CASE NO. 88

The testator made a will sometime in June, 1927, appointing his two daughters, the executrix of the will and the residuary legatees of the estate.The will contained an expression in its final sentence ‘that this will is made in contemplation of marriage.’ He married his second wife, his first wife having predeceased him, in November, 1927. He died in 1934, and his daughters sought probate to the will of 1927. The widow of the deceased resisted the application for probate saying that the will was invalid. She took the position that the will was not made in contemplation of marriage, since the clause on contemplation of marriage was in general terms, rather than referring to a contemplated marriage to a particular person. The court held that the will was not made in contemplation of marriage, since the declaration in the will contained to a reference to marriage generally, rather than a contemplation of marriage with a specified person, and therefore it had been revoked by the subsequent marriage of the deceased to the second wife.

BENNETT J: In my judgement section 177 of the Law of Property Act, 1925, upon its true construction excludes the operation of section 18 of the Wills Act if the will made before marriage is expressed to be made in contemplation of a particular marriage and is followed by the solemnization of that marriage. It is plain, in my judgement, upon the strict construction of section 177 of the Act of 1925, that it has no operation unless is found in the will something more than a declaration containing a reference to marriage generally. All that is to be found in the present will is a declaration that the will was made ‘in contemplation of marriage’ and nothing more. In my view the will propounded by the plaintiffs was revoked by the subsequent marriage of the deceased, and I pronounce against that will.

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In the Estate of Langston, deceased [1953] 1 All ER 928 page 100 (Davies J) (A will made in contemplation of marriage is not revoked by the testator’s subsequent marriage to the person contemplated in the will)

CASE NO. 89

The testator was a widower whose first wife was deceased. He thereafter executed a will and subsequently married the applicant in this motion. By his will he left everything to his ‘fiancée’ named in the will and appointed her the sole executrix of the will. DAVIES J: ...In my opinion the proper test is this: Did the testator express the fact that he was contemplating marriage to a particular person? Those authorities all seem to me to make it clear that in the present case when the testator used the words ‘unto my fiancée Maida Edith Beck’ he was expressing a contemplation of marriage to that named lady. In In re Knight (1944), unreported, is, in my opinion, a direct authority in favour of the present motion: there is obviously no effective difference between ‘my future wife’ and ‘my fiancée.’ I accordingly hold that this will was so made and was therefore was not revoked by the subsequent marriage. ***

5.6 REVOCATION

BY

DIVORCE

The Law of Succession Act does not recognise revocation by divorce. The common law, as stated in case number 90, does not also recognise it.

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Re Bird Deceased [1970] EA 289 (Platt J) (Divorce does not ipso facto revoke a will). CASE NO. 90

The testator had left all his property to his wife named in the will. The parties then divorced, but the testator did not alter his will to remove the name of the former spouse. When the testator died an issue arose as to whether the former wife was entitled to the property of the deceased. It was held that divorce does not ipso facto revoke a will, and the former spouse was the beneficiary named in the will she was entitled.

PLATT J:This is an application for grant of probate to Margaret Fox, formerly Margaret Bird, of the will of Robert William Stafford Bird, and the application involves two questions.The first is whether Margaret Fox having divorced the testator, is still entitled under the will to all the testator’s property and to be appointed his sole executrix…

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Under cl. 3 of the will, the testator provided as follows: ‘If my wife Margaret Bird shall be living at the expiration of seven (7) clear days excluding the day of my death) after my death I give her absolutely all my property of whatsoever kind and wheresoever situated and appoint her my sole executrix.’

Then in September 1962, the testator and Margaret Bird were divorced. A daughter Jessica and a son Peter Bird were the issue of the marriage. Later Margaret Bird remarried and is now Margaret Fox. The question then is whether the reference to ‘my wife Margaret Bird’ is sufficient and suitable reference to Margaret Fox so as to entitle her to the property of the testator and to be appointed executrix. Clause 4 continues: ‘If my said wife shall not be living at the expiration of the period aforesaid then the following provisions shall have effect.’

…It follows that the will did not envisage the situation which might arise if the testator should divorce his wife Margaret Bird.The only condition to her receiving all the property and being appointed executrix was that she should be living at the time of the testator’s death. But it might be thought that she must be his wife and that as she was not his wife at the time of his death, she must be excluded from the will.

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…Mr Cassidy urged the court to take the view that the divorce had not caused a voluntary revocation of the will. Margaret Bird had been correctly described in the will as the testator’s wife at the time that the will was made, and the testator having possession of the will and having made one alteration due to the death of his mother, must be taken to have intended that Margaret Bird was still to be entitled under clause 3 of the will. No East African authority could be discovered, but he referred the court to Jarman on Wills (8 ed),Volume 2, page 1239, from which it would appear that a divorce does not ipso facto revoke the will. He also referred to Halsbury’s Statutes, Volume 34, where in dealing with voluntary revocation of wills, the learned author sets out the only events in which such revocation would be effected. (See paragraph107 of (2 ed) or Volume 39, (3 ed), paragraph 1354.) Nothing is stated as to divorce. …It is true Margaret Bird has remarried, but I cannot see that that can make any difference. Accordingly, I am satisfied that Margaret Fox is the identical person to Margaret Bird, who was described by the testator as his wife, as indeed she then was. As the testator did not alter his will, and as the divorce did not operate as a voluntary revocation, Margaret Fox is entitled, under cl. 3, to the testator’s property and to be appointed his sole executrix. ***

5.7 ALTERATION

OF WILLS

It is permissible to make alteration to wills and testaments. The law on alterations is section 20 of the Law of Succession Act. The provision provides: ‘20(1) No obliteration, interlineations or other alteration made in a written will after the execution of thereof shall have any effect unless the alteration is signed and attested as a written will is required to be under section 11.

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Provided that a will as so altered shall be deemed to be duly executed if the signature of the testator and the description of the witnesses is made in the margin or on some other part of the will opposite or near to the alteration, or is referred to in a memorandum written at the end or some other part of the will and so signed and attested. (2)

Where a typewritten or printed will purports to have been executed by the filling in of any blank spaces, there shall be a presumption that the will has been duly executed.’

Case number 91 is on the matters set out in section 20 of the Law of Succession Act, especially obliterations. In the Goods of Horsford (1874) LR 3 P and D 211 (Sir J Hannen)

CASE NO. 91

(Where an unattested alteration is made after the execution of the will, its precise effect depends on whether the original wording is apparent or not apparent. Where a testator has pasted a piece of paper over a whole legacy and the witnesses have no information on it, the court will not order that the upper paper be removed, and will direct probate to issue in blank as to that legacy).

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The facts are stated in the judgement. SIR J HANNEN: ...A further question arose as to certain obliterations which appear upon the will and codicil, and of which the attesting witnesses were unable to give any account. Strips of paper have been pasted over portions of the original will and codicil, and on some of these strips, words have been written by the testator, by has sought to make bequest to several legatees. It is clear that the words so written on the strips of paper must follow the fate of ordinary alterations, and in the absence of evidence showing when they were made, it must be presumed that they were so added after the execution of the will and codicil. But ought I to treat the words over which the pieces of paper are pasted as effectually obliterated, and grant probate of the will with the hidden passages as blank, or ought I to endeavour to ascertain what words have been covered up, and include them in the probate? As to the will, the answer to these questions depends upon the construction to be put on the 21 section of the statute 1 Vict c 26, by which it is enacted that no obliteration, interlineations, or other alteration made in any will after the execution thereof, shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will. soon after the passing of the Act, Sir H J Fust, in Townley v Watson (1844) (3 Curt 761), decided that the construction to be put upon the words of the 21 was that the effect of the will before the alterations must be apparent on the face of the instrument itself. He said: “What is obliteration? Is it not by some means covering over words originally written, so as to render them not legible? I cannot understand, if the legislature really intended that extrinsic evidence should be admitted, why a few more words were not added, which would have freed the section from all doubt; for instance, why was it not thus penned: ‘unless the words shall be capable of being made apparent?’ ” I think it is impossible to read the words

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of the statute, and not say that it was the intention of the legislature that, if a testator shall take such pains to obliterate certain passages in his will, and shall so effectually accomplish his purpose that those passages cannot be made out on the face of the instrument itself, it shall be a revocation as good and valid as if done according to the stricter forms mentioned in the Act of Parliament... I think the word ‘apparent’ in the 21 section means apparent on the face of the instrument in the condition in which it was left by the testator, and that if he has had recourse to extraordinary means to obliterate what he had written then this court is not bound to take any steps to undo what he had done. The statute does not draw any distinction between different modes of obliteration. The effacement of the original writing as performed by this testator, by pasting paper over it, is complete, and I can see no reason why the court should remove the pasted paper used as the instrument of obliteration, rather than ink used for the same purpose. I shall therefore give no directions on the subject so far as the will is concerned; and, assuming that the words covered over cannot be ascertained by inspection, the probate must go with those parts in blank. But with regard to the obliterations in the codicil, the same is different. There the amount of a legacy has been obliterated, leaving the name of the legatee untouched. As to this, I am in a position to infer that the testator’s intention was only to revoke that portion of the codicil which was covered in the event of his having effectually substituted another bequest in its place, and thus the doctrine of dependent relative revocation becomes applicable. As to these alterations, the court is at liberty to have recourse to any means of legal proof by which to ascertain the original disposition, and amongst such means, the removal of the strips of paper is the most obvious. I therefore direct that the strip on which is written the word ten, as well as the strip on which are written the words ‘which will be found with’ (to which the same remarks are applicable) be removed in the registry from the codicil, and that probate be granted of that instrument in its unaltered condition. ***

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5.8 REVIVAL

OF WILLS

There is provision in the Law of Succession Act, for the revival of a revoked will. section 21 of the Act provides on the subject that: ‘21(1) No will which has been in any manner wholly revoked shall be revived otherwise than by the re-execution thereof. (2)

Where only part of a will has been revoked, that part shall not be revived otherwise than by the re-execution thereof or by a subsequent will or codicil showing an intention to revive it.’

Cases numbers 92, 93 and 94 deal with revival of wills, and the principles set out in these cases are the same upon which section 21 of the Law of Succession Act applies.

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In re Hardyman:Teesdale v McClintock (1925) 1 Ch 287 (Romer J) (The effect of a revival of a will or codicil is to make it speak from the date on which it was revived. As it speaks from the date of the revival, references to persons in the will or codicil are to persons at the date of the revival)

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CASE NO. 92

A testatrix made a will bequeathing a legacy of 5 000-00 ‘in trust to my cousin, his children and his wife failing his children upon his death and that of his wife or until she marries again the said sum of five thousand pounds to be divided’ in manner therein mentioned.The cousin of the testatrix was at the date of the will, married to his first wife and she predeceased the testatrix. The testatrix made a codicil to her will after that making further bequests, the codicil did not refer to the bequest of 5 000-00. The cousin later remarried. He died, but there was no issue of either marriage. The matter for determination by the court was whether the second wife was entitled to the bequest of 5 000-00. It was held that the will and codicil must be read together, and that the second wife was entitled to an interest in the 5 000-00 for her life or until remarriage.

ROMER J: It is, however, admitted that the effect of the codicil is to republish the will; it is a republication of the will as at the date f the codicil and the effect of such a republication has been considered in several cases which have cited to me. In In re Fraser ((1904) 1 Ch 726), which is a decision of the Court of Appeal, such a question had to be considered, and in the judgement of the court, delivered by Stirling LJ, the effect of republication is described in these words: ‘The effect of this’ – is to bring the will down to the date of the codicil, and effect the same disposition of the testator’s estate as if the testator had at that date made a new will, containing the same dispositions as the original will, but with the alterations introduced by the various codicils. In accordance with the principle, recognised by the Court of Appeal in In re Fraser, it had been held in an old case Barnes v Crowe ((1 Ves Jun 486), decided before the Wills Act, that the effect of the republication of a will was to include within the devise of the real estate contained in the will, land acquired after the date of the will. in In re Champion ((1893) 1 Ch 101) the principle was again applied by North J and the Court of Appeal. In that case a testator by a will made in April 1873, devised a freehold cottage with all the land thereunto belonging described as ‘now in my own occupation.’ In September, 1873, he purchased two fields adjoining the cottage and occupied them until his death. In 1877 he made a codicil by which he appointed certain persons as trustees and executors of his will and confirmed his will in other respects. North J came to the conclusion that the two fields passed under the will even apart from the republication of the will by the codicil. but after referring to Barnes v Crowe and other cases he added : ‘By these cases it seems to me perfectly well settled

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that, if there were nothing else in favour of the plaintiffs, the codicil makes the will take effect as if it had been executed at the date of the codicil.’ This decision was affirmed by the Court of Appeal. Lindley LJ, after referring to the facts, said: ‘This codicil having been made after the purchase of the two fields, what is its effect upon the devise contained in the will? In my opinion, it is quite clear that the two fields, which as well as the cottage were in his own occupation when he made the codicil, passed...’ It is, however, clear that the effect of republication is not such that one must necessarily construe the will for all purposes as though it had been made at the date of the codicil. That that was so was pointed out by Barton J in an Irish case of In re Moore ((1907) 1 IR 315), and I am told that Eve J, in recent case which is unreported, has taken the same view.

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It is not right therefore to say that the effect of republication of a will is that you must necessarily and for all purposes construe the will as though it had been made at the date of the codicil. Barton J, in the case of In re Moore, in my opinion, accurately sums up the law on the subject when he says: ‘The authorities which have been cited’ – mostly English authorities – ‘lead me to the conclusion that the courts have always treated the principle that republication makes the will speak as if it had been re-executed at the date of the codicil 3 not as a rigid formula or technical rule, but as a useful and flexible instrument for effectuating a testator’s intentions, by ascertaining them down to the latest date at which they have been expressed... ...It appears to me, in the circumstances, and having regard to the authorities, that I must construe the present will in light of the fact that by republication that the testatrix has said to me: ‘This will expresses my intentions at this date’ (i.e. the date at which this codicil was made), and that I must not disregard that fact. But Mr Swords, on behalf of those interested in contesting the claim of Colonel McClintock’s second wife, has asked me to pursue the following line of reasoning: He says that I must take the will first of all and substitute for the word ‘wife’ the name of the Colonel McClintock’s first wife and then, he says, having been done that, the testatrix has by her codicil only republished a will in which she has given a benefit to the first wife by name, and that, as his first wife predeceased the testatrix, the second wife cannot possibly take under that devise. It appears to me that to adopt such a course would not be to apply the rules as to republication with good sense and with discrimination, but to construe the will as though it had been republished. I cannot substitute the Christian name of the first wife for the word ‘wife’ unless I disregard the fact of the republication of the will and construe the will as though there had been no republication. What I have to construe is a will which has been republished, and which, as I say, is a will which the testatrix tells me expressed her wishes as they were at the date of her codicil. Approaching the document in that light, I find that the testatrix, knowing full well that Colonel McClintock’s first wife was dead, has directed that this legacy of 5 00000 shall be held for the benefit of Colonel McClintock, his wife and children. Now, he had no wife at that time; therefore, if those were the testatrix’s wishes at the date of the codicil the only person who could take under that provision would be, and is, the lady whom Colonel McClintock married after the testatrix’s death in 1903. It appears to me, therefore, that I ought to answer that has been asked by the summons by declaring that according to the true construction of the will and codicil, and in the events which have happened, the second wife of Colonel McClintock has an interest for her life or until she shall re-marry in the sum of 5 000-00.

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Rogers and Andrews v Goodenough (1862) 2 Sw and Tr 342; 164 ER 1028 CASE NO. 93

(Sir Cresswell) (A will which has been entirely destroyed by the testator animo revocandi cannot be revived) Facts are set out in the judgement.

SIR CRESSWELL: ...One will was made in 1858 and another in 1859, and then the will of 1858 was actually destroyed, the will of 1859 having previously revoked it. A codicil was afterwards made in terms purporting to be a codicil to the will of 1858. The first question is, whether the codicil could revive that will, assuming that the reference to it by date was correct, and that it was the intention of the testator that it should be so revived. That is a question to be determined by the Stat. 1 Vict c 26. When the instrument had been destroyed, it no longer existed either in law or fact; it did not exist as a will from the time when the second will was executed; it no longer existed as a written instrument; as a paper writing, from the time when it was burnt. Not being either a will or a writing, how could it again become a will? That question seems to be decided by the statute; the (9 ed) says, ‘that no will shall be valid unless it be in writing and executed in the manner hereinafter mentioned.’ It has been said that it could again become a will, because was revived by the codicil; but it could not be revived in its original condition of a written instrument, and thus the very first thing required by statute in order to make a will, cannot be satisfied. It appears to me that the expression ‘no will shall be valid’ applies equally to an original will and a revived will... In the Goods of Steele (1868) 1 P and D 575 (Sir J P Wilde)

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CASE NO. 94

(The intention to revive a will by codicil should appear on the face of the codicil, by express words referring to a will as revoked) The testator had made two wills, the latter will revoking the earlier will; he subsequently executed a codicil referring to the revoked will.

SIR J P WILDE: Thirdly, it has been decided by no less than three very remarkable cases,32 that if the codicil refer to a will with the intention of reviving it, and it turns out that such will had been entirely burnt or destroyed by the testator animus revocandi, the codicil cannot effect its revival. Assuming then...that a codicil may, by referring in adequate terms to a revoked will, revive that will if it be in existence, and that in ascertaining whether the testator intended such revival, the court is precluded, unless there is a latent ambiguity in the

32

Hale v Tokelove (1850) 2 Rob Ecc 318; 163 ER 1331, Newton v Newton (1861) 5 LT (NS) 218, and Rogers v Goodenough (1862) 2 Sw and Tr 342; 164 ER 1028

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codicil, from receiving any evidence except what may suffice to place it in the position of the testator, the next question will be, what is the effect of the statute?... ‘Showing an intention to revive the same.’ what is the meaning of these last words? ...if the merely declaring that a particular paper was to be taken as codicil to a particular will was all the legislature required, when it enacted that the codicil should ‘show an intention to revive’ were quite needless, for every codicil to a revoked will, by force of being a codicil to such will, so showed it . I therefore infer that the legislature meant that the intention of which it speaks should on the face of the codicil, either by express words referring to a will as revoked and importing an intention to revive the same, or by a disposition of the testator’s property inconsistent with any other intention, or by some other expressions conveying to the mind of the court, with reasonable certainty, the existence of the intention in question...

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...I conceive that, in the vast majority of cases, when a man declares his intention in a particular paper, varying his previous dispositions, shall be taken as a codicil ‘to his last will and testatment,’ he means that which really is his last will and testament, his then existing will, and the dispositions of his property then in force. In like manner, when he goes on to declare, in the common language of codicils, that ‘in all other respects he ratifies and confirms his last will and testatment,’ he really means to confirm that which exists, and not to bring to life a paper which has ceased to be testamentary or revive dispositions which have no existence, and are therefore not, properly speaking, capable of being ratified.

CHAPTER 6 GIFTS

BY WILL AND THEIR

FAILURE

6.1 INTRODUCTION A testator disposes of property as gifts. There are different types of gifts, and they are governed by a variety of doctrines, and the gifts fail for a variety of reasons. The Law of Succession Act categorises gifts, in the First Schedule to the Act.

6.2 GIFTS

BY WILL

Gifts are divided into general, specific, demonstrative, pecuniary and residuary gifts. Cases numbers 95 and 96 define general and specific gifts. Bothamley v Sherman (1875) LR 20 Eq 304 (Sir G Jessel MR) (A specific gift is a severed or distinguished part of the estate)

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CASE NO. 95

The testator made a bequest of shares and stocks in several companies to a number of beneficiaries. One of the beneficiaries requested the testator, before the testator’s death, to transfer stock in one of the companies to certain bankers to secure a debt made by the bankers to the beneficiary. At the date of the testator’s death, the property had not been retransferred to his name. Thereafter the bankers sold the stock and applied the proceeds in reduction of their debt. The beneficiary was ordered by the court to pay into court the equivalent of the value of the stock sold by his bankers. The matter before the court turned on who was entitled to the fund held by the court. The court held that the money should be paid to the specific legatee named in the will of the testators who were disappointed by the sale of the stock by the bankers.

SIR G JESSEL MR: The first question is, whether a bequest in these terms, ‘I bequeath all my shares or stock in the Midland Railway Company and all my East and West India Dock stock, and my debentures in the West Shropshire Mineral Railway Company,’ unto certain persons upon certain trusts, is a specific bequest. The first point to consider is, what a specific bequest means; and certainly great discouragement is thrown upon succeeding judges by Lord Cranworth’s observations

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in the case of Fielding v Preston (1 De G and J 443), in which he said: ‘There have been attempts in various cases to determine the meaning of a specific legacy, and what is the best test whereby such legacies may be distinguished from general bequests. There are objections to most of the definitions, but I think we are quite safe in treating that as a specific bequest which thee testator directs to be enjoyed in specie.’ That is no definition at all; it is simply saying (putting the words ‘in specie’ in English), ‘that is a specific bequest which the testator directs to be enjoyed specifically.’ However, notwithstanding that discouragement, I think one may arrive at a tolerably clear idea of what a specific bequest is. In the first place it is a part of the testator’s property. A general bequest may or may not be a part of the testator’s property. A man who gives £100 money or £100 stock may not have either the money or the stock, in which case the testator’s executors must raise the money or buy the stock; or he may have the money or stock sufficient to discharge the legacy., in which case the executors would probably discharge it out of the actual money or stock. But in the case of a general legacy it has no reference to the actual state of the testator’s property, it being only supposed that the testator has sufficient property, which on being realised will procure for the legatee that which is given to him, while in the case of a specific bequest it must be a part of the testator’s property itself. That is the first thing. In the next place, it must be a part emphatically, as distinguished from the whole. It must be what has been sometimes called a severed or distinguished part. It must not be the whole, in the meaning of being the totality of the testator’s property, or the totality of the general residue; it must be a part emphatically, as distinguished from the whole. It must be what has been sometimes called a severed or distinguished part. It must not be the whole, in the meaning of being the totality of the testator’s property, or the totality of the general residue; it must be a part emphatically, as distinguished from the whole. It must be what has been sometimes called a severed or distinguished part. It must not be the whole, in the meaning of being the totality of the testator’s property, or the totality of the general residue of his property after having given legacies out of it. But if it satisfies both conditions, that it is a part of the testator’s property itself, and is a part as distinguished, as I said before, from the whole, or from the whole of the residue, then it appears to me to satisfy everything that is required to treat it as a specific legacy. I hope the definition, which I have attempted to give, will be more successful than those, which have been attempted before, but I can only express that hope with some degree of trepidation. Now there can be no question, as I understand the authorities, that the part may be defined in any way which distinguishes it. If a testator gives ‘the black horses of which I shall be possessed at the time of my death,’ or at any other specified time, the gift satisfies the definition of a specific legacy... Supposing the gift to be specific, what was the right of the legatee at the death of the testator? At that time, the shares in question were pledged to Messrs Robarts and Co, not for the testator’s own debt, but for the debt of his friend. As I understand the law of specific devises and specific bequests, where a testator has pledged property to secure a debt (and I am not aware that it makes any difference whether he is personally liable or not personally liable for the debt), then as a rule (although there may be exceptions to that rule, as to most others) the legatee has a right to have the specific legacy redeemed out of the testator’s general personal estate.

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In re Rose: Midland Bank Executor and Trustee Limited v Rose [1948] 2 All ER 971, [1949] CH 78 (Jenkins J) (The court leans against specific legacies and is inclined to construe a legacy as general, since specific legacies tend to fail for ademption)

CASE NO. 96

The testator had bequeathed certain shares of different classes in a company to a number of beneficiaries. The issue arising was whether the gifts were specific or general. It was held that the gifts were specific. JENKINS J:The first question which I have to decide in this case is whether certain gifts of shares made by the testator are specific gifts or are in the nature of general legacies. I turn to the consideration of the question which is primarily one of the construction of the will, though the numerous authorities bearing upon the subject provide guidance as to the rules or principles of construction to be followed in its solution. One starts with the general proposition that the court leans against specific legacies, and is inclined, if it can, to construe a legacy as general rather than specific; so that if there is any doubt it should, on the whole, be resolved in favour of the view that the legacy is general. ***

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6.3 THE DOCTRINE

OF

ADEMPTION

Ademption deals with the situation where gifts have ceased to form part of the property of the deceased as at the date of his death. Ademption occurs on account of various reasons, and it results in the failure of such gifts. The doctrine is provided for under section 23 of the Law of Succession Act, and the circumstances under which and the manner and extent it applies are detailed in the Second Schedule to the Act. Cases numbers 97, 98 and 99 illustrate the application of the doctrine in a variety of situations. Section 23 provides: ‘Testamentary gifts and dispositions shall fail by way of ...ademption in the circumstances and manner and to the extent provided by the Third Schedule.’

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Lawes v Bennett (1785) Cox 167; 29 ER 1111. (Sir Lloyd Kenyon MR) (A specific gift of property in respect of which the testator had granted to a third party an option to purchase the property adeems whether or not the option is exercised)

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CASE NO. 97

The testator leased his property to a lessee, with an endorsement that the lessee had the option to purchase the same for £3 000. The lessee subsequently assigned the lease and the benefit to another. The testator then made a will giving all his real estate to a named male cousin, and all his personality to the cousin and his sister. After the testator’s death, the assignee claimed the benefit of the lease agreement, whereupon the cousin conveyed the same to him for £3 000. It was held that the sum of £3 000 when paid formed part of the personal estate of the deceased, and the cousin’s sister was entitled to a part of it.

SIR KENYON MR: It is very clear that if a man is seized of a real estate contract to sell it, and die before the contract is carried into execution; it is personal property of him. It seems to me to make no distinction at all. Suppose a man should bargain for the sale of timber provided the buyer should give proper security for the payment of the money. This when cut down would be part of the personal estate, although it depends upon the buyer whether he gives security or not...; when the party who had the power of making the election has elected, the whole is to be referred back to the original agreement, and the only difference is, that the real estate is converted into personal at a future period. the case of Bowes v Shrewsbury (5 Bro Parl Ca 269), shows the nature of the property may be altered otherwise than by the act of the original owner, although that was altered by the act of the legislature and not of any third person: but it shows generally that there is no impossibility in the nature of the thing...I must therefore declare this £3 000 to be part of the personal estate of the testator, and that the plaintiffs are entitled to the moiety...

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In re Leeming:Turner v Leeming (1912) 1 Ch 828 (Neville J) (If the company in which the testator held shares has been taken over since the execution of the will, it must be decided whether there has been a change in form or a change in substance. In case of change of substance, ademption will occur) CASE NO. 98

A testator gave, by his will, his fully paid up shares in a company to a beneficiary. Between the date of the will and the death of the testator the company went into voluntary liquidation for the purposes of reconstruction, and as so reconstructed was incorporated in the same name.The scheme of shareholding was slightly different from that in the old company, but in all other respects the new company was substantially the same as the old company. It was held that there was no ademption, and that the beneficiary was entitled to the substituted shares in the new company.

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NEVILLE J: I think that the shares in the new company are really in substance the same as the shares in the old company and represent the specific bequest.The subject-matter of the bequest remains though changed in number and form. They are substantially the same shares. The testator gave ‘my ten shares in the Kirkstall Brewery Company Limited’ to a legatee. There has been a dissolution of that company, but in substance it is the same company. It seems to me that the amount of the testator’s interest in the old company remains and is represented by the shares in the new company and is practically the same, and is changed in name and form only. I think, therefore, that there has been no ademption, and that the legatee is entitled to the shares in the new company.

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In re Calow: Calow v Calow (1928) 1 Ch 710 (Eve J) (A contract to sell the subject matter of a specific gift will cause a gift to fail for ademption even though the contract is not completed until after the testator’s death, but not in the case where the testator has made a contract to sell the subject matter of the gift before the will was executed, in such case the beneficiary will be entitled to the proceeds of sale)

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CASE NO. 99

A testator devised all his free property to trustees upon trust to hold the same or the proceeds of sale thereof for his two sons named as joint tenants, and gave and bequeathed his residuary real and personal estate to other persons. At the time of execution of the will the testator possessed 37 acres of the land, 10 acres of which he had contracted to sell. He died before the purchase had been completed. It was held that since the will was made after the contract of sale, and with full knowledge of the same, the same was indicative of an intention to pass whatever interest the testator had in the property to the specified devisees.

EVE J: The contract of 1921, followed by completion on 13 December 1925, operated as a complete conversion of the 101/3 acres, and the question I have to decide is whether the proceeds of sale of those 101/3 acres pass under the specific devise to the sons or whether they fall into residue. It is not suggested that, if in fact the 101/3 acres, the subject of the sale, had represented the whole of the testator’s land at Dagenham at the time of his will, the sons would not have been entitled to the sale moneys, but in this case there remains a moiety of 261/3 acres of freehold property Dagenham, and the case is not therefore one where a testator, having contracted to sell real estate before making his will, has with knowledge of the contract specifically devised the land so contracted to be sold and must in the circumstances be taken to have intended the devise to operate over the proceeds of the sale, but is the ordinary case of a testator, who having converted part only of the specific realty, may well have intended the remaining realty to pass under the specific devise, and the proceeds of that already converted to pass under the residuary bequest. The general rule is, I think, as stated by Mr Overton. It is to be found in the judgement of Wood VC in Weeding v Weeding (1861) (1 J and H 424) and reproduced in that of Stirling J in In re Pyle ((1895) 1 Ch 724: ‘When you find, that, in a will made after a contract giving an option to purchase, the testator, knowing of the existence of the contract, devises the specific property which is the subject of the contract, without referring in any way to the contract he has entered into, there is an intention to pass that property to give to the devisee all the interest, whatever it may be, that the testator had in it.’ Mr Everton says that the rule has been applied where the testator has not limited the devise to the specific property the subject of the contract, and that seems to be the result of the decision in the case of Drant v Vause (1 Y and C Ch 580). In that case the testator had demised

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certain freehold property at Sculcoates in the county of York to lessees for fourteen years, with a covenant therein that they should have the option at any time during the term of purchasing the property at the sum therein mentioned. He afterwards made his will, and devised all his real estate in the parish of Sculcoates and other specified places to trustees upon various trusts. Amongst those trusts was the trust to receive and take the rents and profits of the demised premises at Sculcoates and other lands so long as his son George should live and be under the age of twenty-one years, and when he should attain that age upon trust to permit him to receive the rents. After his death the lessees of the demised premises at Sculcoates having elected to exercise the option, the question arose whether the income of the proceeds of sale under the exercise of that option belonged to George or to residue, and the Vice-Chancellor held that in the circumstances and having regard to the special terms of then devise then general rule laid down in Lawse v Bennett (1 Cox 167)by Lord Kenyon was not applicable, and that the son George must be treated as entitled to the income of the proceeds of sale. ***

6.4 THE DOCTRINE

OF

LAPSE

It is the general law that a gift lapses in circumstances where the beneficiary predeceases the testator, although there are some exemptions to the rule. Case number 100 illustrates one of the exceptions to the general rule. The law on lapse is section 23 which says that: ‘testamentary gifts or dispositions shall fail by way of lapse... in the circumstances and manner and to the extent provided by the Second Schedule.’

Stevens v King (1904) 2 Ch 30

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(Farwell J) (The doctrine of lapse does not apply to a gift made to discharge a moral obligation, usually a debt to a beneficiary, as the court will imply that the gift is intended to pass into the estate of a beneficiary to whom the testator owes a moral obligation) CASE NO. 100

The testatrix owed her brother money, whereupon she undertook to execute in favour of the brother a valid appointment by will of the sum owed. She made a will where she appointed and bequeathed to the brother sums of money equal to the said liability. Apart from the said appointment she did not dispose of any of her property. The brother died during her lifetime. It was held that the gift to the brother did not lapse upon his death, since it was meant to satisfy a moral obligation.

FARWELL J: The order shows that Charlotte Blinks admitted a liability affecting her separate estate to pay this money to King, and she undertook to make an appointment in discharge of her liability. Then she made her will expressly in compliance with the

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order ...She made another appointment of 500-00, which was also in discharge of a debt, and appointed an executrix, but her will did not deal with any other property. I am only concerned with the appointment to W King. He died in the testatrix’s lifetime. The petitioners contend that the appointment lapsed by his death. The doctrine that a legacy lapses by the death of the legatee in the testator’s lifetime means, I take it, that the whole object of the testator in giving the legacy has failed by reason of the legatee’s death. But that must depend on the question what the testator’s object was. I think that the cases of Williamson v Naylor, Philips v Philips, and In re Sowerby’s Trust have established the rule that, if the court finds, upon the construction of the will, that the testator clearly intended not to give a mere bounty to the legatee, but to discharge what he regarded as a moral obligation, whether it were legally binding or not, and if that obligation still exists at the testator’s death, there is no necessary failure of the testator’s object merely because the legatee dies in his lifetime; and therefore death in such a case does not cause a lapse. On the construction of this will I think it is perfectly clear that the testatrix intended to discharge an obligation. And, in spite of the arguments of the petitioner’s counsel, I am satisfied that, if the liability had been discharged from another source,W King could have claimed the legacy though he had survived. I think also the fact that the testatrix, being a married and not dealing by her will with any property of her own, appointed an executrix of affords an additional argument that the executrix was to discharge these obligations to the persons entitled thereto; otherwise there is no reason for her appointment. The result is that there is no lapse, and the appointed funds must be paid to the legal personal representative of W King.

6.5 UNCERTAINTY

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A gift will fail for uncertainty, where the subject matter of the gift or the beneficiaries cannot be identified with sufficient certainty. The Law of Succession Act does not address the issue of uncertainty, but there is sufficient case law on the subject, cases numbers 101, 102 and 103 being some of them.

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In re Golay’s Will Trusts: Morris v Bridgewater and others (1965) 1 WLR 969 (Ungoed Thomas J) (A gift will fail for uncertainty unless the subject-matter of the gift is sufficiently identified) CASE NO. 101

By his will, the testator directed that a beneficiary was ‘to enjoy one of my flats during his lifetime and to receive a reasonable income from my other properties....’ The summons before the court was by the executor for the determination whether on the true construction of the will that direction was void for uncertainty. The court held that the direction was valid as giving the executors an effective determinant by which effect could be given to his intentions.

UNGOED THOMAS J: The question therefore comes to this: Whether the testator by the words ‘reasonable income’ has given a sufficient indication of his intention to provide an effective determinant of what he intends so that the court in applying that determinant can give effect to the testator’s intention.

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Whether the yardstick of ‘reasonable income’ were applied by the trustees under a discretion given to them by a testator or applied by a court in course of interpreting and applying the words ‘reasonable income’ in a will, the yardstick sought to be applied by the trustees in the one case and the court in the other would be identical. The trustees might be other than the original trustees named by the testator and the trustees could even surrender their discretion to the court. It would seem to me to be drawing too fine a distinction to conclude that an objective yardstick which different persons sought to apply would be too uncertain, not because of uncertainty in the yardstick but as between those who seek to apply it. In this case, however, the yardstick indicated by the testator is not what he or some other specified person subjectively considers to be reasonable but what he identifies objectively as ‘reasonable income.’ The court is constantly involved in making such objective assessments of what is reasonable and it is not to be deterred from doing so because subjective influences can never be wholly excluded. In my view the testator intended by ‘reasonable income’ the yardstick which the court could and would apply in quantifying the amount so that the direction in the will is not in my view defeated by uncertainty.

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In the matter of the Estate of George Percy Smithson, Deceased (1942) 22 EACA 13 (Lucie-Smith J) CASE NO. 102

(Whether a gift meets the test of a charitable bequest depends on the construction to which the court gives the provision as set out in the will, certainty and the possibility of performance) Facts are set out in the judgement

LUCIE-SMITH J: By his will dated 8 May 1938, the testator George Percy Smithson made amongst others the bequests: 1.

‘Three thousand pounds to the Governors of Sedbergh School Yorkshire the interest on which is to be paid towards a holiday trip for a few Sedbergh School selected boys to go to the Continent of Europe yearly.’

2.

‘Sixty shillings to each squatter family or regular worker on my farm at Elburgon at my death.’

3.

‘The residue of my estate I leave to African Leper Missionaries and leper hospitals at present and to be established in Africa only.’

By Originating Summons dated 18 March 1943, one of the executors of the estate asks the court to decide:(a)

Whether the legacy of £3 000 (1 above) constitutes a charitable trust and such should be given effect to notwithstanding the rule against perpetuities.

(b)

What is the true construction of the bequest provided for the will under 2 above in view of the fact that the farm at Elburgon referred to in the will had passed out of the possession of the testator before his death.

(c)

Whether the gift of the residue for the purposes set out in 3 above constitutes a valid charitable bequest.’

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Dealing with the first question: A. In Commissioners of Income Tax v Pemsel (1891); [1891] All ER AC page 531 Lord Macnagten at page 583 said: “‘Charity’ in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.” It is of interest to note that earlier in his judgement in commenting on the paraphrase of the Master of the Rolls, His Lordship says: ‘If I may say so without offence, under conceivable circumstances it (the paraphrase) might cover a trip to the Continent or a box at the opera.’ In re Drummond, Ashworth v Drummond (1914); [1914-15] All ER 2 Ch 90 the validity of a residuary gift in favour of the Old Bradfordians Club was in question and Eve J, page 98 held that there was a valid gift to the club for such purposes as the Committee should determine for the benefit of the old boys or members of the Club. In re Mellody, Broadwood v Haden (1918); 1 [1916-17] All ER Ch 228 it was held that the bequest was a good charitable gift on two grounds, first as tending to the advancement of education by giving the children an opportunity of observing objects of the countryside and also by affording an incentive to regular attendance and

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industry in be selected as participants.The judgement of Eve J, at page 230 is short and interesting, more especially where he points out that ‘It is no doubt true that a school treat may not always be used only for educational purposes, but it does not necessarily follow that it partakes of the orgies of a juvenile beanfast..’ In re Mariette: Mariette v Governing Body of Aldenham School (1915)2 Ch 284 [191415] All ER it was held that a legacy of £1 000 for the purposes of building Eton five courts or squash racquet courts or for some similar purpose was a valid charitable bequest, it being essential in a school of learning such as the one concerned that there should be organised games as part of the daily routine. Eve J, in his judgement at page 288 says:‘The object of this charity is the education, in the widest sense of boys and young men between the ages of ten and nineteen.’ Cf. Shillington v Portadown UDC (1911) 1 Ir R 247. In re Ward’s Estate: Ward v Ward (1937) 81 Sol Jo 397 a bequest ‘to the British Legion Eastleigh Club of £100 on trust interest to be used for the children’s outing’ was held to be a good charitable bequest. Simmonds J, in his judgement said ‘The gift could only be supported as one for educational purposes. The nearest case to this was In re Mellody. There was no reason to believe that the outing would be used only for the purposes of a ‘juvenile beanfast’ or to doubt that it would be used for the purpose of instructing the children. It could well be regarded as serving definite educational purposes. It was a good charitable gift.’ Reference may also be made to Re Corby: Midland Bank, etc v Attorney General and Johnson [1941] 2 All ER 160, in which the question of ‘trusts for the advancement of education’ laid by Lord Macnagten (supra) was considered.

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In view of the cases referred to above and the fact that for many years ‘the grand tour’ was considered to be the coping stone of a first class education, I have no doubt that the bequest of £3 000 to the Governors of Sedbergh School with the direction that the interest on that sum is to be paid towards a holiday trip for a few Sedbergh School selected boys to go to the Continent of Europe yearly is a good charitable bequest as being a trust for the advancement of education. B. as regards the bequest of ‘Sixty shillings to each squatter family or regular worker on my farm at Elburgon at the time of my death’ it is admitted that the farm referred to had passed out of the possession of the testator before his death and the bequest must therefore fail on the ground of impossibility of performance and failure of object. Cf Tharp Longrigg v People’s Dispensary [1942] 2 All ER 358. C. Finally the court is called on to consider the gift of the residue of the estate to ‘African Leper Missionaries and Leper Hospitals at present and to be established in Africa only.’ It has been suggested by Dr Mathews, to whom the court is indebted for his very full analysis of the law, that the ‘and’ may be disjunctive, thereby creating two trusts, one for ‘African Leper Missionaries,’ the other to ‘Leper Hospitals at present and to be established in Africa only.’ If this is so one would also have to consider whether the testator did not intend to benefit those Leper Missionaries who were Africans. There is also the possibility, if not probability, that the testator in using the words ‘in Africa only’ meant that part of Africa in which he lived and was interested, to wit, Kenya – in the words of Lord Davey in Hunter v Attorney General (1899) AC at page 321 ‘volit sed non dixit.’

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It appears to me that the intention expressed by the testator was to benefit the lepers of Africa through the medium of Missionaries in Africa and leper Hospitals in Africa. In other words it is a charitable trust under the first and fourth divisions laid down by Lord Macnagten in the Pemsel case (supra), viz: (I) trusts for the relief of poverty and (ii) trusts for other purposes beneficial to the community, not falling under any of the preceding heads. It is one trust for the benefit of lepers in Africa. For obvious reasons the trust cannot be carried out to the extent and in the manner desired by the testator and it now falls to be decided whether the doctrine of cy pres can be called in aid. The principle of cy pres is referred to by Lord Eldon in Attorney General v Whitely (1905) 11 Vesey 241 at 251 as follows: ‘A case may arise in which the will cannot be obeyed; but then the fund will not go to the heir, upon the principle that an application is to be made as near as may be, growing out of another principle that you are to apply it to the objects intended if you can.’ I would also refer to the words of the Master of the Rolls in Attorney General v Boulthee (1794) 2 Ves 380: ‘As to the doctrine of cy pres as applied to charities, this sensible distinction has prevailed: the court will not decree execution of a trust of a charity in a manner different from that intended, except in so far as they see that the intention cannot be executed literally: but another mode may be adopted consistent with his general intention so as to execute it though not in mode substance.’

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I have already said that in my opinion the gift with which we are at present dealing is a charitable gift, but it must be remembered that for the application of the cy pres principle charitable gifts are divided into two classes: those which are prompted by a general intention of charity, and those which are not. In Clark v Taylor (1853) 1 Drew 642, Kindersley VC, is reported as follows: ‘Now there is a distinction well settled by the authorities. There is one class of cases, in which there is a gift to charity generally, indicative of a general charitable purpose, and pointing out the mode of carrying it into effect; if that mode fails the court says the general purpose of charity shall be carried out. There is another class in which the testator shows an intention, not of general charity, but to give to some particular institution; and then if it fails, because there is no such institution (or I suggest for any other reason such as uncertainty or impossibility of performance) the gift does not go to charity generally; that distinction is clearly recognised; and it cannot be said that whenever a gift to any charitable purpose fails, it is nevertheless to go to charity.’ ...in re Stanford: University of Cambridge v Attorney General (1924) 1 Ch 73 it was held inter alia that in the absence of any general charitable intention to be gathered from the terms of the bequest there was no room for the application of the doctrine of cy pres . In the course of argument Eve J, interpolated at page 75:‘what evidence is there of any general charitable intention here beyond the particular purpose specified. Unless such an intention is to be found the doctrine of cy pres cannot be applied.’ To sum up I find that the legacy of the residue to the lepers of Africa is a good charitable bequest but void for uncertainty and impossibility of performance.

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I further find that from the will there is no general charitable intention beyond the particular purpose specified and therefore that the doctrine of cy pres cannot be applied. This being so, the residue of the estate falls to be administered as an intestacy. The costs of all parties to this application will be paid out of the estate. Chichester Diocesan Fund and Board of Finance (Incorporated) v Simpson and others [1944] 2 All ER 60 (Lord MacMillan, Lord Simonds)

CASE NO. 103

(A testator must define with precision the persons or objects intended to benefit, and cannot leave the disposal of his estate to others. However, he may delegate to his trustees the election of individual persons or objects within a defined class, provided that he designates with precision a class of persons or objects to be benefitted)

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A testator made a gift for ‘benevolent’ purposes, and it was held that the gift failed, as the term benevolent, unlike charitable, has no meaning. The court stated that a gift will fail for uncertainty where the beneficiary or beneficiaries are described in terms which are conceptually uncertain. LORD MACMILLAN: My Lords, the law, in according the right to dispose of property mortis causa by will, is exacting in its requirement that the testator must define with precision the persons or objects he intends to benefit. This is the condition on which he is entitled to exclude the order of succession which the law otherwise provides. The choice of the beneficiaries must be the testator’s own choice. He cannot leave the disposal of his estate to others.The only latitude permitted is that, if he designates with sufficient precision a class of persons or objects to be benefited, he may delegate to his trustees the selection of individual persons within the defined class. The class must not be described in terms so vague and indeterminate that the trustees are afforded no effective guidance as to the ambit of the their power of selection:...Unfortunately for the efficacy of their testamentary dispositions, testators or their advisers, as the many reported cases show, frequently fail to observe this rule and by the language which they employ leave their trustees at large in the selection of the persons or objects to benefited with the result that the bequest is held void for uncertainty. LORD SIMONDS: ...It is a cardinal rule, common to English...law, that a man may not delegate his testamentary power. To him the law gives the right to dispose of his estate in favour of ascertained or ascertainable persons. He does not exercise that right if in effect he empowers his executors to say what persons or objects are to be his beneficiaries. To this salutary rule there is a single exception. A testator may validly leave it to his executors to determine what charitable objects shall benefit, so long as charitable and no other objects may benefit.

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CHAPTER 7 CONSTRUCTION

OF WILLS

7.1 INTRODUCTION The interpretation of wills and testaments is a matter that the court is often called upon to address when contention arises as to what meaning is to be ascribed to words and clauses as used in a will. The courts have over the years devised rules to govern construction of wills. The Law of Succession Act provides for it in section 22 which states that ‘Wills shall be construed in accordance with the provisions of the First Schedule.’

7.2 INTENTION

OF THE TESTATOR

The principal function of the court in construction of wills is to discover the intention of the testator from the words used in the will. The principle finds expression in the rules that: (a) the function of the court is to construe wills and not to remake them, (b) words are to be read in their ordinary natural sense, (c) the will must be read as a whole, and (d) the will must speak for itself. The cases under this heading (cases numbers 104, 105, 106, 107 and 108) demonstrate the application of this principle and the rules derived from it. Re Raphael: Public Trustee v Raphael [1972] EA 522

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(Simpson J) (The sole object in construction of wills is to ascertain from the will the testator’s intentions) CASE NO. 104

Both testators were found dead in a locked room, with bullet wounds.They each left a will, with provisions that were identical. Both wills contained clauses with the phrase ‘or of us dying together.’ The court was asked to construe these words. It was held that the words did not mean that the testators had to die at precisely the same instant. Based on that construction the court held that they died together within the meaning of the phrase in their wills.

SIMPSON J: The first question I am asked to answer is – Did the husband and wife die together within the meaning of that phrase in their wills?

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Mr Le Pelley who appeared for the Public Trustee invited my attention to the manner of approach to the interpretation of wills indicated in the well-known English case of Perrin v Morgan, [1943] 1 All ER 187 . As Lord Atkin said ‘the sole object is, of course, to ascertain from the will the testator’s intentions’ and he remarked that the result of their Lordship’s decision in that case would be: ‘to relieve judges in the future from the thraldom often...self-imposed, of judgements in other cases believed to constrain them to give a meaning to wills which they know to be contrary to the testator’s intention.’

Only one case on the construction of an expression similar to that used in the wills at present under consideration was brought to my notice. This was in In re Rowland decd, [1962] 2 All ER 1 Ch 1 in which the Court of Appeal in England considered the meaning of the expression ‘preceding or coinciding with my own decease’ appearing in a husband’s will with reference to the death of his wife. Both husband and wife were passengers aboard a small ship which disappeared without survivors on an unknown date among the Solomon Islands. The court held by a majority that ‘coincide’ bore its natural and ordinary meaning of ‘simultaneous’ because it was used in juxtaposition with ‘preceding.’ Having regard to the views of the House of Lords expressed in Perrin v Morgan the decision is with respect a surprising one and I find myself more in sympathy with the minority view expressed by Lord Denning, MR, who declined to ask himself what the words meant to a grammarian but what the testator meant. He decided that the testator would use the words ‘coinciding with’ not in the narrow meaning of ‘simultaneous’ but ‘in the wider meaning of which they are equally capable, especially in this context, as denoting death on the same occasion by the same cause.’

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Russell, LJ, one of the two majority judges said in the course of his judgement:” ‘as I have indicated, the key to his expressed intention is the context of the words ‘preceding or’ which demonstrate that ‘coinciding with’ means ‘coinciding in point of time with.’ This cannot be equated with ‘if we shall die together’ in the sense in which people are referred to as commorientes.’

It seems not unlikely therefore that the judge would have come to a different decision had the words used been those used in the instant case namely ‘in the event of her predeceasing me or us dying together.’ Mr and Mrs Raphael died of bullet wounds from the same automatic pistol in the same room at approximately the same time. I cannot believe that in using the words ‘dying together’ they meant dying at precisely the same instant of time. They obviously had in mind death in the same air crash, road accident, ship collision or similar calamity and the words are in my opinion clearly capable of including death in the circumstances, which occurred. The answer to the first question is accordingly in the affirmative, the husband and wife died together within the meaning of that phrase in their wills.

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Abdulla Rehemtulla Waljee as one of the Trustees of the charitable bequests under the will of Rehmtulla Walji Hirji, deceased v Alibhai Haji and Rajabali Hasham Paroo as the remaining two Trustees of the said charitable bequests (1943) 10 EACA 6 (Sir Norman Whitley CJ (Uganda), Mark Wilson Ag CJ (Tanganyika) and Hayden J (Kenya))

CASE No. 105

(The general intention of the testator should be gleaned from the will of the deceased, unless there are express words conveying a contrary intention) A testator left certain properties for the purpose of founding charitable trusts, expressing the hope that grants would be received from other sources to assist in setting up or maintaining the institutions contemplated in the will. Objections were raised to a proposal to set up a girls’ school with part of the funds being sourced from elsewhere. It was held that there was nothing in the will which tended to suggest that the institutions envisaged in the will were to be established and maintained with funds exclusively provided from the estate of the testator without any outside contribution.

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SIR NORMAN WHITLEY CJ: If it appeared clearly from the wording of this will that the testator’s intention and desire was that any institution established under the will should be entirely and exclusively dependent upon his charity and that no assistance from outside should be accepted it would be the clear duty of the court to hold the grants such as those contemplated from His Highness the Aga Khan could not be accepted. But I can find no such expressed intention in the will and nothing to warrant this court in reading into clauses 20 and 22 any such restrictions or limitations. It is clear from the will as a whole that the general charitable intention of the testator was that his properties should be used in such a way as to confer the greatest possible benefit upon members of his sect. In the absence of any express words indicating the contrary it seems to me unthinkable that he would if alive, have refused any contributions from outside sources, which without any way interfering with the functioning of an institution established according to his wishes, would necessarily increase its usefulness and enable a greater number of persons belonging to his sect to enjoy benefits flowing originally from his munificence. The only remaining question is whether costs of all parties should come out of the estate or whether the unsuccessful appellant should be ordered to pay to the respondents their costs of the appeal...It is not right that estates should be frittered away by protracted litigation, amongst trustees whose views may differ and applying the principles enunciated by Lord Esher (in In re Earl of Radnor’s Trusts, 45, Ch D 423) to the present case I would say that the appellant trustee was perfectly entitled to take the opinion of the Chief Justice but being absolutely protected as a trustee by the decision of the court thus obtained he appeals at his own risk, and since, in my

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opinion, there is no substance whatsoever in his grounds of appeal I would dismiss the appeal with costs. Wakf Commissioner of the Colony and Protectorate of Kenya v Alimohamed Ali Nahdi Executor of the Will of Aisha binti Shafi, Deceased (1951) 18 EACA 86 (Sir Newnham Worley VP, Lockhart-Smith JA and De Lestang J) (The function of the court is to ascertain the intention of the testatrix from the will) CASE NO. 106

A Muslim woman directed in her will that a house should be given to a mosque and its income should be spent in the interests of the mosque and the reciting of the Quran for the benefit of her soul and for the souls of her parents in perpetuity. The trustees of the mosque claimed the legacy or that it be vested in the Wakf Commissioners. The executor of the will resisted the claim. It was held that Islamic law recognises a disposition of the house and land separately, but the disposition was found to have been same ousted by the express provisions of the Land Titles Ordinance. It was further held that the disposition of the house alone was invalid and intestacy resulted.

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LOCKHART-SMITH JA: Mr Inamdar submits that, if at all these provisions of the Land Titles Ordinance are taken into consideration, and applied to the facts of this case, the necessary result is that it was incompetent to the testatrix, if such was her intention, to make a testamentary disposition of the house apart from the land on which it stands, and Mohammedan law, if it recognises such a disposition must be regarded as ousted by the express provisions of the Ordinance. In my opinion this submission correctly states the law, and must succeed. If I have understood Mr Inamdar correctly., however, he further submits that, as a house and the land on which it stands are, apart from the local exception recognised by section 20(2) (c) of the Land Titles Ordinance, one and indivisible and incapable of being the subject of separate estates or ownership, the testatrix’s disposition of the house must, and irrespective of her intention, carry with it the land on which it stands. In my view this proposition cannot be sustained. no doubt in England a devise of a ‘my house in Blackacre’ would be construed as a devise of the site of the house, as such, having regard to the legal position in England, must have been the intention of the testator. The English authorities relating to devises of houses are confined to a consideration of the question whether any land additional to the site of a house passes by such a devise. But where a Mohammedan woman, in the belief that a house and the land on which it stands may legally be held in separate ownership, makes a disposition intended to affect the house only, I cannot think that any court should so construe the will as to reach directly contrary to the testatrix’s intention.

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In such case, as me Bryson has, in my opinion, rightly submitted, the disposition is invalid, and an intestacy results in respect of the subject-matter. I would set aside the judgement and decree in the court below and substitute a declaration that the testatrix’s direction as to the whole of her house which is hired by Kapra Sura is invalid, and that there is an intestacy as regards the house and the land on which it stands, I would order that the costs of this appeal be paid out of the estate. SIR NEWNHAM WORLEY VP: In substance, if not in form, this matter was an application to the court to construe the will of the testatrix as it related to the house in suit. It may be that the construction given thereto will, as has been pointed out, affect other provisions of the will which are not before us for consideration in this appeal. The function of the court in such an application as the present is, as has often been said, to ascertain the intention of the testatrix from the will and then to see whether it can be carried into effect consistently with the rules of law: see, for example De Beauvoir (1852) 3 hl Cas 524. In the present instance, it appears from the will that it was the intention of the testatrix to make separate dispositions of the plots of land which she owned and of the houses which stood upon them and, in particular, of the house in suit land and the land upon which it stands. I agree that, even if Mohammedan law recognises such a disposition as valid, it must in the present instance, be regarded as ousted by the express provisions of the Land Titles Ordinance.The reasons which lead to this conclusion are clearly and carefully set out in the judgment of the learned Justice of Appeal and I need not repeat them here. I wish only to add this: the acceptance of Mohammedan law concerning a wakf as a valid object of a charitable bequest is one thing: but it would be quite a different thing to recognise as the subject of such a bequest, an interest or estate in land which is not recognised by the general of the Colony or Protectorate

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DE LESTANG J: I am in full agreement with the conclusion expressed that a testamentary disposition of a house apart from the land on which it stands is invalid and that Mohammedan law, if it recognises such a disposition, must be regarded as ousted by the express provisions of the Land Titles Ordinance.

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Rashida Begum v Administrator General and another (1951) 18 EACA 102 (Sir Barclay Nihill P, Sir NewnhamWorley VP and Pearson ACJ) (The ordinary natural meaning of the word ‘relation’ does not include an adopted child)

CASE NO. 107

A Muslim domiciled in Uganda made a will giving such property as he had inherited in Pakistan to the children of one whom he had described as ‘once my brother and with whom I had severed all my relations since 1936.’ The will also referred to an adopted daughter as dear to him ‘even more than my real daughter.’ There was no bequest of the residue. A day before his death he made oral statements confirming the written dispositions in his will, adding that he wished the remainder of his estate to be divided equally in three parts and given to his widows, his other relatives and charity, respectively. When the Administrator-General sought directions, it was held that the adopted daughter was not included in the words ‘other relations,’ and that the will and the oral utterances must be looked at as a whole and the brother that the deceased had renounced was excluded from the class of persons to share in the bequest of the one-third of the residue

SIR NEWNHAM WORLEY VP:In my view the learned judge correctly refused to accept the view that the testator was giving the word ‘relation’ a special sense of his own whereby he intended to include the appellant.

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At the risk of seeming platitudinous, I propose to set out the principal canons for construction of wills which seem to be relevant to this question: 1.

The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction is as follows: The intentions of the testator is collected from a consideration of the whole will taken in connexion with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention (Halsbury’s Laws of England, Hailsham edition,Volume XXXIV, paragraph 240).

2.

For the purpose of ascertaining the intention the will is read, in the first place, without reference to or regard to the consequences of any rule of law of construction.Words are given that meaning which is rendered necessary in the circumstances of the case by the context of the whole will; the particular passage concerned being taken together with whatever is relevant in the rest of the will to explain it. The will itself is taken as the dictionary from which the meaning of the words is ascertained, however inaccurate such meaning would be in ordinary legal usage. The only qualification on this application of the general principle is that a clear context is required in order to exclude the usual meaning of a word. Relative terms, and other terms needing a context to make them intelligible, can be explained by the context (ibid: paragraph 242).

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3.

The court makes any reasonable inference from a particular passage, comparing that inference with what is apparent in other parts of the will. this power of inference, however, is limited: a general intention not carried out by some appropriate words in the will itself cannot give the court the right to place the words there for the testator, a priori reasoning upon what the testator would naturally intend cannot be allowed to weigh against the proper construction of the words used (ibid: paragraph 244).

4.

It is a general rule that, subject to the foregoing rules, words are to be first read, in the case of ordinary words, in their grammatical and ordinary sense.Where the words so interpreted are sensible in reference to the surrounding circumstances, that is to say., where these circumstances do not deprive the words of all reasonable application when so interpreted, this sense of the words must be so adhered to (ibid: paragraph 246). The ordinary meaning of a word is the meaning given to it by the ordinary usage of society, that is to say, the testator’s society, of that class and period in which he lived and moved. (ibid: paragraph 249).

5.

To deprive words of their usual sense there must be sufficient to satisfy a judicial mind that they were meant to be used by the testator in some other sense, and to show what that other sense is, and the burden of proof lies on those who attribute to the words such other sense. (ibid: paragraph 246).

It must be conceded by the appellant that the ordinary meaning of the word ‘relation’ does not include an adopted child. It certainly does not when used by an Englishman or in the English common law and it was admitted by her counsel that adoption in Mohammedan law has no legal effect. I think it may be inferred from the written part of the will that the testator was himself aware of this for, although he had in fact registered the appellant as his own child, he yet refers to her as ‘an adopted daughter according to religion.’ The onus therefore, lies on the appellant to justify the special meaning of the word here contended for and she sought to do this by reliance both on the fact of registration and on the words which follow those just quoted, namely, ‘but she is dear to me even more than my real daughter.’The testator had no ‘real daughter’ so these words may fairly be read as meaning that the appellant was dearer to him than a real daughter would have been. The argument is that this passage shows that the testator considered the appellant as his own daughter and must be taken to have intended to include her when he referred to his ‘other relations’: that when he comes to deal with Plot number 84 he is not making a bequest to her of this but merely confirming a longstanding intention to ‘dedicate’ this to her, together with a house to be built thereon worth Shs 30 000; and that it is unreasonable to infer that he did not intend to include in his residuary bequest one who was so dear to him. That may be so or it may not; it is equally possible that he thought that the provision of a plot and house or Shs 30 000 was sufficient for her in her circumstances. All that seems to me to be mere speculation. There is no evidence of his intentions apart from the will and we can only look into his mind as disclosed by the words he used. It is not possible to separate entirely the consideration of the appellant’s case from that of the secondnamed respondent and much of what I shall have to say later in considering the brother’s position applies equally to the adopted daughter, in particular the obligation to consider the will as a whole and the significance of the word ‘other.’ The learned judge in the court below did, I think, put the matter very clearly when he said: ‘This girl, loved as a daughter as the testator declares, has had special provision made for her, and it does not seem to me at all probable that, having so dealt with her, the testator

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would, becoming his own dictionary, intend to include her by using the plain word ‘relations.’Yet if it was his intention cannot see that by the use of loving phrases he has expressed that intention.’ I respectfully agree and in my view, therefore, the appellant has failed to discharge the onus cast upon her and the appeal on this point fails. I think it may fairly be said that the testator himself was responsible for this litigation by the informal manner in which he elected to dispose of his not inconsiderable estate and I would therefore award all parties their costs out of the general estate. SIR BARCLAY NIHILL P:I now come to the position of the appellant. Here I also agree with the learned Vice President that the learned judge was right to exclude her from the ambit of the term ‘other relations,’ although I would do so grounds rather different to those relied on by the learned judge. Again taking the context of what was written and what was spoken together I find no difficulty in inferring beyond any doubt that when the testator used the word ‘other relations’ to Dr Kapur he had no intention of conferring some additional benefit upon his adopted daughter for whom he had already made provision. indeed it seems to me unnecessary to speculate as to whether the deceased regarded the appellant, whom he loved dearly, as a relation or not, for I would go so far as to say, that even had the appellant been his real daughter, in my opinion the context would require the interpretation that when he spoke of his ‘other relations,’ he meant and meant only relations other than his wives and those for whom he had already made provision or had expressly excluded. Anarali Museraza (as a minor by his next friend) Mohamedtaki A P Champsi v Mohamedali Nazerali Jiwa and others [1966] EA 117 (Wicks J)

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(The court should seek to discover the intention of the testator from reading through the whole will, and construe any contentious clause in relation to the provisions of the rest of the document) CASE NO. 108

A Muslim made a will disposing of property and referred in his will to the Muslim rule that he could only dispose of a third of his estate by will. He subsequently made a codicil and made a bequest to a beneficiary of a specified sum of money. The executors declined to pay the bequest under the codicil arguing that the bequest exceeded the willable one-third and was void. It was contended that the words ‘in addition to this will’ appearing in the codicil meant that in excess of the one-third. It was held that the codicil was additional to the will, and it was the intention of the testator that the bequest in the codicil was to come out of one-third willable estate.

WICKS J: Summarising, it is seen from the language of the will that the intention of the testator is:

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1.

He confirms that he is a Khoja Ithnasheri.

2.

He confirms that he is Mohammedan.

3.

He states that Mohammedan law applies to his sect, the Khoja Ithnasheri and by Mohammedan law he can dispose of by will one-third only of his estate, and proceeds to do so.

4.

Presumably by reason of the fact that there is no express provision of the law, and no judicial decision that the Mohammedan law applies to the administration of estates of the Khoja Ithnasheri, and to provide against the possible consequences of it not having been established that the Khoja Ithnasheris have abandoned their old law (under which they could lawfully dispose of the whole of their estate by will) and adopted Mohammedan law, the testator attempted to set out the disposition of by operation of Mohammedan law of his two-thirds non-willable estate.

5.

As far as the purported disposition of his two-thirds non-willable estate is concerned: (i)

Some dispositions appear to be good and the law will take its course.

(ii)

Some are contrary to Mohammedan law and have already been declared void.

(iii)

On account those dispositions whose validity are in doubt should be made subject to the direction of the court.

Having ascertained the intention of the testator from a consideration of the language of the will it is possible to make an attempt to ascertain the intention of the testator in the codicil, which is:

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‘I, the undersigned, Nazerali Jiwa, Khoja Shiah Ithnasheri, aged 60 years, before this I have made one will which is deposited in National Bank of India, Mombasa and in addition to this will I make the following addition to it: 1.

I have no private property except the shares of Sheriff Jiwa and Company Ltd, and Nyanza Oil Mills Company Ltd.

2.

I have six sons and five daughters. All these are by my only wife Koolsum. Except these I have no other wife, children or mistress.

3.

As a natural love gift I have given five per cent shares of each of the above-mentioned companies to each of my six sons.

4.

Son number 4 Ali Mussa Raza by name, I do not think this son’s behaviour is good because he had privately married with an Ismaili woman and thereafter he divorced her from Karachi through my daughter Mariambai. Money of which notice and dowry were sent through Akram, Advocate of Nairobi by a draft on National Bank of India. Thereafter this son returned from Karachi and because of his much request he was married in Zanzibar to Mehrumbai the daughter of Mohamedali Shivji Haji but it was known later that his affairs with the previously divorced woman Mumtaz still continues. Due to these circumstances, it is my demand of my trustees that if according to the Mussalman law he could be struck off from my inheritance then he should be struck off and his place his own son Anarali who was born by Mehrumbai shall be given.

5.

If according to Mussalman law my son number 4., Ali Mussa Raza cannot be struck off then from my property the trustees shall give Anar Ali Shs 50 000 in words Shillings fifty thousand for his maintenance and education. It is my recommendation that after giving Anar Ali complete education one of my remaining five sons should give him (Anarali) his daughter in marriage and keep him together in business.

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6.

My servant Karama bin Muhmuh who is Arab by caste shall be given Shs 5 000 in words shillings five thousand from my property by my trustees.

7.

Whatever ornaments my wife has were given to her since many years as gift and the ornaments are in safe deposit of the National Bank of India of Mombasa in my name. No one else has any right to these ornaments.

8.

My prayers (namaz) and fasts of 33 years are undone that my wife or sons shall have them completed from my property.’

Counsel for the respondent submits that by the words ‘in addition to this will I make the following additions to it,’ the testator attempts to make further dispositions ‘in addition’ to the one-third willable property and as this exceeds that one-third the whole codicil is void. I do not agree. Looking at the codicil as a whole I am satisfied and find that by the words ‘in addition to this will’ the testator intended that the codicil was to be read with the will and by ‘the following addition to it’ the testator intended to add to the provisions of his will. Paragraphs (1) and (2) are mere declarations. Paragraph (3) this disposition relates to the two-thirds non-willable estate and if in accordance with Mohammedan law is good, if not, it is void. Paragraph (4), this was subject to a successful application to the court for a declaration that the provision was void. Paragraph 5, this is the subject of the application. In this paragraph the testator uses the words ‘from my property.’ What does the testator mean by this phrase? Does he mean from my gross or net estate or does he mean from my one-third willable estate? Supporting the former there is para (6) of the will where the testator refers to ‘my property’ clearly in the sense of his gross estate. Supporting the latter there is para 7(e) of the will where the testator says ‘my entitlement is one-third that amount is mine,’ that is as he says ‘it is my property to dispose of as I wish by will.’ the testator’s intention as expressed in the language of the codicil appears to follow that of the will, he says ‘if by Mussalman law he could be struck off from inheritance then he should be struck off,’ that is he recognises that he cannot dispose of certain of his property by will but if by a rule of Mohammedan law his son Ali Mussa Raza can be disinherited that is to be so. The testator continues that if Ali Mussa Raza cannot in effect be deprived of his portion of the two-thirds unwillable estate ‘then from my property’ the trustees, etc. ‘My property’ in my view means the one-third willable part of the estate. that is ‘If my son Ali Mussa Raza can by a rule of Mohammedan law be deprived of his portion of the non-willable portion of the estate let that be done and his son Anarali is to take his portion, but if by the rules of Mohammedan law this cannot be attained and Ali Mussa Raza is to receive his portion of the two-thirds non-willable estate then Anarali is to have Shs 50 000 from my one-third willable estate. This I find to be the intention of the testator ascertained from the consideration of the language of the will and the codicil. ***

7.3 SPECIAL

OR TECHNICAL WORDS

Where it appears that a testator has used a special or technical word, it is permissible for the court to depart from the general principle, that words are to be interpreted or construed in their primary sense, and presume that the special or technical word is used in that special or technical sense. This principle finds expression in case number 109.

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In re Smith: Bull v Smith (1933) 1 Ch 847 (Clauson J) (Where special or technical words are used in a will, they are presumed to be used in their technical sense, unless the context clearly indicates the contrary) CASE NO. 109

A testatrix by her will devised her lands upon trusts in favour of certain relatives and their respective issue in tail – with an ultimate trust for ‘my own right heirs (except my nephew Robert John Smith and his issue).’ Her heir at common law predeceased her, but she was survived by the son of her common law heir. The words ‘my own right heirs’ were construed by the court to mean her heirs at common law and not her customary heirs, and the lands so devised were accordingly unaffected.

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CLAUSON J: Having regard to the tenure of the lands so devised, which at the date when the testatrix made her will was copyhold, descendible according to the custom of the borough-English. I pause here to consider what is the meaning of the expression in the will of ‘my own right heirs.’ Do the words mean her heirs according to the custom of the manor or her heir at common law? The answer to that question is to be found in a decision by Fry J in Garland v Beverley (9 Ch D 213), that under a devise of customary land, gavelkind land, or borough-English land to the testator’s right heirs, his heir at common law is entitled. But then the trust continues with these additional words: ‘other than and except my nephew Robert John Smith and his issue.’ Now had Robert John Smith not predeceased the testatrix, he would have been her heir at law; but as he in fact predeceased her, her heir at law was the eldest son of Robert John Smith – namely, the defendant John Robert Smith. If I were at liberty to construe the words of the limitation in question without reference to the decided cases, I should be tempted to decide that the effect of the words was to give the lands to such person as would be the testatrix’s heir at law if Robert John Smith and his issue had been wiped out of the family’s pedigree. But I am precluded from so deciding by the decision of the House of Lords in Goodtitle d Bailey v Pugh (3 Bro PC 454). In that case, the devise was to ‘the right heirs of me, the testator, for ever, my son excepted, it being my will he shall have no part in my estate either real or personal.’ The testator left one son and three daughters. In an action of ejectment in the Court of King’s Bench, the daughters contended that they must be the personae designatae, because the son who was the proper heir was plainly and manifestly excluded, not only by the intention but by the express words; and that court decided upon the proper construction of the words used, the devise was to persons who would be the testator’s right heirs, if the son were excluded from the pedigree. but there was a possible alternative construction, namely, that the devise was to the son – who was in fact the testator’s heir at law – followed by words which took the property away from him, with the result that no person took the property under the devise and that accordingly no effect whatever could be given

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to it. And that was the construction which the House of Lords put upon the words when the case came before it upon a writ of error, and the House so decided. I thought I might be able to find some sufficiently material distinction between the words used by the testatrix and the words in Goodtitle d Bailey v Pugh, but I can find none. Therefore I feel compelled to follow the decision of the House of Lords in that case, and hold that (having regard to the fact that the testatrix’s right heir in whose favour the devise was made was the eldest son of Robert John Smith, who and whose issue she in the same sentence excluded) the devise must be treated as having no effect whatever. Accordingly, the lands over which the testatrix had the power of appointment (including the investments representing the proceeds of sale of such lands as have been sold) being the trusts of the settlements to the testatrix absolutely and, being (in the events which happened) undisposed by the devise and bequest of the testatrix’s residuary estate, passed to her heir at law, who is the defendant Robert John Smith. ***

7.4 THE DICTIONARY PRINCIPLE Where the testator appears to have set up his own dictionary, and to have used words in a special sense of his own, the court should construe the words in that special sense given to them by the testator, as illustrated in case number 110. In re Helliwell: Pickles v Helliwell (1918) 2 Ch 580 (Sargant J)

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(The court will apply the dictionary principle where the testator appears to have set up his own dictionary in the will by defining the words he uses in his will in a particular way of his own)

CASE NO. 110

The testator directed the trustees of his estate to pay certain legacies to certain defined persons, among them being his nephews and a niece. In one part of his will he gave property to his ‘nephews’ and in another part he provided that his illegitimate nephew by his illegitimate sister was to participate ‘equally with my other nephews.’ The trustees brought an originating summons for the determination of the question whether, on the true construction of the will, the illegitimate nephews were to take equally with the legitimate ones. It was held the testator had used the word ‘nephew’ in a sense that was wider than normal.

SARGANT J: The question now is whether there are included amongst the class to take only the two persons expressly included, namely, the illegitimate son of the testator’s legitimate brother and the illegitimate son of the testator’s natural sister Mary, but also the legitimate descendants of the testator’s natural sister Sarah.

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Now, on looking carefully at the special words of her inclusion her, it is, I think, fairly clear that the testator is intending in the case of John Rushworth Feather, as in the case of William Henry Hey, to cure the disqualification due to an individual illegitimacy, and is not directing his mind to any disqualification due to the illegitimacy, in the former case, of the legatee’s parent. The illegitimacy of Mary, as well as of Sarah, was an old story which had been kept in the background during the whole of the testator’s life, though he was no doubt aware of it. And it seems to me that he deliberately ignores it in this clause of his will, and speaks of Mary Wright as his sister in as a full sense as that in which he speaks of John Helliwell as his brother. Further, by directing that the two named persons John Rushworth Feather and William Henry Hey, shall take with his other nephews and nieces, he impliedly recognises them as included in his view as members of the class of nephews and nieces. Accordingly he is obviously using both the word ‘sister’ in relation to the parent of a nephew, and the word ‘nephew’ itself, in a sense going beyond the strict legal meaning of the word, and as including in the word ‘sister’ a natural sister, and in the case of the word ‘nephew’ a son of a natural sister. Were the question here whether the legitimate children of Mary Wright formed members of a class to take, there could be but little doubt that it should be answered in the affirmative. And when once the words ‘sister’ and ‘nephew’ are shown to be used in a wider or looser sense than their strict legal meaning, it is difficult to limit them to one of the two natural sisters and her children only, quite apart from the antecedent improbability that the testator here should be intending to include the illegitimate child of Mary while excluding the legitimate children of Sarah. The fact that the latter are not expressly mentioned may well be explained by the view I have adopted that the testator was only expressly attempting to cure personal illegitimacy. In fine, the case seems to me within Hill v Crook (LR 6 HL 265) rather than within Dorin v Dorin (LR 7 HL 568), because there is here in the will itself a context which shows that the testator is not using the words describing the class to take in their strict legal meaning, and it therefore becomes proper to consider, with the help of all the surrounding circumstances, what is the special sense in which he is using the words. And the cases of In re Jodrell ((1890) 44 Ch D 590; (1891) AC 304) and In re Corsellis ((1904) 2 Ch 316) both tend to support the conclusion to which I have come, as tending to show that by treating or naming definite individuals as relations who are not strictly such, and by thereby indicating that he is using a word of relationship in a wider or looser sense than its strict sense, a testator may include in a general gift to relations of that class not merely the specially named individuals, but other persons who are in a corresponding position. ***

7.5 ASCERTAINMENT GIFTS

OF

BENEFICIARIES

AND THE

SUBJECT MATTER

OF

Often the court will be called upon to ascertain from the terms of the will who the beneficiaries of certain gifts are and what the subject matter of some gifts is. The rules governing the ascertainment of gifts and beneficiaries is paragraph 3 of the First Schedule to the Law of Succession Act. Cases numbers 111 to 115 deal with this subject.

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In the Matter of the Estate of Ivo Murray Murton, Deceased, In the Matter of the Will of the said Deceased, and In the Matter of the Trustee Ordinance, 1929. (1938) 18(1) KLR 65 (Sir Joseph Sheridan CJ)

CASE NO. 111

(A will speaks from the date of death and where a testator directs that the property be held in trust for a minor and until the minor attained a certain age, the minor has a vested interest until the testator’s death and is entitled to an immediate conveyance and transfer upon attaining the age. Where the property is given concurrently to several persons whether those persons take as joint tenants or tenants in common depends on the context of entire will.) The testator disposed of his real and personal residuary estate to trustees for the benefit of the defendants. The court was asked by the trustee to give directions regarding the construction of certain clauses of the will. It was held that certain beneficiaries were to take as joint tenants, certain beneficiaries were trustees under the terms of the wills and that some beneficiaries took a vested interest in the property upon the testator’s death.

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SIR JOSEPH SHERIDAN CJ: Arising out of the construction of certain terms in the will of one Ivo Murray Murton different questions have been submitted to the court for determination. The first question is whether the trust of one-half of the net annual income of the residuary estate after the death or marriage of the first defendant (Mrs Elizabeth Murton) (declared by clause 4(d) of the said will) would after death of either of the third defendants ensure wholly for the benefit of the other of them or would in such event become a trust of one-quarter only of such net annual income for such other of them. Clause 4(d) of the will reads: ‘upon trust to pay annually to my wife Elizabeth Murton so long as she remains unmarried one half of the net annual income of my estate . In the event of the marriage or death of my said wife I direct my trustees to apply the said one-half net annual income for the benefit of my daughters Gillian and Judith.’

Shortly the question I have to determine here is whether in the events stated the daughters would take as joint tenants or as tenants in common. In 28 Halsbury’s Laws of England, page 789, paragraph 1422, it is stated: ‘Where property is given to several persons concurrently the question whether these persons take as joint tenants or tenants in common depends on the context of the whole will; they prima facie take as joint tenants.’

The context of the relevant portion of the will in this case clearly points to their taking as joint tenants.There is nothing to suggest a tenancy in common. I accordingly decide on this first point that the daughters would take as joint tenants.

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The next question I am asked to answer is whether the trust of the residuary estate and the income thereof for the second defendant Murray Murton until attaining the age of twenty-five (declared by clause 4(f) of the said will) is or is not subject to the trusts of one-half of the net annual income of the residuary estate in favour of the first defendant and third defendants (declared by clause 4(d) of the said will).The answer to this question turns upon the construction to be placed upon clause 4(e) of the will which states: Subject to clause 4, sub clause (d) hereof, and the provisions contained therein upon trust to apply the income derived from my estate or so much as my trustees may deem desirable for the maintenance and education and benefit of my said son Murray Murton at such school or schools as my trustees may approve and thereafter at Cambridge University if my son should so wish and funds are available.’

The answer to the question here raised is yes. The meaning of clause 4(e) appears to me to be perfectly clear. The next and third question is whether the combined effect of paragraphs (f) and (g) of clause 4 of the said will and/or of any other provision therein contained is or is not to constitute the second defendant as a sole trustee of the residuary estate with the consequent obligation on the plaintiff (the executor and trustee of the will) to transfer the same to the second defendant as such trustee if and when the second defendant attains the age of twenty-five years.

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Clause 4(f) and (g) of the will respectively read: ‘(f)

my trustees shall stand possessed of my said property and the income thereof on trust for my said son Murray Murton until he attains the age of twenty-five with power to my trustees in their discretion to any part of the capital of the said property for the advancement of my said son during the subsistence of this trust as they may think fit.’

‘(g)

I hereby direct that my said son on attaining the age of twenty-five years shall stand possessed of my property and the income thereof one-half of such income unto my said wife and daughters pursuant to the terms and conditions contained in clause 4, sub clause (d) hereof and shall hold the capital and residue of the income of my said property upon trust for himself and I hereby further declare that my said son shall have full and unfettered power without being responsible for lost or alterations in investments and shall be at liberty to invest the capital moneys in any investment as in his uncontrolled opinion he shall think fit and shall have power of retaining any investment in its then present form.’

Here again I find the answer to be yes. The next question I am asked is whether the beneficial interest of the second defendant in the capital of the residuary estate (under clause 4(f) and (g) of the said will) vests in him at any time or age before his attaining the age of twenty-five years, and if so, at what time and age.The answer to this question in my opinion must be yes and in saying so I am fortified by the decision of Ashbury J in the case of In Re Ussher, Foster v Ussher (1922) 2 Ch page 321. For all practical purposes, the terms of the will under consideration in that case were similar to the terms of the will I the present case, and as the head note states: ‘it was held following Fox v Fox (1875) LR 19 Eq 286, 290 and In Re Williams (1907) 1 Ch 180, 183., which in a court of first instance are binding authorities that the defendant Ussher took a vested interest at the testatrix’s death and on attaining twenty-one was entitled to an immediate conveyance and transfer.;’

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So I hold that the minor Murray Murton on reaching the age of twenty-one years is entitled to have conveyed to him the property which he has been bequeathed under the will to which I have already referred. in other words I hold that the minor Murray Murton’s interest is a vested interest vesting from the date of the testator’s death subject to being divested as provided for in sub clause 4(h) of the will if the minor Murray Murton fails to attain the age of twenty-one. The next and final question I am asked to decide at this stage is whether the beneficial interest of the second defendant in the proceeds of the life insurance policy (under clause 5 of the said will) vests in him at any time or age before his attaining the age of twenty-five years and if so at what time and age. It seems to me that the true construction of the will read as a whole is that this also is a vested interest to which the second defendant is entitled on his reaching the age of twenty-one years and I say so on the authority to which I have already referred, the case of In Re Ussher (supra), and I am reinforced in this view by the concluding words of clause 5 which confer upon the trustees during the minority of the second defendant the power ‘of applying any parts of the capital moneys and or interest arising therefrom in the advancement and education of my son.’ Costs as between solicitors and client of the parties will be payable out of the estate. the originating summons will stand over generally with liberty to apply. In re Blackwell: Blackwell v Blackwell (1926) 1 Ch 223 (Pollock MR, Warrington and Sargant LJJ)

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(A will speaks from the date of death, and where a testator directs that property be held upon trust until a minor beneficiary attains majority, the minor takes a vested or contingent interest in the property at the testator’s death)

CASE NO. 112

The appeal arose out a decision on a summons seeking a determination as to whether a son took a vested or contingent interest in a specifically devised real estate. The deceased had, in his will, devised his real estate upon his wife during widowhood, upon trust for the eldest of his sons (if any) ‘who shall be living at the time of my death absolutely upon his attaining the age of twenty-one years,’ and failing such son, the same should be held upon trusts concerning his residuary estate. He died, leaving a son and daughters. It was held that the son, upon the testator’s death became entitled to the real estate contingently on his attaining the age of twenty-one years, and also took a like interest in the accumulations of rents and profits from the real estate.

POLLOCK MR:We have therefore to decide whether or not the words ‘for the eldest of my sons (if any) who shall be living at the time of my death absolutely upon his attaining the age of twenty-one years’ give a vested or contingent interest to the son,. As a matter of fact there was not more than one son, the other three children were

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daughters; but the possibility is indicated that there might have been several sons, some of whom might not be living at the death of the testator. It might be that a son secondly or thirdly born to him might become the eldest son for the purpose of this trust. Now dealing first with Boraston’s Case (3 Rep 19a, 21b), it is clear that in using words which apparently are words of time you may find that instead of being words of time they are words of contingency, or you may find that words of contingency are words of time. It is there stated: ‘So that these adverbs (then and when) in our case, are demonstrations of the time, when the remainder to Hugh shall take effect in possession, as in the said cases of a lease for life, and lease for years, and not when the remainder shall vest.’ Mr Beebee says that these words of time inserted in the present case are words which have merely the effect of postponing the time when the possession shall be taken by the son, and are not words of contingency. I do not propose to go through the cases which have been cited, or again to refer to the views stated in and cited from Mr Hawkins’s book on Wills. It is sufficient for my purpose to say that I agree with the reasoning of Tomlin J and the conclusion which he has reached.

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It appears to me that Tomlin J has rightly construed this sentence as ‘for the eldest of my sons (if any) who shall be living at the time of my death’ and then ‘absolutely upon his attaining the age of twenty-one years.’ The effect of the construction for which Mr Beebee contends would be, I think, to rule out the word ‘absolutely,’ and to alter that sentence in a manner which is not justifiable. I can follow the argument that the word ‘absolutely’ is not to be taken as meaning absolutely when you have regard to the rules under which you are bound, if possible - I will put it as high as that – to hold that there is an immediate vesting, and that one ought to decide in favour of the vesting unless there is a condition precedent to the vesting so clearly expressed that the courts cannot treat the gift as vested without deciding in direct opposition to the terms of the will. WARRINGTON LJ: I am of the same opinion. the question to be determined is whether on the true construction of the will of the testator the gift of a certain real estate to the testator’s son is a vested or contingent gift, contingent, if it be so, on the son attaining the age of twenty-one years...The question in my opinion, and in this I agree with Tomlin J, is unfettered by any general rule, and the task of the court is to determine whether on the terms of the whole will fairly read the estate is vested or contingent. I say advisedly that we are unfettered by any general rule, but of course from that I except those rules which apply to all questions of construction, such as, for example, that words are to have their natural meaning unless there be a context which shows that they bear a different meaning. i think i may also refer to another rule as in the same category: That the court is inclined rather to hold an estate to be vested than contingent if the words of the will will allow it to do so. Now two rules of the other and more special class are suggested as binding the court in this case. ..The gift in the will to the son in this case is an immediate gift, subject only to this, that as regards a part of it the gift cannot be enjoyed to the full until the death or second marriage of the testator’s wife,, because under a previous direction she is to enjoy the right to occupy the testator’s residence and a certain limited area of land belonging thereto so long as she remains his widow.

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SARGANT LJ: I am of the same opinion. There can be no doubt that the gift to the oldest son upon his attaining the age of twenty-one years, taken simpliciter, is not only a future gift but contingent gift; but there are, as was shown in Phipps v Ackers [15581774] All ER Rep 381, HL, two well known classes of cases in which a gift, prima facie contingent, may be turned into a vested gift. The first is the case where there is some intermediate gift, so that the words of futurity may be explained as being words of futurity only as in remainder; and the second is where there is a gift over, if the primary beneficiary does not attain the age of twenty-one years. As regards the life interest that is given to the wife in a part of the hereditaments devised to the eldest son, it is noticeable that not only is that a part only, but in the gift to the eldest son there is a direct gift with immediate words, followed by the words: ‘including after the death or remarriage of my said wife my said house and grounds and the land surrounding the same,’ that is to say, the property with regard to which she was given the right of residence or letting during her widowhood. And it seems to me that that portion of the estate is treated rather as a less important part, as an accessory, and that the real substance of the gift is the gift of the whole in possession to the son, but subject as to a part only, and what is contemplated apparently as a minor part, to the right of the wife to occupy. In the matter of the estate WJ Bellasis, deceased [1919-21] 8 EALR 142 (Barth CJ)

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CASE NO. 113

(A bequest to husband and wife with their family means a bequest of the life interest to the husband and wife with the remaining interest to all their children) A soldier left a will bequeathing his share of a certain property to his brother, the brother’s wife and ‘their family.’ It was held that a bequest to a husband and wife and their family must be construed as giving a life interest to the husband and wife with the remaining interest to all the children of the marriage.

BARTH CJ: In this case I am asked to interpret a clause in a will made on active service on the eve of an action by the testator. The clause is ‘My quarter share of the Doondu plantation to be handed over to my brother Henry, Dollie and their family.’ The will was made far from legal advice and is in ordinary colloquial language. Three possible interpretations have been suggested: 1.

That the testator intended a gift absolutely to his brother and his wife.

2.

That the brother, his wife and children born at the date of the deceased’s death take in equal shares and

3.

That the brother and wife take a life interest with remainder to all the children whether born before or subsequently to the death of the deceased.

In my opinion some meaning must be attached to the words ‘and their family’ and I find that the testator’s intention was to give his brother’s wife and immediate life

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interest in the testator’s share of the plantation and to give any children of the marriage the remainder whether such children were born before or after the decease of the testator. It is in my opinion incredible that the testator should have contemplated an estate tail. Costs to come out of the estate. Latif Suleman Mohamed v KJ Pandya and others [1963] EA 416 (Sir Ronald Sinclair P, Sir Trevor Gould Ag VP and Newbold JA) (Where property given under the terms of a will is to take effect upon the determination of a life interest, the time for the distribution of such property is determined by the date of the termination of the life interest)

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CASE NO. 114

A testator left a will bequeathing two leasehold properties to his trustees upon trust to pay net rents and profits of the properties to his wife and daughter, respectively, and upon their respective deaths the properties were to go to his four sons, ‘or the survivors or survivor of them, if more than one, in equal shares.’ All the beneficiaries survived the testator, and on the death of the daughter, three sons were living, and on the death of the widow, two sons were living. The executor took out an originating summons on the questions: who was entitled to the property, in what shares and how the same was to be divided. The court directed that the gifts to the sons were meant to take effect ‘after the death’ of the widow and daughter, respectively, and it followed that the dates of death determined the time of distribution. The three sons who were alive at the daughter’s death took in equal shares the property over which she had a life interest; while the two sons who were alive at the death of the widow took in equal shares the property over which she had a life interest.

SIR TREVOR GOULD Ag VP: The will after the bequest of the two leasehold plots to the trustees reads, so far as it is relevant: ‘upon trust that my trustees shall be and out of the rents and profits thereof pay the respective rents reserved by the said respective leases and all other necessary outgoings in respect thereof and the expenses of keeping the buildings erected on the said two plots of land insured and in good repair and otherwise performing the covenants of the said respective leases and upon further trust that my trustees shall pay the net rents and profits of the said plot number 734/1 to my wife Jijabai during her life and the net rents and profits of the said plot number 734/2 to my daughter Rabia, widow of Saleh Mohamed during her life and after the death of my said wife to stand possessed of the said plot number 734/1 in trust for my four sons the said Suleman Mohamed, Hussein Mohamed and Hassam Mohamed and the said Ali Mohamed or survivors or survivor of them, if more than in equal shares and after the death of my said daughter Rabia to stand possessed of the said plot number 734/2 in trust for my said four

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sons or the survivors or survivor of them, if more than in equal shares I devise and bequeath all the residue of my estate and effects whatsoever and wheresoever both real and personal to which I may be entitled or which I may have power to dispose of at my decease including my one-fifth share and interest as senior partner in the firm of Mohamed Moti and Sons unto and to the use of my said four sons or the survivors or survivor of them, their respective heirs executors and administrators absolutely if more than one in equal shares...’

It was common ground between counsel that they use of the word ‘of ’ in two places in that passage, preceding the phrases ‘the survivors’ is a manifest error and that there is no alternative but to read it as ‘or’: also that the word ‘one’ must be read into the text before ‘in equal shares’ in the gift over Plot 734/1. I agree. Under English law the authorities governing this question are clear the position is set out in Halsbury’s Laws of England (3 ed),Volume 39, pages 1047-1048, paragraph 1569, which reads: ‘1569. ASCERTAINMENT OF SURVIVORS AT DATE OF DISTRIBUTION. In cases where there is a gift to a number of persons and the survivors or survivor of them, or with benefit of survivorship, or in like words, or where there is a postponed gift to persons ‘surviving,’ the survivorship is, in default of any expressed intention of the testator, prima facie referred to the period of distribution.Thus, the time in question where the gift is immediate, is the death of the testator, and where the gift is postponed to a life estate, is the death of the tenant for life or death of the testator, whichever last happens; and this applies whether the gift is of real or of personal estate.’

The court was referred to Re Douglas’s Will Trusts (1), [1959] 2 All ER 620, in which a testator had given his real estate and the residue of his personal estate to his trustees on trust… to pay the income to his widow, and from and after her death or second marriage he gave his said estate and effects

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‘To my sisters Jane...Elizabeth ...and Sarah...or the survivor or survivors of them.’

The three sisters survived the testator and predeceased the widow. It was held that there was an intestacy as to that part of the estate. it may be noticed in passing that in that case, as in the present one, the gift for life was made through trustees and not directly ; that does not appear to affect the position - see Haig v Swiney (2)(1823), 1 Sim and St… 487; 57 ER 193. The learned judge in Re Douglas’s Will Trusts (1) followed the leading case of Cripps v Wolcott (3) (1819), 4 Madd 11; 56 ER 613, in which the judgement of the Vice Chancellor reads: ‘It would be difficult to reconcile every case upon this subject. I consider it, however, to be now settled, that if a legacy be given to two or more, equally to be divided between them, or to the survivors or survivor of them, and there be no special intent to be found in the will, that the survivorship is to be referred to the period of division. ‘If there be no previous intent given in the legacy, then the period of division is the death of the testator, and the survivors at his death will take the whole legacy. This was the case in Stringer v Phillips (1 Eq Cas Abr 292; 21 ER 1053). ‘But if a previous life-estate be given, then the period of division ids the death of the tenant for life, and the survivors at such death will take the whole legacy.This is the principle of the cited cases of Russell v Long (4 Ves 551; 31 ER 283), Daniell v Daniell (6 Ves 297; 31 ER 1060), and Jenour v Jenour (10 Ves 562; 52 ER 963) ‘In Bindon v Lord Suffolk (1 P Wms 96; 1 Bro Parl Cas 189), the House of Lords found a special intent in the will that the division should be suspended until the debts were recovered

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from the Crown; and they referred the survivorship to that period.The two cases of Roebuck v Dean (2 Ves 265; 30 ER 970), before Lord Rosslyn, do not square with the other authorities. ‘Here there being no special intent to be found in the will, in the terms of survivorship are to be referred to the death of the husband, who took a previous life-estate.’

That case seems to me to conclude the matter, provided English law is applicable; the gifts to the sons or the survivor or survivors of them in the will which I am now considering are directed to take ‘effect after the death’ of the widow and daughter respectively, and those dates clearly govern the time of the distribution . It can make no difference, as I think was suggested in argument, that the widow and daughter were entitled only to the income of the households after payment of the expenses and outgoings. That is a perfectly normal provision and can do nothing to accelerate the dates for distribution, which are at the determination of the respective interests of Rabia and Jijabai, whatever they may be. I think with respect, that the view of the learned judge that the words of survivorship in relation to the gift over and to the residuary bequest should be taken to refer to the same point of time, is not justified. The provision in the will as to each gift are distinct and I find nothing in the wording to suggest that the usual construction, which I have referred to above, should not be put upon each. I did not understand any of the counsel appearing for the respondents to dispute that the position under English law was as I have stated it, but counsel for the executor, and counsel for the third and fourth respondents submitted that the position under the Indian Succession Act, 1865, is different. They relied in particular upon section 106, which reads:

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‘106. Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the will, become vested in the legatee on the testator’s death, and shall pass to the legatee’s representatives if he dies before that time and without having received the legacy. And in such cases the legacy is from the testator’s death said to be vested in interest.’

The argument that this section is applicable is, in my opinion, misconceived. It is expressed to be subject to any contrary intention which appears in the will, and, as I see it, merely states the English law. If the gift in the will in the present case had been to the four sons without more, after the life interests, and the sons had survived the testator, this section would have applied and the gift would have vested upon the testator’s death. But the gift was to the sons or the survivor or survivors, which expresses a contrary intention and brings the case within section 112, which reads: ‘112. Where a bequest is made to such of certain persons as shall be surviving at some period, but the exact period is not specified, the legacy shall go to such of them as shall be alive at the time of payment or distribution unless a contrary intention appear by the will.’

The illustrations to this section make it abundantly clear that it is designed to bring in the rule in Cripps v Wolcott (3) which is cited among the illustrations to the section in the Indian Succession Act by Majumdar (1924), as is Hearn v Baker (4) (1856), 2 K and J 383; 69 ER 831, which followed the decision on Cripps v Wolcott (3) and is distinguishable in its circumstances form those of the present case.

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For those reasons, though with some reluctance, I would allow the appeal and hold that Hassam, the legal representative of the estate of Suleman and the legal representative of the estate of Hussein are entitled to equal shares in the leasehold of Plot number 734/2, and that Hassam and the legal representative of the estate of Suleman are entitled to share leasehold Plot number 734/1 equally between them. Accumulated income of the leasehold other than that apportioned to the life tenants’ estates would be divisible in the same way. I would direct that the order of the learned judge be amended accordingly.

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There remains the question of costs. The court was referred to Re Stuart, Johnson v Williams (5), [1940] 4 All ER 80, and Re Gillson (deceased), Ellis v Leader (6), [1948] 2 All ER 990, on the question of costs in the Court of Appeal in cases relating to construction of wills. Before this court appeared Mr D N Khanna (with him Mr Winayak) for the appellant, who is a member of Suleman’s family, Mr Trivedi for the executor (trustee), Mr VV Patel for the surviving son Hassam, Mr Bhailal Patel for the representative of the estate of Hussein, Mr JJ Patel for the representative of the estate of Ali, and Mr Nene for another son of Suleman. The appeal was contested by Mr Bhailal Patel and Mr JJ Patel whose clients would both suffer if the appeal succeeded. Mr VV Patel and Mr Nene, whose clients would profit by the success of the appeal, contributed nothing of value to the argument; their interests were at one with that of the appellant. Applying, as well as I may, the principles that govern such cases, I would order that the appellant’s taxed costs be paid from the estate (but not certified for two counsel), that the costs of the executor (trustee) be taxed and paid from the estate, and that the third and fourth respondents should have between them one set of taxed costs from the estate. I would make no order for the costs of any other party. As to the costs of the cross-appeal it has been held that a trustee who appeals to the Court of Appeal does so usually at his own risk as to costs – Re Earl of Radnor’s Will Trusts (7) (1890), 45 Ch D 402, where it is indicated that the trustee being unsuccessful will be ordered to pay costs personally. It is difficult to understand in the present case why the executor departed from a position of neutrality in respect of the costs order and prima facie he should bear the costs of the cross-appeal. Mr Trivedi, however, who appeared for the executor made a statement from the bar that he had the concurrence of all parties other than the Suleman family in taking the action he did. If that is the case the advocates concerned should have so stated before withdrawing, and Mr. Trivedi would have been wise to have obtained an indemnity as to costs from them. Nevertheless, I feel that the statement from the bar should be accepted and the executor not made personally liable for the costs of the respondent on the crossappeal. I would order that the taxed costs of the respondent on the cross-appeal (that is Latif Suleman Mohamed) be paid from the estate, and that there be no order for costs of the executor on cross-appeal, and that there be no order for the costs of any of the other parties.

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Rustomji Kersasji Khursedji Sidhwa v Dinshaw Ruttonji Mehta and others (1934) 1 EACA 38 (Abrahams CJ AgP, Lucie-Smith AgCJ and Horne J) (A gift made to a class of beneficiaries could fail on grounds of remoteness)

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CASE NO. 115

The testator made a will, which contained a direction that a trust deed be prepared of a plot of land in Nairobi with a building on it. The executors of the will were also the trustees. They were to sell the building only if it could realise more than 30 000 rupees or more. Out of the rent of the building, if it were not sold, or out of the interest on the proceeds, if it were sold, certain liabilities were to be settled.The balance was to be shared equally between the son and the nephew of the deceased, respectively, and the latter was directed to perform certain religious ceremonies. There was a further provision that the children of the son and the nephew were entitled to the tail in the event of the death of the two. The son took out an originating summons stating that the gifts to his children and to the nephew’s children were void for offending the provisions of the Indian Succession Act, 1865, and that he was entitled absolutely to his half-share of the plot. The High Court found in favour of the children. On appeal it was held that that the gifts to the children of the son and nephew were void for contravening the Indian Succession Act, 1865. They were gifts of income only, as they followed upon a prior gift, to classes of persons some of whom were born after the testator’s death.

ABRAHAMS CJ Ag P: Section 100 (of the Indian Succession Act, 1865) is as follows: ‘When a bequest is made to a person not in existence at the time of the testator’s death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.’ Section 102 is as follows: ‘If a bequest is made to a class of persons, with regard to some of whom it is inoperative by reason of the rules contained in the two last preceding sections, or either of them, such bequest shall be wholly void.’ It would seem from these two sections that if the expression ‘the children of Rustomji’ embraces both those children who were living at the testator’s death and those born subsequent thereto, the gift to the children of Rustomji, being a life interest, only, must totally fail. Similarly, with regard to the children of Mobed, unless the argument on the cross-appeal that the gift to them is a gift of capital succeeds.

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Now, is the gift to the children of Rustomji (and the same consideration applies to the gift to the children of Mobed) a gift to a class? In Pearks v Moseley (1880), 5 Appeal Cases, page 714, Lord Selborne said at page 723: ‘A gift is said to be to a ‘class’ of persons when it is to all those who shall come within a certain category or description defined by a general or collective formula, and who, if they take at all, are to take one divisible subject in certain proportionate shares’ It being them ascertained that these gifts are class gifts, the next question is whether the ‘class’ includes as well those born after the death of the testator as those living at that time. Here the exception appended to section 98 of the Succession Act is in point. This reads as follows: ‘If property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual, but their possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise, the property shall at that time go to such of them as shall be alive...’This rule of construction is conformable to the English rule as expressed in Jarman on Wills, (7 ed), Volume III 1642: ‘Where a particular estate or interest is carved out with a gift over to the children of the person taking that interest or the children of any other person, such gift will embrace not only the objects living at the death of the testator, but all who subsequently come into existence before the period of distribution.’ I am therefore of the opinion that the gift to Rustomji’s children fails.

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As to the gift to Mobed’s children, Mr Schwartze refers to the fact that it is made to them without the qualification attaching to the gift to Rustomji’s children. Moreover, it comes first, and the words ‘his share shall be paid to his children’ ought to be interpreted to confer a gift of capital and income. At first sight, this submission is attractive, but if one looks a little closer and inquires what share Mobed actually had, the answer appears to be a half-share of the net income. Our attention has also been directed to section 73 of the Succession Act, which says that if the same words occur in different parts of the same will, they must be taken to have been used everywhere in the same sense, unless there appears to be an intention to the contrary. I have no doubt that the testator meant what the learned Chief Justice decided that he meant, and it would be extremely unlikely that he would favour his nephew’s children beyond his son’s children. I am therefore of the opinion that the gift to Mobed’s children also fails, and I would allow the appeal and dismiss the cross-appeal. As to costs, I am of the opinion that, as this appeal related to one piece of property only, that property should bear the costs here and in the court below.The cases of Farrow v Austin, 18 Ch Div page 58, and In re Buchton (1907) 2 Ch page 406, are sufficiently close to guide us. I would make a similar order in respect of costs of the cross-appeal.

PART THREE INTESTACY

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Intestate Succession refers to the devolution of property where the deceased has not left a valid will. Property in such circumstances passes under the rules of intestacy. This part contains cases on the rules of intestacy. They cover a variety of aspects. The first group of cases are on the exemption of intestacy rules in Part V of the Law of Succession Act and the imposition of the law and custom of the community from which the deceased came. The rest cover the devolution in intestacy where the deceased was a monogamist or polygamist, where he was survived by a widow without children, where he is survived by children only, the rights of a daughter, devolution where the deceased is not survived by a spouse or children and the devolution to the state.

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CHAPTER 8 INTESTATE SUCCESSION 8.1 INTRODUCTION Intestacy occurs where a person dies without leaving a will.There could also be partial intestacy where there is a will which disposes only a part of the deceased’s estate. The relevant portion of the Law of Succession Act dealing with intestacy is Part V.

8.2 CUSTOMARY LAW

AND

PART

V OF THE

LAW

OF

SUCCESSION ACT

The intestacy provisions stated in Part V of the Law of Succession Act do not apply universally to every resident of Kenya dying intestate. Section 32 of the Act allows exception of Part V of the Act to certain classes of property, and section 33 of the Act applies customary law to property exempted from Part V by section 32 of the Act. Cases numbers 15, 116, 118, 119 and 120 deal with the application of Part V of the Act to an African intestate’s estate, and the circumstances under which customary law would apply to such an estate. Case number 117 does not dwell on Part V of the Act, but applies customary law to the estate of an intestate dying after the Act had come into force. The court ought to have analysed the provisions of the Act before holding that the law applying to the estate was customary law. Section 32 provides:

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‘The provisions of this Part shall not apply to: (a)

Agricultural land and crops thereon; or

(b)

Livestock,

Situated in such areas as the Minister may, by notice in the Gazette, specify.’ Section 33 states: ‘The law applicable to the distribution on intestacy of the categories of property specified in section 32 shall be the law or custom applicable to the deceased’s community or tribe, as the case may be.’

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In the Matter of the Estate of Benson Kagunda Ngururi (Deceased) Nakuru High Court succession cause number 341 of 1993 (Ondeyo J)

CASE NO. 116

(Property in those areas in Kenya which are not listed in Gazette Notice number 94 of 1981 is not subject to the customaty law of succession but to Part V of the Law of Succession Act. Where the deceased is a polygamist and his estate is not exempted from the provisions of Part V of the Law of Succession Act, the estate ought to be distributed according to section 40 of the Law of Succession Act)

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The parties were unable to agree on the distribution of some assets and asked the court to resolve the matter.After taking evidence the court held that since the deceased died after the Law of Succession Act came into force, the applicable law is Part V of the Law of Succession Act. It was forthwith held that property in Nakuru District was not exempt from Part V of the Law of Succession Act, and therefore the estate was to be distributed in accordance with section 40 of the Law of Succession Act since the deceased was a polygamist. ONDEYO J: From the testimony of DW1, DW2 and PW1, assuming that they were talking about the same incident, it is not clear to me what the contents of the alleged oral will were. Of course PW1 and PW2 deny that there was an oral will. DW2 did not say how much the deceased said should go to each of the children of the deceased and how much was to go to the widows. Many people are alleged to have been present at the time of the alleged oral will but only one (DW2) testified. It is not known if clarification could have been received from an independent and neutral witness, who had been present, had been called. Under section 9(1) (a) of the Act, no oral will shall be valid unless it is made before two or more competent witnesses. Had an independent witness testified from the many who were alleged to have been present, perhaps his testimony could have clarified what exactly the deceased is alleged to have said in the alleged oral will.What I can make out from the case of the two widows is that it was the wish of the deceased person. that all his daughters, whatever their marital status, should, get a portion of the land in dispute. It is indeed the testimony of PW1 that all daughters of the deceased got a share of the suit land. All the daughters of the deceased are therefore entitled to inherit the land. As the testimony of DW1 and DW2 are not in agreement on what the deceased is alleged to have said and done on the date of the alleged oral will, by virtue of section 10 of the Act, the alleged oral will is not valid as its contents have not been proved by a competent and independent witness who could have clarified the evidence of DW1 and DW2. I shall therefore disregard the alleged said alleged oral will for the reason that the contents are not clear. I shall therefore proceed on the basis that the deceased died intestate.

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So, how does the court deal with the estate of the deceased? Part V of the Act provides for intestate succession. However, by virtue of section 32 of the said Act, the provisions of Part V, do not apply to agricultural land and crops thereon, or livestock, situated in such areas as the minister may specify by a notice in the Kenya Gazette, in which case, under section 33 of the Act, the law applicable in such cases will be the law or custom applicable to the tribe or community of the deceased person. In the written submissions of counsel for the first widow, a copy of Gazette number 94 of 23 June 1981 was annexed. The same is in the following terms: ‘THE LAW OF SUCCESSION ACT (CAP 160) APPLICATION OF PART V OF THE ACT In exercise of the powers conferred by section 32 of the Law of Succession Act, the Attorney General declares that Part V of the Act shall not apply to: (a)

Agricultural land and crops thereon; or

(b)

Livestock

In various districts set out in the schedule. SCHEDULE West Pokot Wajir Turkana Garissa Marsabit Tana River Samburu Lamu Isiolo Kajiado Mandera Narok Dated the 23 June 1981. JK KAMERE

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Attorney General.’

The piece of land in dispute is situated at Elburgon which is in Nakuru district. As the above gazette notice has not listed Nakuru District, I find that agricultural land and crops thereon and livestock situated in Nakuru district are subject to the provisions of Part V of the Law of Succession Act. The provisions of the said Part V therefore apply to the land in question. Under section 40(1) of the Act: ‘Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate, shall in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.’

The number of children in each house of the deceased person is in the first instance, a guiding factor in the distribution of the intestate estate of the deceased. As the section does not talk of sons of the deceased, what is to be taken into account is the number of children in the particular house of the deceased person. Once the intestate estate has been divided among the houses of the deceased person according to the number of children in each house, then section 40(2) provides that the residue of the net intestate

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estate within each house shall be distributed in accordance with the rules set out in sections 35 to 38 of the Act. I have already found that the married daughters of the daughters of the deceased person are entitled to a share of the estate of the deceased. Elsewhere in this judgment, I have found that the two widows hold the land in dispute jointly for themselves and as trustees for the rest of the members of the family of the family of the deceased. I do not know what 6.200 hectares translates to in terms of acres and as the first house has a total of eight people, a fraction of said land, having first taken into account the acreage occupied by the side road, will go to the first house, and the remaining fraction to the second house of the deceased.

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The total number of people who are entitled to inherit this land is fifteen.The side road will be surveyed and its acreage ascertained and deducted from the entire land. The remaining portion is what the beneficiaries will share,. The exact size in terms of acres had not been agreed in the written submissions. Counsel for the first house puts it at 15.052 acres while counsel for the second house puts it at 16 (sixteen) acres. It will therefore be safe to talk about units instead of acres. Each beneficiary is entitled to one unit so that the first house gets eight units seven of which will be equal. But as Naphtali Njogu of the first house resides on the land of the second widow, while he is from the first house, the 8 unit in the first house will go to him and it will be less than the other seven as it will be reduced by the size of the portion which he is currently occupying in the home of the second widow. The members of the second house have lost some space which is occupied by the said Naphtali Njogu, as I have said they will recover this from the first house as Njogu’s share from the first house will be less by what he is currently occupying. As for the second house which will get seven units, one for each one of them, the 7 unit will be taken by Ishmael Kiruku and it will be less by size of the portion which he is currently occupying in his mothers homestead. The subdivision will take into account the way they have been cultivating. As earlier agreed by the parties on 25 October 2001, Njoro/Ngata Block 4/40 (Rumwe) will go to the first house to be shared equally among the eight members of that house. On the hand, Elburgon Town/Low Cost number 28 will go to second house of the deceased to share equally by the seven members of that house.

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Mwathi v Mwathi and another [1995-98] 1 EA 229, (Gicheru, Kwach and Shah JJA) (The intestate succession to the estate of a deceased Kikuyu is subject to Kikuyu customary law).33

CASE NO. 117

The deceased, a Kikuyu from Wangige in Kiambu district, died in 1987, at the age of 65. He was unmarried and had no children, but he had property at Kiambu. The High Court invalidated his written will and ordered that his estate be dealt with in conformity with Part V of the Law of Succession Act, which required that the property be shared equally between all those entitled to a share – the brother and the two sisters who survive the deceased. On appeal the Court of Appeal held, without referring to or even mentioning the Law of Succession Act, that the law applicable to the estate of a deceased Kikuyu is Kikuyu customary law.

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GICHERU, KWACH and SHAH, JJA: Having annulled the will, the judge correctly observed that the deceased’s estate fell to be distributed in accordance with the law of intestacy but instead of leaving it at that, he proceeded to order that the appellant and the respondents, as the only surviving persons beneficially entitled to the deceased’s estate, should share the suit land in equal shares. This part of the judge’s order cannot be sustained.34 The intestate succession of a deceased Kikuyu is governed by the Kikuyu customary law.35 The asset involved is a piece of land and the matter must therefore be determined by the Kikuyu customary law relating to land inheritance. As we have already said, the deceased died leaving no wife or children. He was survived by one brother and two sisters. The Kikuyu customary law on devolution of land is notorious and the courts can take judicial notice of it, thereby dispensing with the need to prove it by evidence. In the Restatement of African Law: 2 (The Law of Succession) by Eugene Cotran, the relevant Kikuyu customary law is stated at p. 14 as follows: ‘4.

33

34 35

Estate of an unmarried man the property of an unmarried man, whether land, livestock or movables, is inherited as follows: (a)

by his father, if alive; or, in his absence

(b)

shared equally among his full brothers; or, in their absence,

(c)

shared among his half-brothers; or, in their absence, and so on.’

This decision should be treated with circumspection. It did not consider nor cite the provisions of the Law of Succession Act which were clearly applicable to the case, especially Sections 2, 32 and 33 of the Act. It is not clear whether the Court of Appeal decided this matter in ignorance of these provisions, or it chose to ignore them. If it had properly addressed itself to these provisions its conclusion would no doubt have been different. With respect, the High Court was right; it was the Court of Appeal which fell into error. The principle that the Court of Appeal was stating here was presumably to be of general application to the intestate succession to the estate of any deceased Kenyan African.

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From the above extract, it will become plainly obvious that among the Kikuyu, sisters cannot inherit their brother’s land. So the order made in favour of the respondents must be set aside as it is contrary to the law.36…The estate of the deceased will be dealt with according to the customary law governing the intestate succession of a deceased Kikuyu.37 In the Matter of the Estate of Elijah Mbondo Ntheketha (Deceased) Nairobi High Court succession cause number 193 of 1997 (Koome J) (Customary law only applies to property situate in such areas as have been exempted from the intestacy provisions as per a gazette notice under section 32 of the Law of Succession Act)

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CASE NO. 118

The children of a woman who was married to the deceased under statute, but was subsequently divorced sought revocation of grant on the grounds that they were not disclosed in the application for grant made to the widow and children of the deceased. The evidence on record indicated that the son of the divorced woman was brought up at the home of the deceased and it was in fact the deceased who paid dowry for his wife when they married. The proposed distribution catered for three wives of the deceased, but did not take into account the children of the divorced wife. The court, basing itself on sections 3, 29, 32 and 40 of the Law of Succession Act, held that the children of the divorced were entitled to a share in the estate as the children of the deceased. The grant was revoked.

KOOME J: It is not disputed that the deceased was married to the applicant’s mother and that the marriage was dissolved by a formal court order passed in 1941. It is not also in dispute that the first applicant was born in 1939, and that the second and third applicants are the children of the deceased as he was granted custody after the divorce with the first wife. It is also not disputed that the first applicant at some point in his life was settled by the deceased at his home and given a piece of land. What was contested by the respondent by way of affidavits which were not substantiated by way of oral evidence was the fact that the first applicant was not a biological son of the deceased. The petitioner’s first witness Sarah Muthio would not prove this allegation as she got married to the deceased in 1975, she would only rely 36

37

With tremendous respect, the decision of the High Court was not contrary to the law; in fact it is the Court of Appeal which was totally wrong. The sisters were entitled to a share of their late brother’s land in equal shares with their surviving brother as provided in section 39 of the Law of Succession Act. The asset in question was situated in Kiambu district which is not one of the areas the subject of Legal Notice number 94 of 1981. This decision should be treated as bad law with regard to the application of customary law to the estate of a deceased Kenyan African intestate dying after 1st July 1981

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on a divorce certificate which was attached to an affidavit she swore on 8 April 2005 and the only reason for her assertion as stated under paragraph 4 is that Musyoki Mbondo’s custody was not vested upon the deceased as follows: ‘According to the said divorce, only the custody of the two daughters namely Mwelu Mbondo and Mutindi Mbondo were given to my late husband and not the custody of the 1st applicant Musyoki Mbondo herein. ‘That at all material times before my husband died, he only recognized the two daughters as his own and he provided for them as defendants during his lifetime.

The other issues that in my humble view require examination is whether the applicant’s cause of action is statute –barred under section 30 of the Law of Succession Act – Chapter 160. Secondly, although the deceased died in 1995, evidence was led and submissions made to the effect that the estate of the deceased should be distributed according to Kamba customary law and hence the second and third applicants are not entitled as married daughters. Thus it will be important to consider the law applicable in this matter. As regards the paternity of the first applicant, I find no cogent evidence to support the fact that he was not a biological son of the deceased. He was born in 1939 and the divorce was issued in 1941 according to section 118 of the Evidence Act which provides: ‘the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he would have been gotten.’

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In any event the deceased did not turn away the first applicant, he accommodated him within his homestead, and he allocated to him a parcel of land and provided for him items to pay for his dowry. In this regard I am satisfied that the first applicant falls within the definition of a child under section 3 of the Law of Succession Act: ‘ “child” or “children” shall include a child conceived but not yet born (as long as that child is subsequently born alive) and in relation to a female person, a child born but out of wedlock, and, in relation to a male person, a child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.’

Going by this broad definition which would also be read together with the definition of a dependant of the deceased under section 29 of the Law of Succession Act, it is not possible at all to exclude the first applicant as a child and a beneficiary of the deceased. This now brings me to the other controversy on whether the second and third applicants being married daughters of the deceased would be included as beneficiaries of the deceased estate. Section 2 of the Law of Succession Act clearly states that all the estates of persons dying after the commencement of this Act their estate shall be administered under this Act. This Act became operational on 1 July 1981 and the deceased died in 1995 and his estate therefore should be administered according to the Law of Succession Act. Submissions were made by counsel for the respondents to the effect that section 32 of the Law of Succession Act except agricultural land, crops thereon and livestock

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from the provisions of the Act. With tremendous respect, the only areas that are excluded from the Act are those specified through Notice of Gazette by the Minister. The ones am aware of are group ranches in arid and semi-arid areas.38 No such notice has been issued to cover the area where these deceased properties are situated. In any event, if Kamba customary law excluded daughters from inheriting from their fathers, the deceased himself is said to have given the second applicant 24 acres of land which in my view is an indication that he perhaps treated his daughters equally with his sons. It would be worthwhile to mention a remarkable decision by the Court of Appeal which is relevant to this case and where the Court of Appeal had occasion to determine the inheritance rights of married daughters. Mary Rono v Jane Rono and another civil appeal number 66 of 2000 (unreported). Apart from examining the Law of Succession Act, the Court of Appeal did refer to the Constitution of Kenya that outlaws discrimination on basis of sex and also to the international conventions and treaties on human rights that Kenya has signed and ratified. Although these international conventions especially the Universal Declaration on Human Rights, the Convention on Civil and Political Rights and more particularly the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the African Charter on Human and Peoples’ Rights have not been domesticated, Kenya’s intentions in signing and ratifying them can only be understood to mean that the people of Kenya can rely on these provisions to promote and protect human rights in as far as these provisions are not contrary to the written law. I see no contradictions in these fundamental provisions of principles of between the deceased children.

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All these international and regional norms emphasize the fundamental principle of respect and treatment of all human beings equally and specifically outlaws discrimination on the basis of sex, marital status etc as indeed stipulated in the Kenya Constitution and were so with greater clarity in the draft Constitution. I am in agreement with this binding case of the Court of Appeal that the Law of Succession Act and especially section 40 of the Law of Succession Act which deals with the distribution of the estate of a polygamous intestate estate does not offer any differential treatment of a deceased person’s daughters. I also find that the houses of the respondents are survived by daughters who are not being discriminated. Their marital has not been given. In this case therefore I come to the inescapable conclusion that the deceased estate should have been distributed according to section 40 of the Law of Succession Act which provides: ‘Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate shall, in the first instance, distribute among the houses according to any wife surviving him as an additional unit to the number of children.

38

This is not accurate. The Law of Succession Act does not provide for exemption of group ranches from the provisions of Part V of the Act. Not all arid and semi-arid areas have been excepted from the provisions. The exemption currently in place affects areas where communities still embrace communal ownership of land, that is where land tenure is yet to be individualised.

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The distribution of the personal and household effects and the residue of the net intestate estate which earn more shall then be in accordance with the rules set out under section 35 to 38.’

In this regard, the applicants should not have been omitted as beneficiaries of the deceased estate. Even if the deceased had given them some gifts of land parcels in his lifetime those gifts should be taken into account alongside other beneficiaries which the deceased had given land and other assets or as gifts inter vivos. In the Matter of the Estate of Mwaura Gathari (deceased) Nairobi High Court succession cause number 1678 of 1999 (Rawal J) (Customary law applies to the estate of an intestate by virtue of section 33 of the Law of Succession Act where the intestate dies after the Act came into force. The Act does not discriminate against daughters, and therefore daughters, whether married or not are entitled to a share in the estate of their deceased father)

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CASE NO. 119

A daughter of the deceased objected to a grant being made to her mother and her brother over the estate of her deceased father. The petitioners had alleged that all the daughters were married, hence they were not considered to be the survivors of the deceased. The court held that customary law did not apply to the circumstances since the estate was not subject to sections 32 and 33 of the Law of Succession Act, instead the Law of Succession Act applied, and by its provisions the daughter was a survivor of the deceased and she was entitled to a share in his intestate estate, as the Act does not discriminate between the sons and daughters of the deceased whether they are married or not.

RAWAL J: … The petitioners have neither denied nor left out her name as a surviving daughter of the deceased. Whether she is married or unmarried is, in my view, immaterial at this juncture. The deceased died after the Law of Succession Act came into operation which was on 1 July 1981. The Act does not discriminate between male or female children or between married and unmarried children. The only provision where the Act applies customary law to the intestate estate is section 33 which provides for distribution of the properties specified in section 32 of the Act as per law or custom applicable to the deceased’s community or tribe as the case may be. Section 32 specifies the properties contemplated on section 33 as aforesaid. They are (a) agricultural land and crops thereon and (b) livestock. …In short I find that the first objector is a married daughter of the deceased and subject to the exceptions stipulated in section 33 of the Act, she is the beneficiary of the estate of the deceased.

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Rono v Rono and another [2005] 1 EA 363. (Omolo, O’Kubasu and Waki JJA) (The application of African customary law is expressly excluded unless the Law of Succession Act, itself makes provision for it). The deceased hailed from Uasin Gishu district of the Rift Valley province and died in 1988, survived by two wives and nine children (six daughters and three sons), and a dispute arose between the two houses over the distribution of the estate. The High Court took customary law into account in resolving the dispute, and this aspect of the High Court’s judgment was the subject of an appeal to the Court of Appeal. It was held by the Court of Appeal, that the African customary law was no longer applicable to the matter following the coming into force of the Law of Succession Act, since its operation had been ousted by the latter.

CASE NO. 120

WAKI JA: The application of customary law…is expressly excluded unless the (Law of Succession) Act itself makes provision for it. The Act indeed does so in sections 32 and 33 in respect of agricultural land and crops thereon or livestock where the law or custom applicable to the deceased’s community or tribe should apply. But the application of the law or custom is only limited ‘to such areas as the Minister by Notice in the Gazette specify.’ By Legal Notice number 94 of 1981, made on 23 June 1981, the Minister specified the various districts in which those provisions are not applicable. The list does not include Uasin Gishu district within which the deceased was domiciled. So that, the law applicable in the distribution of the agricultural land in issue in this matter is also written. Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

***

8.3 RIGHTS

OF A

SURVIVING SPOUSE

The Law of Succession Act grants certain rights to the surviving spouse. These are set out in sections 35(1), 36(1) and 37 of the Law of Succession Act. Cases numbers 121, 122 and 246 deal with the rights of a surviving spouse. Section 35(1) provides: ‘Subject to the provisions of section 40, where an intestate has left a surviving spouse and a child or children, the surviving spouse shall be entitled to: (a)

The personal and household effects of the deceased, absolutely; and

(b)

A life interest in the whole residue of the net intestate estate:

Provided that, if the surviving spouse is a widow, that interest shall determine upon remarriage.’

Section 36(1) provides:

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‘Where the intestate has left one surviving spouse but no child or children, the surviving spouse shall be entitled out of the net intestate estate to: (a)

The personal and household effects of the deceased absolutely; and

(b)

The first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater; and

(c)

A life interest in the whole of the remainder:

Provided that if the surviving spouse is a widow, the life interest shall be determined upon her remarriage to any person.

Section 37 provides: ‘A surviving spouse entitled to a life interest under the provisions of section 35 or 36, with the consent of all co-trustees and all children of full age, or with the consent of the court, may, during the period of the life interest, sell any of the property subject to that interest if it is necessary for his own m maintenance:

Provided that, in the case of immovable property, the exercise of that power shall always be subject to the consent of the court.’ In Re Estate of Samuel Githagui Kinyanjui [2005] eKLR (Koome J) CASE NO. 121

(Under section 37 of the Law of Succession Act, the surviving spouse can dispose of by sale the interest held for life, with the consent of co-trustees and of all the adult children, or of the court) Facts are set out in the ruling.

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KOOME J: I have considered the summons brought by the petitioner under section 37 of the Law of Succession Act and rules 49 and 73 of the P and A rules. The applicant has sought for leave of the court to sell LR number Dagoretti/ Kinoo/T 198 to be able to pay school fees for the three children. She has further sought for leave so that the sale proceeds may be deposited in a bank account to be operated between the widow and the two grown up children. According to the supporting affidavit, the child known as Morgan Kinyanjui has been admitted to the University of Nairobi for a degree course which was supposed to have commenced in February 2005 whereby he has been unable to pay KShs 198 750 and therefore deferred the course. Rosaline Nyambura is also desirous of joining a college to undertake a course and the last born child who is still a minor is in preparatory school whereby the school fees per term ids KShs 18 500. The applicant has another parcel of land being LR number Dagoretti/ Waithaka/1085 whereby they reside with the children. According to the provisions of section 37 a surviving spouse who is entitled to a life interest with the consent of the co-trustees and all the children of full age and with the consent of the court, can sell the interest held for life.

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In this case the two children who are of age have duly filed their consent to the proposed sale. I am satisfied that the applicant should be granted leave to dispose of the property held in trust for reasons given in the application In the Matter of the Estate of Musau Ngau (Deceased) [2008] eKLR (Lenaola J) (A woman married under the customary woman-to-woman arrangement is in the same position as any wife, and she is entitled to a share in the intestate estate of the deceased husband of the woman who married her)

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CASE NO. 122

The deceased, a polygamist, was survived by two widows, who had one married daughter and eight children, respectively. One of them had married a wife under the traditional woman-to-woman arrangement. Grant of letters was made jointly to the two widows. When they sought confirmation of the grant, the wife married under the woman-to-woman arrangement brought protest proceedings arguing that she and her children were entitled to be considered as having survived the deceased, and therefore equally entitled to share in his estate. The court concluded that the said woman was in the same position as any wife, and she was entitled to a share of the estate of the deceased through the wife of the deceased who had married her.

LENAOLA J:Against the above issues is the law on the subject. In Restatement of African Law, Volume 1 by Eugene Cotran at page 26, woman-to-woman marriages are recognised and in the case before me parties admit and accept the existence of Wayua’s woman-to-woman marriage to Kakuli. Once that is so, then under Kamba customary law, Wayua is in the same position as any wife; she can only inherit as a wife of her husband and not of her husband’s husband. In the instant case, Wayua cannot inherit as Musau Ngao’s wife because she is not his wife but his wife’s wife.This conclusion is clear to me from the whole purpose of a woman-to-woman marriage and also from the evidence of Muthoka Kitimba who forcefully stated as follows: ‘Wayua is supposed to inherit Musau’s property after Kakuli, her husband, has inherited that property.’

Similarly Mutiso Mbungu said: ‘I confirm that Grace Wayua is entitled to inherit from Kakuli.’

Mutindi Musau said: ‘Wayua is entitled to inherit her share through Kakuli because they were married traditionally.’

6.

That is the customary law as I see it and turning to section 40 of the Law of Succession Act, I have perused the Report of the Commission on the Law of Succession which led to the enactment of the Act and I do not see that womanto-woman marriages were addressed but in a polygamous setting, section 40

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applies squarely. In this case, the deceased’s widows are Kakuli Musau and Mutindi Musau. I see that although Mbutu Musau is mentioned, I have seen no claim whatsoever by her house and I do not know if they exist because Muendo Musau is mentioned in one document by elders of the clan which has been disputed. In the affidavit sworn on 22 February 2007, and in proceedings before me it seems that there is agreement that the suit land should be shared out between the two houses that are existing and clear, i.e. Kakuli’s and Mutindi’s. Wayua and her children belong to Kakuli’s house and yet again if I invoke section 40 aforesaid the division would be equal because together with Kakuli’s daughter and Wayua’s children, that household would be eight in number which is equal to Mutindi’s. 7.

In the event, while confirming that Wayua is entitled to a share of Musau Ngao’s estate, she can only inherit through Kakuli and so my orders will try and secure her future in the following manner;

8.

Title number Utithi/Masii/189 will be shared equally between Kakuli Musau and Mutindi Musau and out of Kakuli’s half share, a half thereof shall be registered in Wayua’s name for herself and her children to avoid any further friction on the subject.

9.

The grant herein is confirmed in the above terms. ***

8.4 THE RIGHTS

OF

CHILDREN

The rights of children are encapsulated in sections 35(2) (3) (5) and 38 of the Law of Succession Act. Section 35(2) (3) (5) provides as follows:

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‘35(2) A surviving spouse shall, during the continuation of life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date. (3)

Where any child considers that the power of appointment under subsection (2) has been unreasonably exercised or withheld, he or, if a minor, his representative may apply to the court for the appointment of his share, with or without variation of any appointment already made.

(5)

Subject to the provisions of sections 41 and 42 and subject to any appointment or award made under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.’

Section 38 provides as follows: ‘Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.’

(a)

An Only Child is entitled to Whole Net Intestate Estate

Where an intestate is survived by only one child, such child takes the whole of the net intestate estate, as illustrated in cases numbers 123 and 246.

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In the Matter of the Estate of Loice Njeri Ngige Eldoret High Court probate and administration number 113 of 1994 (Nambuye J)

CASE NO. 123

(An unmarried person’s intestate estate, where the person is survived by a child or children, is inherited solely by their child or children.The share of such children who are minors is held on statutory trust. Where the beneficiaries are minors a continuing trust arises) The father of a deceased woman sought letters of administration to her intestate estate. The petition was objected to by a man claiming to be her husband. The court found that the man was not her husband and was therefore not entitled to grant of letters of administration. Thereafter the court proceeded to grant letters to the woman’s relatives, and pronounce that her only child was the sole heir to her estate, which ought to be held in trust for her until she attained eighteen.

NAMBUYE J: On the courts assessment of the facts herein it is clear that there is no dispute that The deceased was daughter of DW4 the petitioner. There is no dispute that the child of the deceased Ziporah Nyambura was fathered by objector. No dispute that PW2 is mother of the objector.

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No dispute that both families live in Kamukunji and they know each other very well. The petitioner came to this court seeking a grant of representation because as far as him and his family was concerned the deceased was unmarried as he has not undergone any form of marriage with anybody. The stand of the objector is that the deceased was his wife because of: (a)

Long cohabitation.

(b)

Had a child with them.

(c)

Part payment of dowry was made and more was to follow later.

(d)

They married before the District Commissioner’s office Kiambu as per the Marriage Certificate exhibited.

(e)

He had entered the deceased’s name and that of their child in his employment records as his wife.

The court’s assessment of this fact is that a marriage as we know it in law and this court takes judicial notice of this fact is normally under the 4 systems of family law in this country. That is Customary, Hindu, Moslem or Statutory.

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Customary Law marriage is contracted under the customary law of the community concerned. This is usually signified by an agreement for marriage discussion and then payment of dowry. Herein the objector never mentioned that he paid any dowry. But his mother PW2, PW3 and PW7 said that dowry was paid. There is no agreement to that effect and there is nothing to counter the denial of the petitioner. I therefore find that there was no payment of dowry and no marriage discussion took place for the payment of the same.39 The second way of constituting a marriage is long cohabitation. Before a party is availed of this form of marriage a party has to go to court and obtain a declaratory order that he was married by long cohabitation.40 There is no such an order in place and so that does not avail the objector. A third way of constituting a marriage is that of going through a statutory marriage either under the African Christian Marriage Act or the Marriage Act. The objector has produced Marriage Certificate number 10052 exhibit 4. It shows that marriage was celebrated on 7 August 1992. The heading of the certificate is Colony and Protectorate of Kenya. The certificate should have ceased being used upon attainment of independence. Infact this court takes judicial notice of the fact that it is the first of this kind I have encountered in the whole period of my judicial career. All those that the court has come across are titled the Republic of Kenya.The certificate is therefore suspect. Further suspicion is from the fact that the deceased was indicated as being a house wife when she was employed as an accountant. Thirdly the father of the deceased was indicated as being deceased when he was infact alive and gave evidence.

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The objector agreed that some information on the certificate are false to his knowledge but took no steps to correct the same. Lastly no witness has come forward to state that he or she witnessed the said marriage take place. Not even his people. Even if it can be taken that the deceased and him feared the petitioner and so they had to marry secretly there was nothing to prevent him from calling his own people to witness the marriage as they knew the deceased and had lived with her as shown by the photographs taken. Lastly no explanation has been given as to why the persons whose names appear on the certificate as witnesses did not come to confirm the same. The court was not told that they are still alive. The only inference that can be drawn from the objectors failure to call them is that it is because they would speak the truth. The upshot of the foregoing is that the certificate is fake. In the premises there is nothing to prove marriage. Only evidence of cohabitation and so the petitioner was entitled to take letter of administration to the estate of the deceased. 39

40

The court should have examined the customary requirements relating to marriage in the community from which the parties came.There is ample literature as well as judicial decisions on Kikuyu customary marriages; the court should have adverted to these materials. With respect, this does not appear to be the law and practice. In nearly all cases the need for presumption of marriage out of prolonged cohabitation arises in probate causes. Indeed the leading authorities or precedents in the area, that is to say Hortensia Wanjiku Yawe v Public Trustee Court of Appeal for East Africa civil appeal number 13 of 1976 and Mary Njoki v John Kinyanjui Mutheru Court of Appeal Civil Appeal number 71 of 1984, were probate or succession causes.

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The second aspect for objection by the objector was that the petitioner had overlooked his interest in the property being the plot at Kapsoya. I do not have the agreement of sale but although it was conceded by the objector that his name does not appear in the agreement of sale, he says that they did not pay jointly for the plot but he met payments for other incidentals and they agreed that the plot be registered in their joint names. The courts assessment of this evidence is that title is prima facie proof of ownership and in the absence of evidence or any order to divest him of the said title he is a prima facie joint owner with the deceased. I therefore agree that his interest should have been catered by the petitioner herein and so his interest will be considered. After making the foregoing conditions I now determine two issues namely: (a)

who is the proper administrator

(b)

distribution of the estate

On the first issue of who is the proper person to administer the estate. I rule that one Peter Gicharu Ngige who is the administrator of Samuel Ngige Gituro is the proper administrator of the estate of his sister Loice Njeri Ngige in the place of his father who was the petitioner Samuel Ngige Gituro. I note from the birth certificate of the child number B 741135 that the child Ziporah Nyambura Mungai was born on 1 February 1988 and she is 15 at the time of trial. The law requires that where a beneficiary is under age then there is a continuing trust which requires that it be administered by two trustees. In order to save the parties from further litigation and costs in respect of a matter which has been in court for almost 10 years I invoke rule 73 of the Probate and Administration Rules and appoint the wife of Samuel Ngige Gituro who is the mother of the deceased to jointly administer the estate with Peter Gicharu Ngige. Peter Gicharu Ngige will submit her name.41

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Having appointed administrators I now come to distribute the estate of the deceased as follows:

41

1.

Bank account proceeds

2.

Death gratuity or employment benefits from the employer all go to the benefit of the minor Ziporah Nyambura.

3.

The house at Kapsoya being plot No. LR Eldoret Municipal/Block 9/1361 to be registered in the joint names of the appointed administrators on behalf of Ziporah Nyambura and Christopher Mungai Thiongo.

The court exercised inherent powers, given by rule 73 of the Probate and Administration Rules, to appoint as administrators persons who had not sought to be so appointed. It is doubtful whether the inherent powers of the court should be exercised in this manner: to make administrators persons who had in the first place not sought such appointment. The Court of Appeal disapproved of this in Florence Okutu Nandwa and another v John Atemba Kojwa Kisumu Court of Appeal civil appeal number 306 of 1998 (Kwach, Shah and O’Kubasu JJA) and proceeded to revoke a grant where the High Court had appointed as administrator a person who had not sought the grant. Similarly the High Court in In the Matter of the Estate of Dr Arvinder Singh Dhingra (deceased) Nairobi High Court succession cause number 2572 of 1996 (Aluoch J) on its own motion revoked a grant issued by itself to advocates for the parties upon the finding that it was improper to make such appointment where the advocates themselves had not sought the appointment.

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4.

The developments in the plot to be valued and if there is a residential building on the same the rent payable be assessed so that half of the rent goes into the account of Ziporah Nyambura.

5.

The administrators shall open minors account in their joint names on account of Ziporah Nyambura into which they will be paying the proceeds from the bank account of the deceased and the death gratuity and the half share of the rent.

The said amounts of money realised as in number 5 above will be utilised for the education and general upkeep of the minor. The administrators’ trusteeship will be terminated upon the attainment of majority by the minor when the account opened on her behalf and the half share in the Kapsoya house will be transferred into her name. *** (b)

Surviving Children share the Estate equally

Where the deceased is survived by more than one child, the surviving children are entitled to the estate in equal shares. Cases numbers 124, 125, 126 and 127 illustrate this point. Omolo JA in case number 6 says that equality in the division of the estate of an intestate among his children is not what is envisaged.The position taken by Omolo JA does not appear to conform to the provisions in sections 35 and 38 whose spirit clearly points to equal distribution as between the children of the deceased. In the Matter of the Estate of Patrick Mungai Kugega (deceased) Nairobi High Court succession cause number 1374 of 2000 (Koome J)

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(Under section 38 of the Law of Succession Act, the estate of a deceased person, who is survived by children only, is divided between the children in equal shares. It is up to the child who alleges that he gave money to the deceased to acquire some of the assets to prove the allegation) CASE NO. 124

The protest to confirmation of grant was by a son who claimed that the estate of the deceased should not be divided equally between all the children, their mother having predeceased them. He contended that one of the assets was acquired with money that he had given to his father, and further that the deceased had bequeathed the property to him. The court took the view that there was not enough evidence to support this contention, and proceeded to hold that section 38 of the Law of Succession Act was explicit that the estate of deceased intestate who is survived by children only, should be shared between the children in equal shares.

KOOME J: During the hearing the protestor testified and stated that Title Number Kawangware/Riruta/262 was bequeathed to him by his late father. He claims that he used to send money to his father which was used to purchase the other parcels of

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land in Ngong. He confirmed that the deceased is survived by seven children and all of them have built their homes at Kawangware and that is where the deceased left them.The protestor would wish them to relocate to Ngong so that he is left as the sole owner of the plot at Kawangware. He claims that his father left him the plot although; the deceased died intestate and did not leave a will. I have considered the affidavit of protest, and the testimony by the protestor who is the co-administrator carefully. The Protestor did not produce any evidence to show to this court that he helped the deceased to buy the properties at Ngong. No sale agreement or document to show that he contributed to the purchase. This particular allegation was also denied by the co-administrator. The Law of Succession especially section 38 is quite instructive on how the deceased estate should be distributed when the deceased dies intestate leaving children such as in this case, section 38 provides: ‘Where an intestate has left a surviving child or children but no spouse, the net intestate shall, subject to the provisions of section 41 and 42, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.’

In view of this clear provision of the Law, the deceased estate should be shared equally amongst the beneficiaries. All the other (6) beneficiaries have duly filed their consent to the grant being confirmed and the proposed schedule of distribution. The protest by James Ndungu Mungai is without merit. I dismiss the same. Since this is a family matter there shall be no order as to costs. I accordingly allow the application for confirmation dated 6 February 2003 and the grant made on 14 January 2003 be and is hereby confirmed. In the Matter of the Estate of George Karegwa Gitau (deceased)

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Nairobi High Court succession cause number 959 of 2001 CASE NO. 125

(Ang’awa J) (Where the deceased is survived by children without a spouse, the estate is divided amongst the children in equal shares) The facts are set out in the ruling.

ANG’AWA J: George Karegwa Gitau died on 22 February 1998 intestate and was survived by 4 sons and two daughters. It is unclear what has happened to his spouse and mother of the children. The estate is administered by the Public Trustee who states that the only asset is the death gratuity of KShs 355 293-75 that is to be divided equally amongst the surviving children. There is only one minor whose share is to be invested. Section 38 of the Laws of Succession Act Chapter 160 provides for the apportionment to be in equal shares amongst the surviving children. This is in order.

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Nonetheless, the Public Trustee has not addressed this court on the immovable property of the deceased and as to his spouse. I would give the Public Trustee time to clarify this point before the confirmation of grants. In the Matter of the Estate of Ellah Warue Nthawa (deceased) Nairobi High Court succession cause number 971 of 2001 (Ang’awa J)

CASE NO. 126

(Where an intestate is survived by children but no spouse, the estate is to be shared equally by the surviving children. A court faced with a confirmation application where apportionment is not in conformity with the law should reject it, and require the parties to move the court again after complying with the applicable law) The court was faced with a confirmation application. The deceased died single and intestate, her survivors being her two sons and a daughter. The grant of letters was made to the two sons. They proposed to apportion the estate in a manner that would have seen the daughter take a smaller share of the estate, compared with the shares going to the sons. The court relying on section 38 of the Law of Succession Act found that the estate should be divided equally between the three survivors and rejected the application for confirmation.

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ANG’AWA J: On the merits of the application the parties wish the grant to be apportioned as per the shares they have stated in the affidavit. They have divided the majority of the properties between the two male survivors. The female survivor has only a small portion. They have also shared the full amount of the bank account money to the male survivors only. According to the Law of Succession Act – Intestacy Part V it states at Section 38 as follows: ‘Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall subject to the provisions of section 41 and 42 (dealing with a polygamous house) divide upon the surviving child. If there is only one, or be equally divided among the surviving children.’

I have before me three surviving children. The law requires that their shares be divided equally amongst them. This is not the case as per the apportionment before me. I hereby reject this application. The applicants are to file another application in compliance with section 38 unless there is renunciation of their shares.

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In the Matter of the Estate of Kinyuru Karanja (deceased) Nairobi High Court civil succession cause number 2361 of 2004 (Waweru J) (The Law of Succession Act envisages an equal distribution of the intestate estate between the children) CASE NO. 127

The widow of the deceased was the administratrix of his estate. When she sought confirmation of the grant the same was opposed by two of her sons, who filed an affidavit in protest claiming that their mother favoured one of the other children, and that she gave him more land than the others. She explained that the son had contributed to the purchase of the suit land. The court held that the estate should be distributed as proposed by the two protesting sons as there was no evidence that the favoured son contributed to the purchase of the property.

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WAWERU J: From the supporting and replying affidavits only one proposal is agreed, and that is that the administratrix do get 0.4 acre in L.R.KIGANJO/KIGANJO/288. The two protesting sons, James and Joseph propose that the remainder of that land be shared equally by the four sons, each getting 1.0 acre. They also propose that similarly the four sons do share equally L.R.KIGANJO/KIAMWANGI/560.Their mother has proposed that Samuel gets 1.375 acres in L.R.KIGANJO/KIGANJO/288 while the other three sons each get 0.875 acres. She also proposes that she and the four sons do share equally L.R.KIGANJO/KIAMWANGI/560. When I heard this application on 11 May 2004 no proper evidence was forthcoming from either Samuel or the administratrix that Samuel had contributed specifically towards purchase of the land. All there was was evidence of normal assistance such as any son would extend to his parents. It appears that the other sons had also extended such assistance to the parents. It may be that the administratrix has her own valid reasons for loving Samuel more than the other sons. But that is not sufficient reason for taking a bit of the inheritance of the others to give to him. It is not her estate that is being distributed but that of her husband. I will therefore order that distribution be as set out in paragraph 4 of the replying affidavit if James and Joseph. The grant will be confirmed in those terms. It is so ordered. *** (c)

Children taken into the Family

Sections 35 and 38 of the Law of Succession Act have to be read together with section 3(2) of the Act which defines ‘child’ and ‘children.’ Section 3(2) provides: ‘References in this Act to ‘child’ or ‘children’ shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, a child born to her out of wedlock, and, in relation to a male person, a child whom he has expressly

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recognised or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.’

In case number 128 the court deals with the issue concerning a child that an intestate had taken into his family and raised as his own. In case number 140 the court makes the point that, under section 3(2), the law only caters for the child taken in by a male person, it does not provide for any child taken in by a female person. In the Matter of the Estate of Stephen Wanyoike Muhia (Deceased) Nairobi High Court civil appeal number 6 of 2002 (Koome J)

CASE NO. 128

(A child that the deceased has taken into his family as his own is a child for the purpose of succession, and a woman who cohabited with the deceased as his lawful wife can be presumed to be a widow for purposes of succession) The dispute was on whether a woman, who cohabited with the deceased, and a child that she had brought along with her, were a widow and child for succession purposes. The court held that both the woman and the child were heirs to the estate of the deceased.42

KOOME J: I have carefully evaluated the above submissions as well as the record of appeal.

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Based on the evidence of the respondent and her two witnesses, it is clear that she used to cohabit with the deceased, as a wife and those witnesses knew her as the wife of the deceased, It is clear that the customary ceremonies of marriage had not been performed although it is clear the family of the deceased made a visit to the family of the respondent. Generally there is no limit set under customary law to complete those ceremonies and perhaps the deceased had he not met his untimely death in a road accident he could have completed the ceremonies. Regarding the evidence on record, I am satisfied that the learned magistrate properly directed himself to the issues in dispute. Counsel for the appellant argued that the respondent was a mere girlfriend who merely used to visit the deceased. This argument cannot hold in the face of evidence even by the appellant’s witnesses who confirmed that the respondent continued to live in the deceased’s home even after his demise for a period of one year. The period of cohabitation that can be

42

One inadequacy of this judgement on appeal is that it is not clear whether the deceased had died testate or intestate, and it is also unclear on the exact nature of the proceedings that the lower court was handling, whether they were objection, confirmation, revocation of grant or dependency proceedings.This is something that should always be clearly spelt out in the ruling or judgement of the court. The High Court is a court of record, and therefore a judge of the court should in his ruling or judgement clearly state the nature of the proceedings that gave rise to the appeal he is handling. Where a judge fails to do that the ruling or judgement would then become of little precedent value.

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considered to be a marriage is not cast in stones. In this case, I find the testimony of the respondent’s witnesses cogent, they referred to the respondent as the wife of the deceased and that is the reputation that was considered by the learned magistrate. It is clear the child was born before the respondent moved into the homestead of the deceased and therefore she named him after her own father. This cannot preclude the child from being the child of the deceased. After all, there is no evidence to show that the deceased ever denied having sired the child, for the period they lived together with the child and he was published in the newspapers at the obituary papers as the son of the deceased. Based on the above, I am satisfied that the learned magistrate properly considered the matters before him and there is no error in the ruling whereby the grant was issued to the appellant and the respondent as they proved to be the closest persons to the deceased. Accordingly, I hereby dismiss the appeal with costs to the respondent and order that the file be returned to the Chief Magistrate’s court for the finalisation of the administration of the estate as I note the grant of letters of administration was not confirmed. *** (d)

Children of Adulterous Unions

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The Law of Succession Act seeks to protect and provide for all the biological children of the intestate, regardless of whether they are born within or outside wedlock. In cases numbers 129 and 130, the court holds that children born of a relationship which is adulterous are children for the purpose of succession.

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John Ndung’u Mubea v Milka Nyambura Mubea Nairobi Court of Appeal civil appeal number 76 of 1990 (Gicheru, Kwach and Tunoi, JJA) (The children of an adulterous union, between a man married under statute and a woman he purports to marry under customary law, would be children for the purpose of succession, even if the man died before the Law of Succession Act came into force)

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CASE NO. 129

The deceased died in 1978. He had married his wife under the Marriage Act, but he thereafter underwent a customary law marriage with another woman without divorcing the wife married under statute. The customary law wife died in 1976. Upon the death of the man, the statutory wife took out letters of administration and disclosed that she was the lawful wife of the deceased, listing her children as the only other survivors of the deceased. A son of the customary law wife also obtained grant in a separate cause, disclosing the survivors from both houses. The sons of the statutory wife then sought to have the grant made to the son of the second wife revoked. The family of the statutory wife claimed that the deceased had only one lawful wife, and that only members of that family were entitled to inherit. The Court of Appeal was of the view that the woman taken under customary law was indeed a wife since the statutory wife did not object to her husband taking the other woman as a wife, and indeed she had the option of seeking a divorce from her husband, which she did not. In the opinion of the court section 37 of the Marriage Act, which denies a man married under statute capacity to contract other marriages during the currency of the statutory marriage, was of no consequence since the deceased was an African and it was open to an African man to be polygamous.The court found that the children of the deceased with the customary law wife were children who were entitled to inherit from the deceased’s estate. It was held that the deceased died a polygamous man and his intestate estate was available for distribution under customary law in accordance with the intestacy rules governing division of a polygamist’s estate.43

GICHERU, KWACH AND TUNOI JJA: It is common ground that the deceased took Wangari in 1947 and lived with her as husband and wife until her death in 1976. She 43

This decision should be viewed with circumspection. The correct position is that stated in the cases of Re Ruenji’s Estate (1977) KLR 21 and Re Ogola’s Estate,(1978) KLR 18 which, interestingly the Court of Appeal did not advert to. The deceased had contracted a marriage under statute; his marriage was subject to section 37 of the Marriage Act. He had no capacity to take other wives under any law so long as the statutory marriage was subsisting. This is the written letter of the law, which the Court of Appeal could not wish away or ignore. The decision is patently wrong. If the deceased had died after 1 July 1981, section 3(5) of the Law of Succession Act would have covered the situation, and the customary law wife would have been regarded as a wife for succession purposes, and her children, similarly would have been treated as children for succession purposes. It will be observed that the same Court of Appeal in Irene Njeri Macharia v Margaret Wairimu Njomo Court of Appeal civil appeal number 139 of 1994 agreed with the High Court decisions in Re Ruenji’s Estate (1977) KLR 21 and Re Ogola’s Estate (1978) KLR 18, stating that they were good law at the time they were made. Although the decision in Irene Njeri Macharia v Margaret Wairimu Njomo came later, the Court of Appeal, in it, made no reference at all to its earlier decision in John Ndung’u Mubea v Milka Nyambura Mubea Nairobi Court of Appeal civil appeal number 76 of 1990 (Gicheru, Kwach and Tunoi, JJA), and perhaps make an attempt to depart from it. The Court of Appeal’s position in these two matters, whose facts are similar, are clearly inconsistent, which is unfortunate coming from the highest court of record in Kenya.

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was buried on the same piece of land on which the deceased was also subsequently buried in 1978.There was no evidence to suggest that during his lifetime the deceased treated his children with Wangari other than as his children. He provided for them as any sensible father would. When the deceased installed Wangari as his second wife, Nyambura could have petitioned for divorce but she did not. She seemed to have accepted the arrangement and went along with it. She waited until after the death of the principal characters in the so called illicit union before challenging the validity of their marriage. This is a classic case of hitting a man when he is down. It must be very painful for Wangari’s children after all these years to be told by Nyambura from whom they would expect a certain measure of maternal affection and sympathy, and confirmed by a court of justice, that they are not entitled to inherit from a man they always looked upon as their father. The claim by the appellant and his sisters to a share in the deceased’s estate did not depend on whether or not the marriage between their mother (Wangari) and the deceased was valid in the eyes of the law. Their claim as we understand it rests on the simple proposition that they are the children of the deceased who was treated by the deceased as such during his lifetime. For the purpose of their claim, it does not matter how they became the children of the deceased.There is no dispute that if the deceased had died after the Law of Succession Act (Chapter 160) had come into effect, they would have been entitled to a share of his estate. The reality of the situation is that the deceased, who was at one stage a polygamous Kikuyu, died in 1978, and was survived by a widow. 5 sons and 2 unmarried daughters.

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It is true that in Kizito Machani case, this court upheld the statutory prohibition in section 37 of the Marriage Act and held that Maryrose Vernoor was not the appellant’s wife as at the time of her purported marriage to the appellant, the marriage between her and one Vernoor was still subsisting. They had lived as husband and wife for 5 years during which the appellant fathered her three children. The court also noted that it is undesirable to bastardise children or debar succession, after long periods of cohabitation and the birth of children. Although the court held that there was no marriage between the couple, it nevertheless confirmed their parental responsibility towards the children. ...So on the basis of parental responsibility, if for no other reason, the deceased would have been obliged to make adequate provision for his children, including the appellant and his two unmarried sisters, depending on his resources. This is not a case of a father trying to avoid responsibility for children born by a woman he denies being his wife. Here the person disputing the entitlement of the children is a stepmother who chose to remain silent when the disputed marriage took place and lived with it for almost three decades. She would have had a case if the estate of the deceased. But she cannot be allowed at this point in time to use her own marriage to the deceased to bastardise and in effect disinherit the appellant and his sisters who could never have had any say in the decision by the deceased and Wangari to get married and bring them forth. In our view, the judge was plainly wrong and showed lack of familiarity with the African way of life when he extended the statutory prohibition under section 37 of the Marriage Act to the appellant and his 2 sisters and in holding, as he did, that they were illegitimate and therefore not entitled to a share in the deceased’s estate. Accordingly, this ground of appeal succeeds and is allowed.

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It must follow from what we have said that the deceased’s estate falls to be distributed on the basis that he had 5 sons and 2 unmarried daughters. There is some guidance on how to go about this in Eugene Cotran’s Restatement of African Law (Volume 2), The Law of Succession, at page 8: ‘Inheritance under Kikuyu law is patrilineal.The pattern of inheritance is based on the equal distribution of a man’s property among his sons, subject to the proviso that the eldest son may get a slightly larger share. In a polygamous household, the distribution is by reference to the house of each wife. Widows, though not entitled to an absolute share of the estate, have a right to use during their lifetime of a portion of land and certain movables. Daughters are normally excluded, but may also receive a share if they remain unmarried. In the absence of sons, the heirs are the nearest patrilineal relatives of the deceased, namely father, full brother, half brothers and paternal uncles.’

According to this pattern of inheritance, the house of each wife gets an equal share of the property irrespective of the number of children in each house. A daughter who remains unmarried may be allocated a piece of land by the muramati (trustee) for use during her lifetime. On death or subsequent marriage, this normally reverts to the heir out of whose portion the land… was given. If, however, she has illegitimate children, the land is inherited by them. Since the judge did not approach the case from the Kikuyu customary law angle, the complaint in ground 3 of appeal that he disregarded it is valid and is upheld, with the result that this ground also succeeds.

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In the result, this appeal succeeds and is allowed. We now have to consider the form of the order we should make. The combined acreage of the two plots is 6.19 hectares or 15.475 acres. We order that these 2 parcels of land namely Nos Loc 6/ Githiani/127 and Loc 6/Githembe/271, be subdivided and each of the deceased’s 5 sons be given one hectare. The remaining 1.19 hectares is to be divided equally between the deceased’s 2 unmarried daughters, Nancy Gacaki and Joyce Njoki. Milka Nyambura Mubea, as the widow of the deceased, will have a life interest in the portion which she occupies and cultivates. The Land Registrar, Murang’a, is hereby ordered to give effect to this order.

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In the Matter of the Estate of Jonathan Mutua Misi – Deceased Machakos High Court probate and administration cause number 95 of 1995 (Mwera J)

CASE NO. 130

(A child born outside wedlock to a man, is, following the death of the man, a survivor and heir of the man, and is entitled to a share in his estate) A son of the deceased born outside marriage sought revocation of a grant on the basis that he was a son of the deceased, a fact which was not disclosed by the administrators in their application for grant of letters of administration. The court found that he was a surviving child of the deceased, and he was entitled to a share in his father’s estate, notwithstanding that his mother was not married to the deceased.

MWERA J: ...This issue revolves around Mutua who had a private affair with Nthenya and they had Maweu. They lived together, not necessarily by bond of marriage but then they went separate ways. But Maweu remains. His identity is clear at least on evidence presented. He is Mutua’s progeny. It cannot be expected that he should prove his dead mother’s marriage to his dead father. In sum this court concludes that Japheth Maweu Mutua is a survivor and heir to the late Jonathan Mutua Misi’s estate and he is entitled. People who said that Mutua did not recognise or acknowledge him had no evidence to that effect. Indeed their desire to claim so is clear in the circumstances. However, the grant issued need not be revoked. But it must include in the names of survivors and heirs Japheth Maweu Mutua and proceed to consider his appropriate entitlement in the estate in issue. Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

*** (e)

Rights of Daughters

The provisions of sections 35, 37 and 38 of the Law of Succession Act cater for children, and make no distinction between male and female children. Consequently, there is no discrimination or bias in the provisions against daughters, and they are entitled to share the estate of the intestate equally with the male children. Cases numbers 6, 119, 131, 132, 133, 134, 135, 136, 137 and 277 deal with the rights of daughters to a share in the intestate estate of their deceased parents. Cases numbers 131 and 132, although decided after the Act came into force, do not conform with sections 35, 37 and 38 of the Act, as the judges in the two matters appear to hold that daughters, especially married daughters, do not have a share in the intestate estate of their parents. Cases numbers 134 and 137 correctly state the position that daughters, especially those who are married, who do not wish to take up their share in the intestate estate of their parents are at liberty to renounce or disclaim their right to succession.

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In the Matter of the Estate of Kamau Mwangi (deceased) Nairobi High Court succession cause number 1579 of 1994 (Osiemo J) (A married daughter should be satisfied with whatever share she gets from the estate of her deceased father) CASE NO. 131

The applicant, a married daughter of the deceased, sought a review of a confirmation of the grant, on the grounds that not all the parties interested in the estate had consented to the confirmation and that the applicant was given a share which was smaller than that given to the sons.The respondent argued that a married daughter was not entitled to a share equal to that of the sons. The court held the share to the applicant, being a married daughter, was sufficient share.

OSIEMO J: The application is based on the ground that there are mistakes on the face of the record in that the applicant was not present when the grant was confirmed and that there was no consent by all the interested parties as required by section 37 of the Act and rule 40(8) of the Probate and Administration Rules. Counsel for the applicant further submitted that what was in court purporting to be consent was a letter from the Chief, which shows the mode of distribution of the estate, which gave the applicant less land than others while land was to be shared equally between the heirs.

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The first respondent who submitted on his behalf and on behalf of the rest of the family opposed the application and stated that the distribution was in accordance with the wishes of his late father and his mother. All the heirs attended the Chief ’s meeting and agreed on the mode of distribution and that is what was contained in the Chief ’s letter, which they filed in court. He further submitted that the applicant is a married daughter and could not be entitled to a share equal to the sons. She was satisfied with the share she was given, and had consented to the confirmation of the grant and she was present when the same was confirmed. The applicant was given 1.7 acres initially; she was added 0.56 and another 1.5 acres. In all she was given 3.76 acres. and as a married daughter what was given was more than adequate, she had left her first husband after our father had died, and has since married another man called Karugu with who in she has 3 issues whose names he gave as Catherine Mugune, Wanjiku and Martin Karugu. He urged the court to dismiss the application.

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Having considered the application as well as the submissions by counsel for the applicant and the respondent, I am satisfied that the applicant as a married daughter was given sufficient provision from the estate of her deceased father and I see no good reason to interfere with the grant as confirmed.44 In the Matter of the Estate of Mutio Ikonyo (Deceased) Machakos High Court probate and administration cause number 203 of 1996 (Mwera J) (A married woman is not entitled to a share in the estate of her deceased father even in cases where the father died after the Law of Succession Act came into force)

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CASE NO. 132

The grandsons of the deceased, who had died in 1988, obtained representation to the estate of their deceased grandfather. They disclosed that the deceased was survived by their father, it was however not disclosed that there was another surviving child of the deceased, a daughter. She protested to the proposed confirmation of the grant on the ground that she was an unmarried daughter of the deceased, she was interested in the estate, and she should have been considered in the proposed distribution.The court recorded oral evidence, and found that she had married someone, but led no evidence at all to support the allegation that she was divorced from the man. It was held that under the relevant customary law she was not entitled, being a married woman, to a share in her father’s estate, since only unmarried daughters could inherit under that law.

Mwera J: So the question is, is the objector Mutanu Mwanzia entitled to be coadministrator or even beneficiary in the estate of the late Ikonyo? None at all. She was married to Mwanza Nzuki and it has not been shown here that that marriage ended in a divorce as she claims. Her own brothers testified that they received dowry from Mwanza. Mwanza and Mutanu never divorced so that dowry was returned. In that case Mutanu is still the wife of Mwanza and even those are the names she brought her objection in. She is a Mkamba by tribe and she knows the Kamba customary law that only unmarried daughters or those divorced (and dowry returned) can claim 44

The tenor of this ruling favours customary law. The deceased died in 1987 and his estate fell for distribution in accordance with the provisions of the Law of Succession Act, customary law was of no application at all. Although the applicant raised several pertinent issues; lack of consent by all the parties and that she was not invited to attend court when the matter came up for confirmation of the grant, these were apparently not considered by the court. The court appeared to content itself with finding that she was a married woman who got a share of her father’s estate when in customary law she was not entitled to such a share. Moreover, the court appeared to give undue weight to the adequacy or sufficiency of the provision to the applicant. The court was not considering an application for reasonable provision where the issues of sufficiency and adequacy are of primary consideration. Under the intestacy provisions the estate of the deceased ought to be shared equally amongst his children regardless of their gender and marital status. It would appear that the court’s decision is bad. It is unfortunate that the court did not cite case law or the statutory provisions it relied to reach its conclusions. A decision such as this would appear was made based, not on the law, but the opinion of the court founded on general knowledge.

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to inherit. She did not show this court that she was ever divorced and dowry was returned. Martin Ngene (DW1) who lived in Nairobi until 1989 claimed that she was divorced in 1972. He did not know when dowry was returned to Mwanza. He was not present. Accordingly his evidence was not useful. This court heard that the objector who lives on her husband’s family land attends with her children, their clan meetings that is Mwanza’s. That if she was indeed divorced Ikonyo could have given her land or left such instructions before he died. He did not. So Mutanu only came home after a domestic difference and although she lives apart and away from Mwanza, her right to land with her children is not on the estate of Ikonyo. Evidence in this otherwise family dispute is overwhelmingly in favour of the parcels numbers 465 and 473 going to the 3 applicants and this court orders so. The objection by Mutanu Mwanza is overruled.45

45

The decision of the court was plainly wrong. With respect, the judge did not base his conclusions on any case law, or statutory provision or cite any treatise on the subject. The deceased died in 1988, long after the Law of Succession Act had come into force in 1981. Part V of the Act, dealing with intestacy, is very clear: that all the children of the deceased (whether male, female, married, unmarried, divorced, or born within or outside wedlock) are entitled to a share in the estate of their deceased parent. If the court had brought its mind to bear on the provisions of Part V, especially sections 32, 33, 35, 37, 38, 40, 41 and 42, it would not have come to this unfortunate conclusion. It is not clear from the ruling the legal basis upon which the court came to this finding.This was a seven page ruling, and it is rather unfortunate that the court did not cite a single precedent to support its decision; neither did it refer to any relevant statutory provision. This is a dangerous approach to writing rulings and judgements, since it creates the impression that the decision of the court is not based on law but on the opinion of the court founded on general knowledge. It bears repeating that judges of the High Court should always have it in mind that they preside over a court of record, and their decisions must be based on the law – the evidence of this should be a liberal citing by the court of the relevant case law and statutory provisions.

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In the Matter of the Estate of Gathima Chege (deceased) Nairobi High Court succession cause number 1955 of 1996 (Kamau J) (Daughters, whether married or not, are entitled to share in the estate of their deceased parents, as well as the right to participate in the administration process. In some cases it is more prudent, where a case for revocation of grant is made out, to revoke the confirmed grant rather than the main grant)

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CASE NO. 133

This was an application for the revocation of a confirmed grant of letters intestate. The grant was initially obtained by the widow and one of her sons, and upon the widow’s demise her place was taken by one other son. In the petition the daughters of the deceased were not disclosed as they were considered married and therefore not entitled to a share in the estate. Likewise at the stage of confirmation, they were also not considered. The court found that the deceased having died in 1996 and hailing from Murang’a district the Kikuyu customary law did not apply to his estate. It was also found that by virtue of sections 35, 40 and 41 of the Law of Succession Act the estate of the deceased should devolve upon all his children, including daughters, even if married. The court found that this was a proper case for revocation of the grant under section 76 of the Law of Succession Act, but instead of revoking the grant and getting the parties to start the process afresh, it proceeded to annul the confirmation process.

KAMAU J: I have carefully perused the pleadings and including the petition for grant, supporting affidavit, filed consents and other supporting documents as they relate to this present application. The said pleadings disclose, and it is not disputed, that the applicants were not included or considered because it was presumed that as married daughters, they are not entitled to inherit the estate of the deceased. The said applicants did not consent to both the issuance of the said grant nor to its subsequent confirmation, as required under the mandatory provisions of rules 26 and 40(8) of the Probate and Administration Rules, Law of Succession Act (Chapter 160). It is furthermore not disputed that the administration of the estate of the deceased is governed by the provision of Law of Succession Act as clearly provided under section 2(1) thereunder. The deceased hailed from Murang’a District and thus the exclusion provisions of section 32 of the Law of Succession Act do not apply whatsoever. The deceased was survived by a spouse and children and the distribution of his net intestate estate is governed by the provisions of section 35 of the Law of Succession Act. The surviving spouse subsequently passed away on 22 March 1999. In this particular case therefore the applicable provision governing distribution is set out under section 35(5) which reads:

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‘Subject to the provisions of sections 41 and 42 and subject to any appointment or award under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, remarriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.’

The Law of Succession Act does not distinguish as to which category of the surviving children of the deceased are entitled to inherit the net estate. All children of a deceased person whose estate is governed by the provisions of the Law of Succession Act are therefore without any shadow of doubt entitled to not only participate in the entire process of applying and obtaining the grant of representation, but also inherit on equal footing irrespective of gender, age or marital status. This lack of distinction in the recognition of equal right to inheritance by all the children of the deceased irrespective of gender, age or marital status is emphasised through out the length and breadth of the Law of Succession Act and in particular sections 38, 40 and 41 of the said Act. It should be recalled that the genesis of the Law of Succession Act is the report made by the Commission on the Law of Succession in Kenya in 1968 and which report expressly stated in its recommendation number 33 that there should be no form of discrimination or distinction on matters connected with right to inherit and in particular on grounds of gender or marital status and that all children of a deceased person are inherently entitled to inherit the estate irrespective of any such considerations. I shall say no more, but re-endorse these very progressive recommendation.

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In the circumstances therefore, the applicants herein, even though married and settled elsewhere, were entitled to not only fully participate and be involved in the succession proceedings but also inherit the estate of their deceased father. I find, and it is not disputed, that the applicants did not consent to the petition for grant, were not disclosed in the affidavit in support of the said petition, were not disclosed in the application for confirmation of grant and consequently were not incorporated and included in the amended certificate of confirmation of grant made on 9 May 2000. I find therefore that the applicants have properly brought this application under section 76 of the Law of Succession Act, which provides inter-alia that: ‘A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion,…’

Upon specific grounds listed thereunder. The said application for revocation of grant may be commenced at any time meaning that such an application may be commenced long after the estate of the deceased has been distributed, consequences thereof notwithstanding. The said application may be brought by any interested party. In this instance, the applicants are not merely interested parties, but also children of the deceased entitled to the right title and interest of the net intestate estate of the deceased. Upon the respondents having deliberately or otherwise failed to obtain the consents of the applicants while making the application for confirmation of grant and rectification thereof, I find that the proceedings to obtain the said confirmed grant were defective in substance. upon the respondents also having failed to disclose the applicants and their respective right title to the estate of the deceased while making the application for confirmation of grant and its subsequent confirmation (the fatal defect in procedure thereof notwithstanding) as required under section 71(2) proviso, I find

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that the said confirmed grant as rectified was obtained fraudulently by concealment from the court of something material to the entire succession proceedings. In the interest of continuity in the administration of the estate of the deceased and considering that the surviving spouse is now deceased I decline to revoke the main grant as made and confirmed to the now deceased surviving spouse, but order that the said rectified confirmed grant to the respondents be and is hereby revoked. I further therefore order the respondents do commence fresh proceedings for confirmation of grant issued to them and at any rate within the next fourteen days hereof so that in the absence of a family agreement, the said application shall be made for the vesting of the net intestate of the deceased unto all the children of the deceased namely Joseph Chege Gathima, John Wanjie Gathima, George Kirubi Gathima, Regina Wanjiku Gathima, Pennine Waiyego Gathima, Hellen Waithera Gathima, Joyce Muthoni Gathima, Lilian Nyambura Gathima and Anastacia Wangeci Gathima as tenants-in-common in equal shares absolutely.The upshot of this finding is that all the transfers or conveyance of the net intestate estate of the deceased made in pursuance of the now revoked confirmed grant to any of the children of the deceased are hereby revoked and set aside and the respective registrars are forthwith hereby directed to rectify the registration records to read the name of the deceased for distribution de novo as ordered herein In the Matter of the Estate of Mariko Marumbi Kiuru (deceased) Nairobi High Court succession cause number 2011 of 1997 (Ang’awa J) (All the children who survive the deceased, including daughters, should inherit the land making up the estate, but the daughters may renounce their right to the land if they so wish)

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CASE NO. 134

The dispute was on the mode of distribution of the estate between the two houses of the deceased intestate polygamist who died in 1997. The court, after identifying the assets making up the estate and the persons who survived the deceased and entitled to a share in the estate, stated that the estate was to be shared out in accordance with sections 40 and 41 of the Law of Succession Act, all the children of the deceased were to get an equal share in the estate (including daughters), and daughters are entitled to a share unless they renounce their right. The court postponed the decision on apportionment of the estate pending the disclosure of all the children of the deceased, especially the daughters.

ANG’AWA J: …They also had daughters…the Law of Succession Act takes into account women in the distribution of the estate. Unless there is renunciation of the estate the daughters to the deceased whether married or not are entitled to the estate. The daughters must indicate whether they are married or not on Form P and A

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5…I hereby hold that the 13 survivors (including the unmarried daughters) are the survivors to the deceased estate.Their names requires to be disclosed together with the fact as to whether they are married or not. Any renouncement may be filed…The law requires all the children who survive the deceased should inherit the land including daughters. In order to do the apportion to the property I require to have the names of the survivors not named together with their renunciation if any. I hereby defer this decision until the same is done. Namely each child is to get equal share of the said deceased property subject to renunciation and or any undisclosed information. In the Matter of the Estate of Grace Nguhi Michobo (Deceased) Nairobi High Court succession cause number 1978 of 2000 (Koome J) (The Law of Succession Act does not discriminate against daughters. Under the Act all the children of the deceased are entitled to a share in the estate of their deceased parent)

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CASE NO. 135

A married daughter filed an affidavit in protest to a confirmation application on the grounds that she had not been included in the distribution of her father’s estate. Her brothers countered by saying that as a married daughter she was not entitled to inherit her father’s estate as per customary law, as she was expected to inherit from her husband’s side of the family. It was held that the intestacy provisions in the Law of Succession Act do not discriminate between sons and daughters, and the marital status of a daughter is no bar to their inheritance from their father’s estate.

KOOME J: The deceased herein died on 12 August 1987. According to the petition for grant of Letters of Administration in the subordinate court she was survived by the following children: Wallace Gichuru Michobo, Samuel Ngugi Michobo, Francis Muiruri Muriu, Peter Gitau Muriu and Violet Nyamwiya. The grant of Letters of Administration was issued to Wallace Gichuru Michobo on 4 March 1997. Phylis Njambi filed a Summons for Revocation before this court on 13 September 2000 seeking for the revocation of the grant issued in Succession Cause number 124 of 1992 Kiambu on the grounds inter alia that the same was obtained fraudulently through concealment from the court of material facts. By a ruling made on 19 February 2002, Honourable Rawal J directed that the administrator should file a fresh application for confirmation of grant with a further affidavit explaining why he failed to include Phylis Njambi. According to the affidavit by the administrator which he filed pursuant to that ruling, he included the following other beneficiaries: Phylis Njambi Njuguna (married), Ruth Wambui Gathuri (married) and Bell Wanja (married) deceased It is quite obvious that the administrator of the deceased estate has no intention of distributing the deceased estate to his married sisters. This position is supported by the deceased 3 other sons who argue that the applicant is a wealthy woman with

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numerous properties in land and building, and who should therefore not pursue a small share from the deceased estate. Apart from merely making sweeping statements that Phylis is a wealthy woman, there is no evidence produced to show that she owns the properties alleged. It is also not clear whether the property said to belong to Phylis is her own free property acquired through her own industry and effort and or whether it is her husband’s. If Phylis were to be excluded merely because she has her own property, the same case would have to apply to all the beneficiaries. Their independent wealth would be investigated and the distribution is done according to their other wealth acquired independently. Since independent wealth of other beneficiaries is not being considered, it would be unfair to subject Phylis to this consideration alone. Having said that, the other connected issue is that Phylis is married. It is also not disclosed whether she has acquired that alleged property with her husband or inherited from her husband. Supposing the husband divorces her, or throws her out of that property if it is in his names? The other concern is also brought about by section 35(1)(b) whereby if she had inherited property from her husband she holds a life interest in the whole residue of the net intestate estate. In my humble opinion, Parliament must have made consideration to all the above matters and therefore found it necessary not to make any distinction between male and female child as regards inheritance. All children of the deceased are treated equally their gender notwithstanding. Accordingly unless a married daughter has willingly renounced her rights, she cannot merely be left out of her parents’ estate. I have given due consideration to the provisions of Chapter 160 Law of Succession, which commenced on 1 July 1981 and according to section 2(1) the application of the Act.

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“Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and the administration of estates of those persons.”

The estate of the deceased should be administered according to Chapter 160. She passed away on 12 April 1981.When the Act was in operation. Is property LR number KARAI/GIKAMBURA/562 a free property of the deceased. According to the copy of the proprietorship section this property was registered in favour of the deceased on 20 September 1965 pursuant to a Succession Cause from her deceased husband Amos Michobo. The deceased was registered as an absolute proprietor. According to the encumbrance section there is no indication that she was holding the property in trust for her male children according to Kikuyu Customary Law. The same title is shown to have been used as collateral to secure borrowings between 1967 to 1974. I find the argument that this title cannot be distributed under the Law of Succession Chapter 160 far fetched and without basis. This is an intestate estate, and the properties for distribution are duly registered under the Registered Land Act. In this regard the deceased estate should be distributed according to Section 35(5) of the Law of Succession.There is no reason or justification that I have found to exclude Phylis Njambi or to allocate the estate ofViolet Nyamwiga a smaller share than the other beneficiaries. The Law of Succession does not provide

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for any discrimination on the basis of the beneficiaries gender. All the children of the deceased are treated equally unless the child has willingly renounced their interest, they cannot be left out or denied their inheritance merely because of their marital status. It is most likely that even the male children are married but they are not being discriminated on that basis. If this court were to lock out Phylis Njambi from inheriting her mothers estate on the grounds based on her gender and marital status, this would go against the very grain of equal treatment of all human beings before the law which is a fundamental right under our Constitution. It will also be against the principals (sic) of equality and elimination of discrimination against women as expanded in the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) which Kenya signed and ratified in 1984. Another issue of curiosity to note is that according to the proposed distribution by the administrator, Violet Nyamwiga’s is allocated a portion of parcel number 562 which indeed is supposed to be ancestral land held in trust for male children. On the other hand they argue that this parcel of land was held in trust for the male children. This is a clear contradiction. In conclusion therefore I find there is justification in interfering with the proposed distribution which should be in accordance with section 35(5) of the Law of Succession. The deceased two parcels of land should be divided equally among the beneficiaries who have not renounced their interests. The grant of letters of administration may be confirmed and the two parcels of land to be shared equally among the deceased beneficiaries who have not renounced their rights. In the Matter of the Estate of the Late Wanjihia Njuguna (Deceased) Nairobi High Court succession cause number 533 of 2002

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CASE NO. 136

(Ang’awa J) (Under section 35 of the Law of Succession Act the estate should be divided amongst all the children of the deceased, including daughters, in equal shares) Facts are set out in the ruling.

ANG’AWA J: ...The deceased was aged 88 years when he died on 10 October 2001 suffering from asthma. I am informed by their advocate that a grant was issued on 30 April 2002 (Khamoni J). The same be confirmed. I noted that section 35 had not been complied with. The advocate filed an amended Summon for Confirmation of grant giving the widow a life interest ½ and the rest of the immovable assets to be divided equally amongst the son and daughterin-law. Section 35 provides that the children include the female children; I hereby give to the advocate to disclose the daughters, if any. If they do exist a renunciation is required by them of the estate. This grant is not confirmed.

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In the Matter of the Estate of Mary Wanjiru Thairu (Deceased) Nairobi High Court succession cause number 1403 of 2002 (Ang’awa J) CASE NO. 137

(Under section 38 of the Law of Succession Act, all the children of the deceased, including daughters, are entitled equally to the estate of their deceased parent. The daughters, if they are not interested in the estate, should file a disclaimer or renunciation of their rights to the estate) Facts are set out in the ruling.

ANG’AWA J: …The deceased was a female adult aged 71 years old as at 29 January 2001. She died intestate and left surviving her one son and six daughters… The son has now come by way of application dated 17 February 2003 seeking for the confirmation of the grant of letters of administration intestate. According to this application the apportionment of all the shares of the deceased property devolves to him. The Law of Succession Act Chapter 160 Law of Kenya provides at section 38 that where both spouses are dead the assets of the deceased devolve to the child or children equally. It thus follows that the six daughters have not been included in this apportionment as required. If the six daughters are not interested in the estate they require to file a renunciation in order to put on record that they do not wish to have their entitlement. I hereby reject this application.The applicant is to file a fresh application complying with section 38 of the Law of Succession Act Chapter 160 Laws of Kenya. ***

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(f)

Bringing Property to the Hotchpotch

For the purpose of achieving equity in the distribution of an intestate’s estate, it is necessary when the court is handling distribution upon intestacy to consider previous and other receipts of property by any interested party either from the deceased or from his estate. What should be brought in should include; inter vivos gifts and transfers, gifts in contemplation of death, property appointed during life interest, and any property awarded to any party by the court.The Law of Succession Act does not have provisions on this, but the issue is dealt with in case law as is demonstrated in case number 138.

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Teresia Wambui Maruhi v Onesmus Maina Maruhi and another Nairobi High Court civil appeal number 3 of 2002 (Kamau J)

CASE NO. 138

(Where the deceased had distributed some assets intervivos such assets or property, though not forming part of the estate of the deceased, ought to be brought to the hotchpotch and taken into account in distributing the intestate estate of the deceased) The appeal related to an asset that had been gifted to one of the beneficiaries during the lifetime of their father.The issue was whether the said asset formed part of the distributable asset of the deceased. The court found that it did not since it was a gift intervivos, however the court held that under section 42 of the Law of Succession Act a gift intervivos must be brought to the hotchpotch and taken into account in distributing the estate of the deceased.

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KAMAU J: It is not disputed that the second respondent who is the mother of Onesmus separated with the deceased many years ago and that she is therefore not a widow of the deceased. At is also admitted that the deceased did contract a valid statutory marriage with the appellant years after the said separation. Is not also disputed that while the customary marriage between the deceased and the second respondent subsisted, they begot two children namely Onesmus and Lillian Gathoni.The said second respondent did not attend court to oppose the appeal suit or otherwise challenge the findings of the lower court. It is not also in dispute that the deceased died intestate and that administration of his estate is governed by the provision of the Law of Succession Act (Chapter 160). To that extent, ground four and five of the appeal succeeds. Upon reading and evaluating and scrutinising the evidence tendered in the lower court and upon hearing the submissions made in respect thereof, I make the following findings: As regards Title number Loc. 14/Kiru/1870 what came for consideration was whether the said property was gifted to Onesmus by the deceased. Onesmus has in his testimony in the lower court and his submission herein admitted that the said property was gifted to him by his paternal grandmother. The second respondent (mother of Onesmus) has in her testimony in the lower court admitted that the said property belonged to the deceased but that it was duly gifted to Onesmus by the deceased during his lifetime. DW2 (called by Onesmus) has similarly testified that the said property was gifted by Onesmus by the deceased during his lifetime. During his submission, Onesmus was unable, upon being questioned, to explain the history of the registration records of the said property. The registration records are hazy and appear to have been tampered with, and nowhere does the name of the paternal grandmother of Onesmus appear. I can only come to one conclusion, and that is, the said property was duly gifted by the deceased during his lifetime to Onesmus. I can only assume the deceased executed the said gift to Onesmus as stepson of the appellant as part of settlement during lifetime for purposes of providing greater protection and security

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to a son abandoned at tender age by his mother, the second respondent herein. the evidence of the said gift inter-vivos has sufficiently been corroborated as required, by the evidence of the second respondent and that of DW2, and also by the execution of instrument of transfer in favour of Onesmus. States Halsbury’s Law of England (4 ed) Volume 20 at page 3 paragraph 2: ‘A gift inter-vivos may be made in any of the following three ways: (1) by deed or other instrument in writing; (2) by delivery in cases where the subject of the gift admits of delivery; and (3) by declaration of trust, which is the equitable equivalent of a gift.’

Halsbury continues at page 12 paragraph 15 and states: ‘A gift alleged to have been made by a deceased person cannot, as a general rule, be established without some corroboration.’

Such corroboration according to Halsbury may be supplied by evidence of some other person. This I believe has expressly happened in this case vide the testimony of the second respondent and that of DW2 who was called by Onesmus. Onesmus has also duly acknowledged delivery of the said gift though according to him as having been made by his paternal grandmother, the mother of the deceased. I hold therefore that the transfer of Title number Loc 14/Kiru/1870 to Onesmus during the lifetime of the deceased constitutes a gift inter-vivos and hence should be brought into hotchpotch for purposes of distribution of the net intestate estate of the deceased as provided under section 42 of the Law of Succession Act which reads: ‘Section 42 Where-an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or property has been appointed or awarded to any child or grandchild under the provisions of sections 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.’

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The appellant thus succeeds on ground one of her appeal. How then shall the said net intestate estate of the deceased be distributed? It is not disputed that the deceased had settled Onesmus on Tile number Loc 14/Kiru/2059 for his exclusive usage. It was also agreed during the submissions that the deceased was survived by two customary households viz that of the second respondent made up of two children and that of the appellant made up of seven children (Nancy Wanjiku included) considered eligible to inherit. Since the second respondent is not an heir of the deceased and since all the other children of the appellant are not interested in inheriting the said estate of the deceased, it was agreed that in consideration of the provision of section 40 of the Law of Succession Act (Chapter 160) Hanna’s household would be entitled to a fraction share of 1/5 of the net intestate estate and that of Teresia, 4/5 of the net intestate estate.The total acreage of the land belonging to the deceased and including that of the land now brought into hotchpotch is as follows: 1.

Title number Loc 14/Kiru/2059 – 2 acres

2.

Title number Loc 14/Kiru/3262 – 9 acres

3.

Title number Euaso Nyiro/Suguroi/Block III/469 – 4 acres

4.

Title number Loc 14/Kiru/1870 – 1.3 acres Total - 16.3 acres.

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Out of the total acreage Hanna’s House is thus entitled to approximately 3.2 acres whereas Teresia’s House is entitled to approximately 13.0 acres. I therefore hereby order that the said grant of letters of administration be confirmed accordingly so that (a) Onesmus on his own behalf and that of his mother’s Household shall be registered as the proprietor of Title number Loc 14/Kiru/2059 while the also bringing Title number Loc 14/Kiru/1870 into hotchpotch, (b) Teresia Wambui Maruhi shall be registered as tenant for life for on behalf of her said seven children entitled thereafter absolutely in equal share in respect of Title numbers Loc 14/Kiru/3261 and Euaso Nyiro/Suguroi/Block III/469. The upshot of the foregoing is that the appellant also succeeds on ground three of her appeal. The judgment of the lower court is accordingly varied and set aside for confirmation of grant by the said lower court upon the findings herein. It is hereby further ordered that the lower court’s file in Succession Cause number 63 of 2000 be remitted to the said lower court for final determination as ordered herein. In consideration of the findings herein I order that each party meets its own costs of the appeal. *** (g)

The Life Interest is held in Trust by Surviving Spouse for Benefit of the Children

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The property over which the surviving spouse holds a life interest does not pass absolutely to the surviving spouse. Instead, it is held by such surviving spouse in trust for the children of the deceased. Such trust, by virtue of sections 35(1) (5) and 38 of the Law of Succession Act, determines upon the death of the surviving spouse or the remarriage of the widow. Case number 139 states the legal position regarding the rights of children over property which is subject to life interest. Case number 246 demonstrates that upon the remarriage of a widow the life interest determines and the property passes directly to the children.

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In the Matter of the Estate of Basen Chepkwony (Deceased) Nairobi High Court succession cause number 842 of 1991 (Koome J) (A surviving spouse holds property under section 35 of the Law of Succession Act for the benefit of the children, and therefore the property held under life interest cannot be transferred absolutely to the name of the surviving spouse. The court can on its own motion transfer a matter pending before it from one station to another where it can be dealt with more conveniently)

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CASE NO. 139

The first widow obtained a grant without disclosing to her co-wife and her children. She also, upon obtaining grant, had the property registered in her by name as sole proprietor. The court held that under section 35 of the Law of Succession Act the widow, enjoying a life interest in the property, holds the property in trust, and the same should not be transferred to her absolutely. The court found that the grant was obtained fraudulently and unprocedurally and proceeded to revoke it. The court also directed that the matter be transferred to Eldoret where the property was situated as it was likely to be more conveniently handled from there.

KOOME J: The applicant therefore complains that the transfer of the title absolutely to the second wife was in contravention of section 35 of the Law of Succession Act whereby the widow is entitled to a life interest but in this case the widow was registered absolutely and the other beneficiaries including her children are vulnerable. The other complaint by the applicant was that her consent was not sought and in this regard therefore the Public Trustee failed to comply with rule 40(3) by leaving out the applicant and her children and further rule 40(8) whereby the written consents in form 37 of all the dependants or other persons who may be beneficially entitled should have filed their consent and or allowed to make an intervention. I have considered other materials raised by counsel for the applicant regarding, failure to disclose the existence of the applicant and her children as well as failure to obtain the consent by the first widow’s son who was of age one Shad rack Kiprotich born in 1970. The P and A rules are clear on the procedure to be followed before the grant is confirmed.The particulars of the first wife and her children should have been disclosed as per the provisions of rule 40(3) of the P and A rules. Moreover, all the dependants of the deceased and other persons who may be beneficially entitled ought to have been notified so that they can renounce their rights and give consent or be at liberty to file an affidavit in protest as provided for under rule 40(8) of the P and A rules. My other problem with the cause is to do with the title of the deceased property which was transferred absolutely to the first wife. The counsel for the Public Trustee conceded that this was an oversight and the transfer was properly drawn.

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In view of the above findings, I am satisfied that the grant made to the Public Trustee should be revoked and all the consequential transactions effected pursuant to the said grant. Counsel for the applicant submitted that he had no problem with another grant being reissued to the Public Trustee as whatever mistake that occurred was due to the fact that they were misled by the first wife. Accordingly, another grant may be issued to the Public Trustee. Since this matter involves parties who reside within the jurisdiction of the High Court Eldoret, it will be convenient if the matter is transferred to the High Court Eldoret. ***

8.5 RIGHTS

OF OTHER

RELATIVES

OF THE

DECEASED

In intestate succession, no other relation of the deceased takes from the estate so long as there is a surviving spouse or surviving child. Any relation of the deceased wishing to benefit from the intestate estate of the deceased must in the circumstances move the court under section 26 of the Law of Succession Act for provision out of the estate. The rights of other relatives are set out in section 39(1), which states as follows:

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‘39(1) Where an intestate has left no surviving child or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority: (a)

Father; or if dead

(b)

Mother; or if dead

(c)

Brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none

(d)

Half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none

(e)

The relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.’

Section 36(3) of the Law of Succession Act refers to section 39, and provides: ‘Upon determination of a life interest created by subsection(1), the property subject to that interest shall devolve in the order of priority set out in section 39.’

Consequently, other relatives of the intestate can only take where there is neither surviving spouse nor surviving child. Case number 140 deals with the application of section 36(3). Cases numbers 141, 142, 143 and 144 deal with the application of section 39.

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Willingstone Muchigi Kimari v Rahab Wanjiru Mugo Nairobi Court of Appeal civil appeal number 168 of 1990 (Gachuhi, Muli and Akiwumi JJA) (Under section 3(2) of the Law of Succession Act, only a male person can take in a child into his home and accept or recognize him as his own; that aspect of the provision does not apply to a female person. Where the deceased is survived by a spouse but no children, the surviving spouse has a life interest in the property, and upon its termination the property devolves upon the relatives set out in section 39(1) of the Law of Succession Act)

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CASE NO. 140

A man applied for grant of letters of administration in respect of the estate of a woman in his alleged capacity as her husband, a grant was made and subsequently confirmed. An application for annulment of the grant was made on behalf of a minor in his capacity as the adopted son of the deceased woman. It was alleged that the fact that he was a survivor of the deceased was not disclosed. The child had not been formally adopted, but had apparently been taken by the woman. It was held that by virtue of section 3(2) of the Law of Succession Act the minor was not a child for the purposes of succession, since under that provision only a male person could informally adopt or take in a child and accept him as his own.

GACHUHI, MULI AND AKIWUMI JJA: The minor Mugo as already noted, cannot be said to have been adopted by the deceased as known to the law. Furthermore, a ‘child’ is defined in section 3(2) of the Law of Succession Act hereinafter referred to as ‘the Act’ to include in relation to a female person, a child born alive to her in or out of wedlock and only in relation to a male person and not a female person like the deceased, a child whom the male person has: ‘Expressly recognised or in fact accepted as a child of his own or whom he has voluntarily assumed permanent responsibility.’

With respect, the minor Mugo cannot be regarded as a child of the deceased as seems to have been suggested by the learned judge and neither would there be any requirement to disclose his existence and particulars in the appellant’s application for grant of letters of administration. As regards the respondent, however, section 51(2) (g) of the Act provides that an application for the grant of letters of administration shall, in the case of intestacy, include information as to the names and addresses of surviving spouses, children, parents, brothers and sisters of the deceased. It was therefore incumbent on the appellant to include, in his application, particulars of his sister-in-law. We have already expressed our views that the minor Mugo not being a child of the deceased as defined in the Act, is not entitled to the grant of letters of administration

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of the deceased’s estate or indeed to any part of it. The omission of information about him in the appellant’s application is therefore not fatal. On the other hand, the omission of information about the respondent in the appellant’s application, relates to material facts, which should not have been omitted. Furthermore, its omission is fatal to the application as its inclusion is mandatory under section 51(2)(g) of the Act. It is true that by virtue of section 51(4) of the Act the omission of such information will not affect the power of the court to entertain an application for the grant of letters of administration, but this applies only to the jurisdiction of the court to hear the application and so as not affect the validity of the application itself, for under section 76(b) of the Act, the court may revoke a grant whether confirmed or not, if the court decides that the grant had been obtained by the concealment of something material to the case. In our view, the learned judge quite rightly came to the decision that the grant made to the appellant should be revoked because it had been obtained fraudulently by the obvious concealment by the appellant of information about none other than his alleged sister-in-law. On this ground alone, the learned judge was justified in setting aside the grant made to the appellant and ordering a rehearing of the appellant’s application for the grant of letters of administration. the learned judge was also of the view that the grant made to the appellant should be revoked because of the appellant’s omission to give information in his application of the other surviving blood relatives of the deceased and which led to the ‘registration of the defendant (appellant) as the absolute ‘owner’ instead of a mere life interest holder of the deceased’s land properties to the detriment of the blood relations.’ The appellant was, as already shown, enjoined by section 51(2)(g) of the Act, to give information about the other surviving blood relations of the deceased as set out in that section. However, whilst there is evidence that the deceased had a surviving sister in the person of the respondent, there does not seem to be any evidence on record that there were other surviving relations of the deceased as described in section 51(2) (g). But the omission of any information about any of the persons listed in section 51(2) (g) may well have led to the making of the order confirming the grant of letters of administration made to the appellant, which in the circumstances should not have been made. The very certificate of confirmation of grant issued to the appellant and dated 28 April 1988 shows in its schedule the appellant to be the ‘sole heir’ having 100% shares of the four plots of land described therein . But if for the sake of argument, the appellant is the one surviving spouse of the deceased with no surviving child or children, even then, according to section 36(1) of the Act, the appellant would be entitled out of the net estate of the deceased to only: ‘(a)

The personal and household effects of the deceased absolutely; and

(b)

The first ten thousand shillings out of the residue of the net intestate state, or twenty per cent thereof whichever is greater; and

(c)

A life interest in the whole of the remainder... ’

Upon the determination of the life interest, the property involved shall devolve upon the kindred of the intestate as set out in section 39(1) of the Act and where there are no such kindred; the net estate shall devolve upon the state and shall be paid into the Consolidated Fund. It is evident that the order confirming the grant of letters of administration made to the appellant in regard to the four plots of land as ‘sole heir’ having 100% shares therein is contrary to the Act and therefore defective and cannot be a proper basis for the appellant registering the four plots in the names as absolute

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owner. On this ground also, the grant of letters of administration to the appellant must be set aside. Susan Wakabari Njiru v Caroline Wanjira Kamau Nairobi High Court civil appeal number 102 of 1994 (Amin J)

CASE NO. 141

(A daughter-in-law is entitled to a share in her father-in-law’s estate taking the share that would have gone to her deceased husband, but she takes the same in trust for the benefit of her children. Her interest in the estate however determines upon her remarriage by virtue of section 35(1) of the Law of Succession Act) The contention was whether a daughter-in-law could inherit her father-in-law’s estate, in cases where her husband had predeceased his father. The court held that she could on behalf of her children. She would, however, hold the property in trust for the children, and her interest in the estate would determine upon her remarriage by virtue of section 35(1) of the Law of Succession Act.46

AMIN J: The learned counsel for the appellant submits that ‘it is against the ruling in regard to the apportionment of the daughter-in-law that the appeal lies.’ ‘The main question is whether or not a daughter-in-law can directly inherit from her deceased father-in-law in intestacy.’ In this regard, the learned counsel makes reliance on sections 35, 26, 38 and 39 of the Law of Succession Act Chapter 160 Laws of Kenya and also Eugene Cotran for his restatement of African Law.

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The learned trial magistrate in her ruling stated the fact in this litigation thus: ‘This is a ruling on an application for confirmation of grant. The administrator Susan Wakabari Njiru is the sole surviving spouse of the deceased Njiru Githinji who died on 29 August 1993. His last place of residence was at Ithare/Kabare. He died intestate. At the time of his death he was seized of a parcel of land LR Kabare/Kiritine/26 measuring 6.1 acres or thereabouts. Letters of administration were issued to the petitioner/administratrix, on 20 April 1993. When she applied for confirmation of the grant on 20 July 1993 her prayer was that she be declared the sole heir of his estate.’

46

This holding is, with respect, not a correct interpretation of the law. In intestacy, a daughter –in-law is not entitled to her late father-in-law’s estate, as she is not a blood relative of the deceased. It is her children, who are the grandchildren of the deceased and who trace a blood relation to him, who should take a share in the estate. This is through the principle of representation or substitution, as they represent their deceased father, who, ideally, is the one entitled to take directly from their deceased grandfather. The daughter-in-law takes no inheritance at all in any capacity, but she may be appointed a trustee for the benefit of the children. The relevant rule in section 41 of the Law of Succession Act which states that a child deserves a share of the property in the estate of his or her grandparent which would have gone to his or her deceased parent..

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I have on consideration of the law cited and the facts also find that the widow of the deceased would inherit the share of her husband not for her own interest as a widow but only as a mother of the children of the deceased who were entitled to inherit and in her capacity as Trustee of the share of the beneficiaries, the three minor children. I find no merit in any of the grounds of appeal submitted and consequently uphold the Learned trial magistrate’s finding that: ‘This court is of the finding that she should get the share due to her late husband. She shall then hold that share in trust for her three children who are all minors and in case of her remarriage her interest in that land shall determine as set out in the proviso to section 35(1) of the Law of Succession Act. The Administratrix, her 3 living sons and the Protestor shall therefore get equal shares of 1.525 acres awarded to her in trust for her unmarried daughters if any. the 3 living sons will hold their respective share in trust for themselves and their families but those shares may be registered in their mother’s name if they so wish.’

Consequently the appeal dismissed. In view of the close relationship of the parties to the litigation I order each party to bear its own costs. In the Matter of the Estate of Joseph Muchiri Komu – Deceased Nakuru High Court succession cause number 441 of 1998 (Ondeyo J) (Brothers and sisters are equally entitled to the estate of a sibling who is not survived by a spouse, children and parent.Where the asset involved is land, the court has to determine whether the land is agricultural and whether customary law applies to it)

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CASE NO. 142

The deceased intestate, who was not married and did not have children, was survived by his brothers and sisters. The sisters sought revocation of a confirmed grant which did not disclose them as survivors of the deceased. The court took the view that the asset in question was land and the court needed to determine whether the said land was agricultural land, and therefore decide whether section 32 and 33 of the Law of Succession Act applied and whether the sisters would in the circumstances be entitled to a share in the estate, and directed that viva voce evidence be adduced.

ONDEYO J: The deceased was a brother of the petitioner and the applicants. He died without a wife and children. None of the applicants was listed in the petition as having survived the deceased, although a letter from the area chief which was annexed to the petition includes the applicants in the list of those people who survived the deceased. The applicants are married sisters of the deceased and according to the petitioner, at paragraph 8 of the replying affidavit, the applicants being married, will get their inheritance from their respective husbands.

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Under section 39(1) (c) of the Law of Succession Act since the parents of the deceased are dead, the estate of the deceased devolves upon the brothers and sisters of the said deceased, among others. It would appear that the applicants claim is based on section 39(1)(c) of the Law of Succession Act. They should have been listed in the petition as some of the people who survived the deceased person. In matters of intestate succession, section 32 of the Law of Succession Act provides that: ‘Section 32 the provisions of this part shall not apply to: (a)

Agricultural land and crops thereon; or

(b)

Livestock,

Situated in such areas as the minister may, by notice in the gazette, specify.’

Under section 33 of the said Act, the law applicable to the distribution on intestacy of the properties specified in section 32 above, is the law or custom applicable to the deceased’s community or tribe. The community or tribe of the deceased is not disclosed. The Death Certificate shows that the death occurred in Thika District of Central Province. It is not clear to me if the land which forms the subject matter of this suit is agricultural land in which case, the provisions of section 32 and 33 of the Law of Succession Act would apply, as this is an intestate succession. If it turns out to be that the subject land is agricultural land, then the personal law of the community of the deceased person would apply to it to determine who inherits it; in which case., the applicants, who are said to be the deceased person’s married sisters will have to prove that under the personal or customary law of their community, they would be entitled to inherit their dead brother’s piece of land.47

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What I have raised in this ruling can only be determined at a full hearing. Since section 39(1)(c) of the Law of Succession Act recognises the rights of the sisters of a deceased person who dies intestate and without a wife or children and parents, and since, the petitioner did not include their names in the petition as some who survived the deceased, and since no provision was proposed for them, and none was made when the grant was confirmed, I allow their application dated 3 March 2000 and order that the grant issued to the petitioner herein on 5 January 1999 and confirmed on 2 December 1999, be and is hereby revoked. The same shall be presented to the court forthwith for endorsement as such. This matter shall be determined on viva voce evidence to determine if the applicants who are the married sisters of the deceased are entitled to inherit part of the land in question on an equal basis with their brothers. 47

The position stated here is not the correct statement of the relevant intestacy law as set out in the Law of Succession Act. The impression created is that in the event of intestacy the estate of an African Kenyan is subject to customary law, particularly as it relates to agricultural land. This was the thinking of the Court of Appeal in Mwathi v Mwathi and another. Section 32 does not exempt agricultural land in general or agricultural land wherever situated in Kenya from Part V of the Act; it exempts agricultural land in such areas as may be stated by the minister in a gazette notice. The issue of the married sisters leading evidence to prove that they are entitled to a share of their late brother’s land should not arise if they come from an area that the minister has not exempted from Part V of the Act and their brother died after 1st July 1981. The areas exempted are specified in Legal Notice Number 91 of 1981.

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To foster reconciliation, I order that each party shall bear its own costs of this application. In the Matter of the Estate of Henry Ng’ang’a Wangendo (deceased) Nairobi High Court succession cause number 528 of 2000 CASE NO. 143

(Ang’awa J) (Where a deceased intestate has no spouse or children the next in line by way of entitlement to inherit the intestate’s estate are their parents) The facts are set out in the ruling.

ANG’AWA J: Henry Nganga Wangendo was a police officer who passed away on 9 March 1997 due to malaria as being the cause of death. He is survived by his mother only. The Public Trustee administered his estate and was issued with Letters of Administration Intestate on 2 March 2001 (Rawal J). They now come to confirm this grant and pray that the assets be given to Jane Wanjiru Wangendo the mother of the deceased absolutely. The law allows and specifically state that where the deceased has no spouse or children the next in line by way of consanguinity are the parents. I would agree the mother is the sole survivor. I hereby confirm this grant to the Public Trustee. In the Matter of the Estate of Wamuhu Murimi (deceased) Nairobi High Court succession cause number 460 of 2002

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(Koome J)

CASE NO. 144

(Where the intestate is not survived by a spouse or children or parents or siblings, their estate devolves upon any surviving child or children of the intestate’s brothers and sisters in equal shares) A niece of the deceased took out a protest to the proposed confirmation of the grant taken out by her cousin and a nephew. In the proposed distribution of the estate the niece was left out, allegedly because she was married and under Kikuyu customary law a married woman was not entitled to inherit her aunt’s estate. It was also held that the law to apply to the estate was the Law of Succession Act and not Kikuyu Customary Law.

KOOME J: The administrator gave evidence in support of the application for confirmation. He claims that he left out the protestor in the list of beneficiaries because according to him the protestor is married and should not be considered to inherit from the deceased estate. He cited Kikuyu customary law that excludes

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married daughters from inheriting from their parents. The administrator however has considered his other two sisters who have children but are not married. I have carefully considered the evidence adduced by the parties and the affidavits filed by the protestor. The protestor did not present any evidence to show that the deceased bequeathed to her the properties. The deceased died intestate and as per the provisions of section 39 of the Law of Succession which provides guidance as to how the estate where an intestate has left no surviving spouse or children should be determined. The deceased herein died in the November 1994 and thus the law applicable in the determination of her estate is the Law of Succession Act Chapter 160 and not the Kikuyu customary law, section 39(1) provides: ‘Where an intestate has left no surviving spouse or children, the net intestate shall devolve upon the kindred of the intestate in the following order of priority (a)

father; or if dead

(b)

mother; or if dead

(c)

brothers and sisters, and any child or children of deceased brothers or sisters in equal shares: of if one…’

According to the above provision the deceased estate should be shared equally among her nephews and nieces in equal shares their gender or marital status notwithstanding. Accordingly, the grant of letters of administration may be confirmed and the deceased estate shared amongst the following in equal shares: 1.

Murimi Mugecha

2.

Ruth Wamuhu Mburu

3.

Njeri Mugecha

4.

Ann Njeri Kahenya.

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This being a family dispute, each party should bear their own costs of the litigation. ***

8.6 DIVISION

OF A

POLYGAMIST’S ESTATE

Section 40 of the Law of Succession Act deals with the case of a polygamist’s intestate estate. The provision provides as follows: ‘40(1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children. (2)

The distribution of the personal and household effects and the residue of the net intestate estate with each house shall then be in accordance with the rules set out in sections 35 to 38.’

Cases numbers 6, 75, 116, 118, 145, 146, 147 and 148 deal with the application of section 40 with respect to the intestate succession to the estate of a polygamist.

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In the Matter of the Estate of Mwangi Giture (Deceased) Nairobi High Court succession cause number 1033 of 1996 (Koome J) (The property of a polygamist intestate, dying after the Act came into force, is divided as per section 40 of the Law of Succession Act)

CASE NO. 145

The administrators placed rival proposals before the court for confirmation. One side proposed distribution in accordance with section 40 of the Law of Succession Act, while the other proposed equal distribution between the two houses, a position akin to that in customary law. The court held that the deceased having died after the Act came into force the applicable law was section 40 of the Law of Succession Act.The court further pointed out that the requirement that the widow be added to the household as an additional unit to the children was unfair to the first wife since she gets treated equally with the latter wives who often come into the picture after the man had acquired all the property, which makes up the estate, often with the support of the first wife.

KOOME J: The deceased in this matter died on 29 February 1996. He was survived by the following: first widow and 4 daughters and the second widow with 8 children.

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The deceased estate is governed by the provisions of the Law of Succession Chapter 160 whose date of commencement is 1 July 1981. Section 2(1) of Chapter 160 provides as follows: ‘except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to all cases of intestate or testamentary succession to the estate of the deceased persons dying after the commencement of this Act and to the administration of the estates of those persons.’

According to me therefore, the law applicable is Chapter 160 and section 40 thereto that deals with a polygamous intestate. I understand the submissions of the first widow regarding equal sharing but in this respect the law is clearly set out and there is no way the court can disregard the provisions of the law and apply customary law in the fact of a written statute. Perhaps it is the high time; the commission charged with the responsibility of law reform addressed the issue of the inequality raised under section 40 of Chapter 160. The first widow’s entitlement vis a vis the second widow or subsequent widow who perhaps come into a marriage much later to find that the first widow has worked tirelessly and sometimes denying herself tremendous comfort to enable her husband create and accumulate wealth.The first widow is then relegated to the same position by virtue of section 40 of the Law of Succession to the same position as the last born child of the second or subsequent widows. The widow is supposed to be considered as unit alongside the children.

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In this regard the last born child of the subsequent widow who will have contributed nothing is elevated in law because he will have not only The first widow is only entitled to a life interest and after the life interest the property devolves to her children in equal shares absolutely. I agree with counsel for the protestor first widow that this state of affairs bleeds inequalities and inequities in law and ought to be addressed urgently to enable our courts dispense justice that meets the provisions of the Constitution of Kenya and give due regard to the principles of non-discrimination on the basis of sex which are also the principles of non-discrimination provided for under the international conventions, especially the Convention Against all forms of Discrimination Against Women (CEDAW) which Kenya has signed and ratified. If the principles laid down in the international conventions were to be applied, the first widow would get a share of the property acquired during her marriage to the deceased, leaving the other half share to be shared by all the deceased heirs. If the distribution is of a polygamous intestate, each widow would get a share of what she contributed. In the present case, the law to be followed here, in regard to the deceased estate is section 40 of the Law of Succession. In the Matter of the Estate of Erastus Gakobo Chege (deceased) Nairobi High Court succession cause number 711 of 1998 (Waweru J) (Where the deceased was a polygamist his intestate estate is divided in accordance with section 40 of the Law of Succession Act, taking into account the number of children in each house)

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CASE NO. 146

The deceased was a polygamous intestate. Grant of letters of administration regarding his estate was made to his two widows. The two administrators were unable to agree on the mode of distribution, one asking for equal division of the estate, while the other taking the position that that would not be fair. She filed an affidavit of protest to the latter’s application for the confirmation of grant. It was held that the division of a polygamist’s estate should be in accordance with section 40 of the Law of Succession Act, where cognition is taken of the number of children in each house.

WAWERU J: This is a simple dispute to resolve. There is statutory guidance given in section 40(1) of the Law of Succession Act, Chapter 160, which is in the following word: ‘40(1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.’

Crotida’s house has three members, while that of Elizabeth has eight members. It is immediately obvious that the counter-proposals of Elizabeth are the more just. In fact

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she is being quite generous to Crotida’s house. I agree with her that the proposals by Crotida will be quite unjust to Elizabeth’s house. I will therefore order that the estate of the deceased shall be distributed as proposed by Elizabeth in paragraphs 4 and 5 of her affidavit of protest sworn on 4 July 2001.The grant will be confirmed in those terms. It is so ordered. Parties shall bear their own costs of these proceedings. In the Matter of Joseph Kimemia Gichuhi Nairobi High Court succession cause number 1072 of 2002 (Koome J) (The distribution of a polygamist’s estate upon intestacy follows section 40 of the Law of Succession Act, the property is divided among the houses according to the number of children in each house, but adding any wife surviving the deceased as an additional unit. Where there are minor children, section 41 will be applied and their property is to be held in trust until they reach eighteen)

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CASE NO. 147

The matter turned on the disclosure of the fact that the deceased died a polygamist and that his first wife had predeceased the deceased leaving a child who was being cared for by the applicant in the summons for revocation of grant. The court found the facts relating to these matters were not disclosed and that subsequently the grant and its confirmation were not properly procured and the grant was revoked. The confirmation process in the opinion of the judge ought to have taken into account section 40 of the Law of Succession Act on the division of polygamist’s estate and section 41 of the Law of Succession Act on the devolution of property to a minor.

KOOME J: I have given due consideration to the material presented to me for and against the application for revocation as well as the submissions by both counsel. The distribution of the intestate estate where the deceased was polygamous is provided for under section 40 of the Law of Succession Act which clearly gives guidance on how the estate should be divided among the houses and according to the number of children in each house, but adding any wife surviving him as an additional unit to the number of children. The other relevant section to consider is section 41 of the Law of Succession Act in regard to the property which devolves upon a child or children who are minors. The property shall be held in trust until the child attains the age of eighteen years. Following the above provisions, it is clear that the grant was confirmed contrary to the provisions of the law. The share of the child of the first house ought to have been identified and held in trust for him. The way the grant was confirmed, there is

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real danger that the petitioner against whom the absolute rights over the property was vested, to enable her sell the assets, might indeed dispossess the child from the 1st house. If the petitioner had disclosed the deceased’s assets in the schedule of the application for confirmation, the only issue would have been the distribution and determination of the share of the minor.This is however compounded by the fact that all the assets of the deceased namely cooperative society dues from Stima M/number 8061, bank account at Standard Bank and Barclays Bank as well as dues from NSSF were not disclosed. In view of the above, I am of the firm view that the grant made on 16 September 2002 and confirmed on 9 June 2003 should be revoked and all consequential transaction(s) if any. In order to avoid delay and undue inconvenience, I order a fresh grant of letters of administration be issued to both Hannah Wanjiru Kimemia and Mary Wangari Gichuhi, who should endeavour to present an application for confirmation with allocation of shares of each beneficiary within a period of six (6) months. This being a family matter, each party shall bear their costs to the litigation. Kuria and another v Kuria [2004] eKLR (Musinga J) (Where the deceased was a polygamist, his estate is divided in accordance with section 40 of the Law of Succession Act)

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CASE NO. 148

The dispute turned on the distribution of the deceased’s estate, between the two houses of the deceased. One house wanted customary law applied, while the other house sought to have the Law of Succession Act applied to the facts. The court held that customary law did not apply as the deceased died after the Act came into force. The estate was ordered distributed in terms of section 40 of the Law of Succession Act, where the estate was divided into units taking into account the number of children in each house, and treating the widows as additional units to the children.

MUSINGA J: I believe an appropriate starting point is to consider the applicable law; whether it is Kikuyu customary law since all the parties are Kikuyus or the Law of Succession Act Chapter 160 of the Laws of Kenya. The petitioners were appearing in person and so they did not make any legal submissions and I believe for that reason the objector’s learned counsel chose not to submit on the law also. Section 3(2) of the Judicature Act Chapter 8 of the Laws of Kenya states as follows: ‘The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to the technicalities of procedure and without undue delay.’

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However, the preamble to the Law of Succession Act clearly states that it was to amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of deceased persons and section 2(1) of the Act provides as follows: ‘except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.’

The commencement date of the Act was 1983 and the deceased herein died on 5 August 1991 and so in my view, since the dispute relates to intestate succession to the estate of the said deceased person, the applicable law is Chapter 160. If the deceased had died before the commencement date of the said Act, the court would have been obligated to decide the dispute in accordance with Kikuyu customary law. If the matter was determined by application of Kikuyu customary law, the cardinal principle of land inheritance is the observance of equality amongst the different households of the deceased. Also, under the said law, a married woman cannot inherit her father’s land – see Wambugi w/o Gatimu v Stephen Nyaga Kimani (1992) 2 KAR 292. Cotran in his Restatement of African Law Volume 2 at page 8 observed that: ‘Inheritance under Kikuyu law is patrilineal.The pattern of inheritance is based on the equal distribution of a man’s property among his sons, subject to the proviso that the eldest son may get a slightly larger share. Daughters are normally excluded, but may also receive a share if they remain unmarried.’

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The petitioners have based their claim on Kikuyu customary law in their contention that since the objector was a married daughter of the deceased, she was not entitled to inherit any share of the suit land even if her husband had died and she had gone back to her father’s land and settled there. However, section 40(1) of the Law of Succession Act does not discriminate between daughters and sons of a deceased person in matters of intestate or testamentary succession. It provides as follows: ‘where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.’

Section 3 of the Act defines a ‘house’ to mean: ‘A family unit comprising a wife, whether alive or dead at the time of the death of the husband, and the children of that wife.’

It is not in dispute that the objector is a daughter to the deceased and that she was married but separated with her husband (who is now deceased) then she went back to her father’s land and settled there. It is evident that there has been deep seated differences between the parties. the suit land was purchased by the deceased through a loan advanced to him by the Settlement Fund Trustees...The suit land was for all intents and purposes owned by the deceased.

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The suit land ought to be distributed amongst all the beneficiaries of the deceased’s estate in terms of section 40 of the Law of Succession Act that is, in the first instance, among the two houses according to the number of children in each house but also adding the second petitioner as an additional unit to the number of children. The first house consists of the objector, Hannah Nyambura Kuria, Peter Kirara (the first petitioner) and Miriam Muthoni. The second house consists of Grace Wairimu Kuria, Chege Kuria, Karanja Kuria, Amos Karuga Kuria, Shadrack Njenga Kuria and Hannah Nyambura. These are nine units. The suit land should therefore be divided into equal units and each of the above named persons shall be entitled to one. If thereafter the other two married daughters – Miriam Muthoni from the first house and Hannah Nyambura from the second house will choose to surrender their portions to their siblings it will be upto them. With regard to the issue of costs, since this is a family dispute, the order that commends itself to me is that parties do bear their own costs. ***

8.7 DEVOLUTION

TO THE

STATE

Where no surviving relatives can be traced, the estate devolves upon the state. The provisions of the Law of Succession Act governing this are to be found in section 39(2), which states: ‘Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.’

Case number 149 is a Tanzanian decision on devolution to the state. The principle stated in the case is the same as that set out in section 39(2) of the Law of Succession Act...

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Re Yusuf bin Simbani (Deceased) [1962] EA 623 (Horsfall, Ag CJ) (Where an intestate’s estate does not have legitimate claimants, the estate devolves upon the state as bona vacantia) CASE NO. 149

The deceased was born in Tanganyika, but immigrated to Zanzibar and lived there for over twenty years before he died there intestate without a wife or children. He did not have kindred in Zanzibar, and the only person claiming the estate was his dead wife’s sister. It was held that the wife’s sister had no valid legal claim to the estate and in the absence of kindred the property of the intestate passed bona vacantia to the state of Zanzibar.

HORSFALL ACJ: ...As he has left no person capable of inheriting from him the question I am asked to decide is: To whom should the net estate of the deceased be paid.

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The claims by Mrs Christine Majaliwa, the sister of a wife who predeceased the deceased, can be disposed of by saying that the verbal desire expressed by the deceased before witnesses during his illness at the hospital… that all his belongings should be given to her after his death does not meet the requirements of a will under section 50 of the Succession Decree (Chapter 21). Being born in Tanganyika the deceased was a British protected person and he did not lose that status by reason of his acquiring a Zanzibar domicile by reason of his long residence here. He never applied for naturalisation as a British subject nor for naturalisation as a subject of HH the Sultan of Zanzibar. Section 26 of the Succession Decree does not apply since the deceased was a British protected person. That section provides that the property of an intestate who has left no widow or kindred shall go to the crown if he was a British subject or to the Zanzibar Government if he was a subject of the Sultan of Zanzibar. I think that I must go back to first principles for guidance on this subject. In re Barnett’s Trust (1), (1902) 1 Ch 847, an Austrian bastard, who was entitled to a fund in court in England, died inVienna intestate and without heirs.The Austrian Government claimed the fund under Austrian law but it was held that the right claimed was not in the nature of a succession and that the British Crown, by the law of England, was entitled to the fund as bon vacantia. KEKEWiCH, J, said at p. 857: ‘It is because there is no one who can claim through the deceased that the Crown steps in and takes the property. The Crown takes it because it is, as it is described in the cases, bona vacantia. It is property which no one claims - property at large – there is no succession. The Crown does not claim it by succession at all, but because there is no succession.’

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In Dyke v i (2) (1848), 5 Moo. PCC 434, it was said that the origin of the right shows that it must have existed from the foundation of the Monarchy; and that it is the right of the Crown to bona vacantia – to property which has no other owner. The principle is of general application and extends to a corporation as well as to a natural person. The cash in the deceased’s estate here has no legitimate claimants because there are no heirs. It is bona vacantia and by the above-mentioned principle of English law would have gone to the Crown if the estate had been in England. As section 26 of the Succession Decree is not directly applicable to the particular facts of this case article 24 of the Zanzibar Order-in-Council, 1924, will allow the importation of the doctrine of bona vacantia into the local law of Zanzibar subject to such qualifications as local circumstances render necessary. Substituting the Government of the Protectorate for the British Crown it is fit and proper that the net estate of the deceased here should go to that Government as bona vacantia.

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PART FOUR PROTECTION OF ESTATES

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There are provisions in the Law of Succession Act which cater for situations where a grant of representation has not been made, yet the estate is being interfered with or is in danger of being tampered with. These provisions are meant to secure the estate pending the making of the grant . The cases in this part deal with such matters.

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CHAPTER 9 PROTECTION PROVISIONS 9.1 INTRODUCTION The Law of Succession Act carries provisions whose design is to protect estates from diminution by unauthorised persons. These provisions seek to safeguard the interests of beneficiaries, heirs, creditors and other persons interested in the estate. Upon the death of the owner of property, it is the requirement of the law that the person stepping into the shoes of the deceased owner has legal authorisation to handle the property of the deceased. The law indicates who would have such authorisation, and seeks to criminalise any acts by persons who interfere with such property without authorisation.

9.2 INTERMEDDLING Section 45 deals with intermeddling, which is the unauthorised handling of the property making up the estate of a deceased person without authority. The provision states as follows: ‘45(1) Except so far as expressly authorised by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

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(2)

Any person who contravenes the provisions of this section shall: (a)

Be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and

(b)

Be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.’

Case number 150 was decided before the Law of Succession Act came into force, but it states the principle on intermeddling. The decisions in cases numbers 151, 152, 153, 154, 155, 157 and 176 are founded on the provisions of the Law of Succession Act on intermeddling.

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Mawji Narsi v Premji Purshottam (1918-22) 2 ZLR 47 (Sir W M Carter CJ, Maxwell and Pickering JJ) (Although there is a duly appointed executor, a person who intermeddles with the estate by claiming to have power to act as a legal representative of the deceased may be held to be an executor de son tort)

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CASE NO. 150

A duly appointed trustee of a settlement, who had control of legacy funds, mixed them with trust funds. He was sued by one of the beneficiaries, who sought to recover from him his share of the trust funds. It was held that that did not make him an executor de son tort, and that the fact that the trustee paid the legacy funds directly to the beneficiaries, instead of paying them to the executor did not mean that the trustee had claimed a right to act as an executor.

PICKERING J: I would remark, however, that the occasions upon which a person has been held to have constituted himself an executor de son tort are few and exceptional. It is clear law, that at the time when a duly appointed executor is in existence, an intermeddler, if he is to be held liable, must incur that liability by claiming for himself, the power to act as legal representative. He must have held himself out as an executor and acted under that claim.The learned judge has based his finding upon the payment of two legacies and the mixing of trust funds with legacy money. The settled estate came into the appellant’s hands as duly appointed trustee. He was obliged to assume control. The failure to separate monies and hand them over to the executor was an omission, and not an act carried out under a claim to be executor. The payment of the two legacies also, in my opinion, was not an act undertaken by the appellant in pursuance of such a claim. With regret I have found myself unable to concur in the conclusion arrived at by the learned judge upon this matter. The monies payable as legacies were already in the appellants’ hands. Acting strictly, he should have forwarded the monies to Vallabdas that he might hand over the sum to the beneficiaries. The appellant made the payment direct and entered the fact in the account book opened by Vallabdas and left in the appellant’s possession. I can perceive no facts which can properly be regarded as supporting a finding that the appellant had claimed a right to act as executor and by acting under such a claim had constituted himself an executor de son tort.

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Gitau and two others v Wandai and five others [1989] KLR 231 (Tanui J) (Any act done concerning the estate of the deceased by a person who has not obtained representation amounts to intermeddling with the estate)

CASE NO. 151

The plaintiffs, as administrators, sought the nullification of proceedings in a previous suit in which the defendants purported to sell a piece of land which they held in common shares with the deceased. The parties had entered into consent in the previous suit with regard to the sale. The plaintiffs contended that the plaintiffs in the previous suit had no legal capacity to enter into any consent and their entry into the sale agreement amounted into intermeddling with the affairs of the deceased. It was held that the act of the previous plaintiffs of entering into a consent order and the sale agreement were meddlesome acts. It was further held that obtaining a grant of administration thereafter did not cure the illegality of the acts.

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TANUI J: The issue that can be conveniently disposed of first in this judgement is the alleged intermeddling with the estate of Daniel Gitau Mute. It is submitted on behalf of the first defendant, that the acts of Jeremiah Kamau Gitau which consisted of entering into the consent judgement with others were done in course of professed administration of the estate and they, are, therefore, binding on the estate and that the only remedy for the plaintiffs was to sue the executor de son tort who acted in the character of the executor. According to section 45 of the Law of Succession Act, Chapter 160 intermeddling with the property of a dead man consists of ‘taking possession, disposing or otherwise intermeddling with any free property.’ In the instant case the act of Jeremiah Kamau Gitau that might be considered to have amounted to intermeddling with the estate of Daniel Gitau Mute is the fact that he was one of the signatories of the sale agreement of 2 June 1981. As shown above this agreement eventually became void and the shares of the estate of Daniel Gitau Mute in the suit premises remain intact up to this day. I therefore find that this contention does not have any merits. I now turn to examine the consent judgment complained of. I note that the plaintiffs who are the legal representatives of Daniel Gitau Mute were not a party to the first suit in which this consent judgement was entered and consequently they are not bound by a compromise made between Mr Punja, advocate who acted in the case for the second, third, fourth, fifth and sixth, defendants on one part and M/s Karuga Wandai and Company, Advocates for the first defendant on the part. Even if they had been a party to the first suit, their being sued before they were appointed administrators of the estate of the deceased could not be validated by doctrine of relation back, on their obtaining grant of letters of administration: (see Ingall v Moran

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[1944] All ER 97, Hilton Steam Laundry [1945] 2 All ER 425: Pinnegan v Cementation Ltd (1953) 1 QB 688). As to the question of Jeremiah Kamau Gitau who appears to have been sued, presumably as a legal representative of Daniel Gitau Mute and/or as being a signatory to a sale agreement of 2 June 1981, it is now plain that he had never been appointed an administrator of the said estate. It follows therefore, his acts being those of a stranger, have no effect at all in respect to the said estate especially as he was a mere defendant,. Likewise the consent judgement filed on 26 July 1982 in which he was made a party and in which the shares of the estate of Daniel Gitau Mute in the suit property were to be transferred are for the same reason invalid. It was also submitted for the plaintiffs that the first suit was a nullity on the ground that Jeremiah Kamau Gitau, Mary Wanjiku Mungai and Philisila Njeri Mungai were sued as legal representatives of Daniel Gitau Mute and Andrew Mungai Njui before they obtained letters of administration. The law on this issue is very clear. An administrator of an estate derives his title from the grant of letters of administration and the deceased’s property vests on him only as from the date of grant. Such title of an administrator unlike that of an executor does not relate back to the death of the testator for all purposes. It does not relate back so as to cure an invalidity of a suit purported to have been filed by an administrator in a representative capacity before a grant is made to him. Lord Denning in the English case of Bowler v John Mowlem and Company [1954] 3 All ER 556 succinctly enunciated such law as follows:

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‘the law on this subject as laid down by several decisions of this court is this: if a plaintiff brings an action in a representative capacity as administratrix, then, that action is a nullity, if she was not at that date by law administratrix with a proper grant. Even if she obtains a grant within a week, a month or a year afterwards it does not relate back.The writ is a nullity from the beginning.’

In the first suit, Jeremiah Kamau Gitau, Mary Wanjiku Mungai and Philisila Njeri Mungai did not bring the action themselves in which the consent judgement was recorded. They were sued by the first defendant when they were not in law legal representatives of Daniel Gitau Mute (deceased) and Andrew Mungai Njui (deceased). In my view, the fact that they did not bring the suit themselves but were improperly made defendants in the said suit in which they were three out of five defendants, cannot make the said suit a nullity, as was submitted on behalf of the plaintiffs. I have perused the record of the first suit and I note that paragraph 2 thereof which describes the defendants reads: ‘the defendants 1, 2 and 3 are male adults while defendants 4 and 5 are female adults of sound mind and their address for service for the purpose of this suit is care of PS Punja, Advocate, Uhuru Street, P O Box, 339, Thika...’

It is clear from this paragraph and from the plaint as a whole that the third, fourth and fifth defendants in the first suit were not sued in their representative capacities. Of course, reading the letter of 15 May 1982 from the first defendant addressed to Mr Punja, Advocate, it appears that some of the defendants in that suit, presumably the said defendants, were to be sued as legal representatives of the deceased partners of the suit property.

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This is further supported by the mandatory provision of Order VII, rule 4(1) of the Civil Procedure Rules Chapter 21 which stipulates that where a defendant is sued in a representative capacity the plaint shall state the capacity in which he is sued and how that capacity arises.The plaint of the first suit as indicated above did not state that the three defendants were sued in representative capacities and how such capacities arose. For these reasons it appears that each of these defendants was not sued in any representative capacity. Having noted that the first suit was not instituted by Jeremiah Kamau Gitau, Mary Wanjiku Mungai and Philisila Njeri Munga and having found that they were not sued in representative capacities as envisaged in the Civil Procedure Rules, I find that the first suit is not a nullity as was submitted. However, I find that they were improperly made parties to the suit as they had no property to transfer to the first defendant. In the Matter of the Estate of Dr John Muia Kalii (deceased) Machakos High Court succession cause number 81 of 1995 (Mwera J) (Since intermeddling is a criminal offence, evidence to support an allegation of it must be very strong)

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CASE NO. 152

The action was a petition for grant of letters ad colligenda bona by the widows of the deceased. An issue arose that some members of the family were intermeddling with the estate by collecting rent, moving assets about, among others, without legal authorisation. The court found that it was true that some family members were collecting rents and doing other things with relation to the estate before grant of administration was issued, but held that since this was being done by family members it did not amount to intermeddling, and in any event the evidence required to support the allegation, being a criminal offence, is very strong.48

MWERA J: Issue 1: Who has been receiving income from the deceased’s estate?: On preponderance of evidence Isaac Maweu and Mary Mbete for a greater deal of time have been receiving the rents. She said that when they do/did it was laid on the table and 48

This cannot be a correct decision on intermeddling. Section 45(1) of the Law of Succession Act defines intermeddling to mean taking possession or disposing of or otherwise intermeddling with the free property of a deceased person for any purpose without legal authorisation. Such authorisation should emanate from an express provision in the Law of Succession Act or any other written law, or from a grant of representation issued under the Law of Succession Act.The court ought to have considered whether the family members had any authority under the Law of Succession Act or any other written law to handle property of the deceased before a grant of representation was issued. With respect, since a grant of representation had not been made any dealing with the free property of the deceased without authority emanating from the Law of Succession Act or any other written law amounted to intermeddling even if the acts were those of a family member. Intermeddlers do not have to be outsiders; in fact it is family members who routinely intermeddle with the estate of their departed loved one.The activities of the family members complained about in the matter clearly amounted to intermeddling.What was before the court was a civil matter and therefore there was no basis for the court to require proof of intermeddling beyond reasonable doubt as would be the case in criminal matters. Where family members feel that some quick action needs to be taken over some property, to either preserve it or protect it, and the action cannot await the making of a full grant, the law allows the making of variety of limited grants to address the problem.

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distributed according to the needs of each. But these have not been the only recipients. Evidence had it that one Mohamed Zamzam was also doing so and a local chief (Mr Mutuku) too. The only problem is that none of these or any other for that matter brought any records of rent collection before the court.

ISSUE 2: Who has been intermeddling with the estate? It may appear: That Isaac Maweu has been overdoing things, being the deceased’s eldest son, including getting the clan to endorse him to take charge. It was not quite clear whether it was the clan or the family that mandated him with Mbete to collect rents from the beginning. This exercise seems to have been thrown in disarray with each group also collecting rent at some point. There was a claim that he has moved plant and machinery items to some unknown points and that either he was enjoying benefits accruing, and another that he had not. It was quite clear in this environment of some animosity so to say exactly which claim went over which. There was even an allegation that Maweu was hostile to his stepmothers and stepbrothers. But at the end of the day it appeared that there was no intermeddling as envisaged by the Act. There is nothing organised about this estate and so if one party thought that the other is hindering it from doing this or that, intermeddling was put forth.Yet they are all members of one family but thrown in a chaotic state when dealing with this rather large estate fell on them. But it cannot be said that all has remained static and consistent in the Muia estate.

ISSUE 3: Who should collect the income over the property as the matter: pends? The various parties are not agreed. The court even tried to hammer out some compromise but it seems to have been partly successful or not at all when a local assistant chief was involved. If the parties agree this court would suggest that without a better arrangement both counsel open a joint account and all tenants be directed to deposit rents there availing cash paying-in slips. In case of need the advocates should assist in paying out verified claims subject to a reasonable fee for the administration.

In the Matter of Wilson Nzuki Nyolo (Deceased) Machakos High Court probate and administration cause number 152 of 2000 Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

(Mwera J) (Only a person who has a grant or other legal authorisation may handle the property of a deceased person) CASE NO. 153

The executor of the will of the deceased sought orders that the respondent, who had forcibly entered the premises of the deceased and began to collect rents from tenants, accounts for the moneys collected and be evicted from the premises. The court found that the executor was the only person entitled to collect the rents. The respondent was ordered to furnish accounts and to leave the premises.

MWERA J: On the balance of things this court directs that in the next 28 days the respondent do lay before it the full and accurate statement to account for all the rents she has collected from the tenants in KATELEMBU/KYUMBI/1713X and how she has applied that money. It appears at least for the moment that the applicant is the executor of the late Wilson Nyolo’s will and accordingly he alone should collect and

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bring in whatever accrues from that estate until its distribution. It may not have been prayed for but it is proper in such cases that the tenants of the subject property should from now pay rents to Gideon Nzuki. The respondent is further directed and ordered to vacate the said property from the date hereof until the probate cause is finalised per further orders of this court. Default would mean contempt punishable by this court. John Kasyoki Kieti v Tabitha Nzivulu Kieti and another Machakos High Court civil case number 95 of 2001 (Mwera J) (A suit commenced over property belonging to a dead person by a person who has not obtained representation to the estate of the deceased is incompetent, and the filing of such a suit amounts to intermeddling)

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CASE NO. 154

An action was brought seeking to have certain persons barred from interfering with the running of businesses which belonged to a person who was dead. It was alleged that the parties sought to be restrained were intermeddling with the estate of a deceased person yet letters of administration had not been applied for. The plaintiffs had not obtained a grant of representation before commencing action. The court held that the suit was sterile, as the plaintiffs had no legal status to commence a suit on behalf of the estate of the deceased.

MWERA J: Turning to the preliminary point of law the plaintiff has no capacity to sue in matters relating to his late father’s property at all. The two businesses herein apparently form part of a deceased person’s estate anybody dealing with them ought to have a grant of probate or administration. From the extract of the plaint and the submissions here none of the litigants has such a grant. So doing anything affecting the estate of the late Kieti is to intermeddle. The most advisable course for all involved to take is to procure a grant of representation as soon as possible so that the liabilities of the estate are duly charged. This suit as it stands is incompetent for lack of capacity.The plaintiff cannot seek reliefs under it in any way on that account and the suit should not be entertained before court either.

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Francis Kamau Mbugua and another v James Kinyanjui Mbugua Nairobi High Court civil case number 111 of 2004 (OS) (Nyamu J)

CASE NO. 155

(A person seeking to restrain an intermeddler must first obtain representation to the estate, in order to acquire capacity to sue to stop intermeddlers; otherwise filing a suit against intermeddlers before first obtaining a grant makes the person filing suit also an intermeddler) The plaintiffs brought an originating summons under Order 36 rule 1 of the Civil Procedure Rules, and an application within it asking for an injunction under Order 39 of the Civil Procedure Rules to stop certain persons from intermeddling with the estate of the deceased. The plaintiffs had not obtained representation before filing suit. The suit and the application were struck out since the plaintiffs had no locus to bring the same without a grant.

NYAMU J: The first point for determination is whether the applicants have locus standi to bring the suit to stop the intermeddling and if they have such locus standi to determine whether a suit brought under Order 39, rule 1 and an application for injunction brought under Order 36, rule 1 is competent. Section 2 of the Law of Succession Act states:

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‘2(1) ‘Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons!’

Section 47 provides for the jurisdiction of the High Court as follows: ‘the High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient!!’

It is clear that the Law of Succession Act is a complete code except as regards third party rights or strangers. To underline this point section 45 and 46 of the Act provides detailed protective provisions concerning intermeddling with the deceased’s estates. The Chief, the DO and the Public Trustee have been specifically empowered to deal with this aspect. It is significant to note that potential beneficiaries have not been included. A succession court is empowered by section 47 to give all necessary orders including injunctions where appropriate to safeguard the deceased’s estate. An application brought outside the provisions of the Law of Succession Act is therefore incompetent.

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In any event Order 36, rule 1 consists of subsidiary legislation and where it is in conflict with section 47 of the Law of Succession Act section 47 must prevail. On the other hand although a potential beneficiary is technically entitled to commence legal proceedings under Order 36, rule 1 he is only entitled to do so where he is claiming under any deed, or instrument in order to have any question affecting his rights or Interest in law determined. There is clearly no deed or instrument upon which the applicants have brought the OS and this application. Order 36(1) does not empower the court to grant injunctions in deceased estates outside the provisions of the Law of Succession Act While the court does recognise that the applicants as potential beneficiaries do have sufficient locus they are not empowered under Order 36, rule 1 to institute suit and to obtain an injunction without having in the first place obtained letters of administration or where they initially seek urgent interim measures they must first attain the status of an administrator under paragraph 10 of schedule 5 of the Law of Succession Act before seeking interim relief such as preservation of status quo as the applicants intend to do. In the case of Basirico v K Boat Service Ltd and Guirri Nairobi CA 276 of 1998 (CA) the court dismissed a daughter’s appeal concerning the shareholding of deceased in a company because she had not obtained letters of administration .the appeal was dismissed notwithstanding the admission by the respondent that she was entitled to at least 1/3 share in the estate.

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The position the court has taken is fortified by the provisions of paragraph 10 of the Fifth Schedule of the Law of Succession Act Chapter 160. An application must be made for administration pendete lite for an applicant to acquire a status to bring a suit. The applicants have not done so. Under the protective provisions set out above, that is section 45 and section 46 it is criminal offence to intermeddle with a deceased estate and the remedy and the officers to deal with it have been clearly defined under the sections. The respondent must clearly seek advice from his counsel. It is illegal to continue with the construction of the structure notwithstanding the final fate of this application since it is a criminal offence. The upshot is that the applicants should have sought to be appointed under Fifth Schedule paragraph 10 which reads: ‘pending any suit touching the validity of the will of a deceased person, or for obtaining or revoking any probate or any grant of letters of administration, the court may appoint an administrator of the estate of the deceased person who shall have all the rights and powers of a general administrator other than the right of distributing the estate and the administration shall be subject to the immediate control of the court and shall act under its discretion.’

The applicants having failed to bring themselves under the Law of Succession Act and in particular paragraph 10 of the fifth Schedule to the Act have no recognised capacity in law to bring the suit and the application.The applicants like the respondent are just potential beneficiaries. Better still they should have filed an application for letters of administration instead of expending their energies while they have no locus. Order 36, rule 1 is not available to them for the reasons indicated above:

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In view of the clear provisions of the law as outlined above both the Originating Summons and the application are struck out. The High Court has unlimited jurisdiction to deal with any dispute under the Act and to give all the necessary orders. The contents of this trailing reveal that neither the applicants nor the respondent have been successful and it is quite evident that there is a serious gap in terms of what the family ought to be doing and this being a family affair this court in its discretion concerning costs makes no order as to costs. ***

9.3 PUBLIC OFFICERS

AND

PROTECTION

OF

ESTATES

Section 46 of the Law of Succession Act gives authority to specified public officers to take certain steps with respect to the estate of a deceased person with a view to protect and preserve it, pending appointment of personal representatives, or action by personal representatives. Section 46 states: ‘46(1) Whenever it becomes known to any police officer or administrative officer that any person has died, he shall, unless aware that a report has already been made, forthwith report the fact of the death to the assistant chief of the sub-location or to the chief or administrative officer of the area where the deceased had his last known place of residence. (2)

Any person to whom a report is made under subsection (1) shall: (a)

At the request of any person who appears to have a legitimate interest in the estate of the deceased; or

(b)

If no application for representation in respect of the estate has been made within one month after the date of death of the deceased,

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Forthwith proceed to the last known place of residence of the deceased and take all necessary steps for the protection of his free property found there, for ascertainment of all persons appearing to have any legitimate interest in succession to or administration of his estate, and for the guidance of prospective executors and administrators as to the formalities and duties: Provided that if the last known place of residence of the deceased is situated in a municipality, or when the deceased dies outside Kenya wherever his property is situated, the person to whom a report is made under subsection (1) shall not take the action which he is required to take under this subsection unless and until he has first reported the death to the Public Trustee, who may if he so wishes himself take the action instead of that person. (3)

if any person to whom a report is made under subsection (1) finds that there is any free property of the deceased, or that the person appearing to have the greatest legitimate interest in succession to or administration of his estate is resident in any other sub-location or area, he shall forthwith report those facts to the assistant chief, chief or administrative officer of that other sub-location, or area, who shall thereupon take, in respect of the property or persons, the steps prescribed by subsection (2).

(4)

An assistant Chief or administrative Officer becoming aware that there is in his sublocation or area any free property of a deceased person, or that there are resident in his sub-location or area any persons appearing to have the greatest legitimate interest in succession to or administration of the estate of a deceased person, but that no grant

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of representation in respect of that estate has yet been made, shall, at the request of any person who appears to have any legitimate interest in that estate, and without waiting for a report under this section, forthwith take, in respect of the property or persons, the steps prescribed by subsection (2). (5)

A person who is required to take the steps referred to in subsection (2): (a)

Shall forthwith report to the Public Trustee the death of the person concerned; and

(b)

Notify the Public Trustee of the steps taken by him pursuant to that subsection.’

Cases numbers 156 and 157 deal with protection of estates, and the role of the officers empowered by section 46 of the Act in that respect. Ombogo v Standard Chartered Bank of Kenya Ltd [2000] 2 EA 481 (Akiwumi, Bosire and Owuor JJA) (Section 46 of the Law of Succession Act applies to all classes of deceased persons, and it makes no distinction between professionals and ordinary people)

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CASE NO. 156

These were interpleader proceedings brought by a bank which held clients’ bank accounts maintained by a deceased advocate.The Law Society of Kenya at the time usually appointed two advocates to wind up law firms of deceased advocates in pursuance of rules made under the Law Society Act. In pursuance of those rules the Law Society had written to the bank asking that the accounts be frozen pending the appointment of two advocates to wind up the law firm of the deceased advocate. This brought the Law Society of Kenya into conflict with the administrators of the estate of the deceased advocate, with the bank finding itself caught in between. It moved the High Court asking for a determination as to who was entitled to administer the clients’ accounts.The High Court found in favour of the Law Society of Kenya. On appeal it was held that the estate of a deceased advocate included money held in trust for his clients, and therefore the client account fell within the scope of the Law of Succession Act. Regarding protection of estates it was held that section 46 applied, and under that provision the Law Society of Kenya was not envisaged as one of the persons or bodies vested with responsibility to protect estates of deceased persons.

AKIWUMI, BOSIRE and OWUOR, JJA: There is no doubt whatsoever that before his death on 5 July 1995, the deceased held a valid practising certificate as an advocate, was subject to the provisions of the Advocates Act and the mandatory membership of LSK as required by section 5(a) of the Law Society Act. But can it be said that after his death, the deceased continued to be subject to the provisions of both the Advocates

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Act and the Law Society Act? Mr Okwach seemed to imply that within the object of protecting the interests of the clients of the deceased advocates the provisions of both the aforesaid legislations applied to the respective practices. With due respect to him both legislations are geared to ensuring proper conduct on the part of practising advocates, and it would be irrational to suggest that the said legislation can be extended to cover the legal practice itself after the practitioner has died. Admittedly, upon the death of a practising advocate his clients may and often do suffer if his law firm is not wound up soonest and properly. There is the undeniable risk of their money, where applicable, being dissipated by beneficiaries of a deceased advocate’s estate on the mistaken belief that it is part of the personal free estate of the advocate. It is the concern to protect such clients which, as we stated earlier, prompted the council of the LSK to promulgate Legal Notice number 279 of 1995. That was a laudable idea, but do its provisions accord with the Law of Succession Act?

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Section 45(1) of the Law of Succession Act provides, in pertinent part, as follows: ‘Except so far as expressly authorised by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose, or otherwise intermeddle with, any free property of a deceased person.’ Subsection (2)(a) of this section prescribes penalties for any contravention.The Law of Succession Act according to its preamble is a consolidating statute of the law relating to intestate and testamentary succession and the administration of estates of deceased persons. Contrary to what Mr Okwach said, it does not exclude the affairs of law firms of deceased advocates notwithstanding the definition of the term ‘estate’ which tends to suggest that all that the Act covers is the personal property of a deceased person and not any other property he could be holding as trustee. However, Jowitts Dictionary of English Law (2 ed) Volume 1 at 725, suggests that the definition of the term ‘estate’ is not confined only to what a person owns, but it includes property held in trust. The term is described therein in the following terms: ‘property’; thus we speak of real and personal estate, of partnership estate, trust estate, etc, especially with reference to questions of administration, as in the case of the estate of a deceased person, a bankrupt, or a dissolved partnership.’ In view of the foregoing it is our view that the phrase ‘free property’ of a deceased advocate is not limited to his personal estate only but extends to property held by him in trust, because of the definition of the phrase in the Law of Succession Act, it is property which he was legally competent freely to dispose of in his capacity as an advocate. It will do violence to the intention of the legislature in enacting the said Act, if a restricted meaning is given to the Act, if a restricted meaning is given to the phrase, more so, as we earlier said when the preamble to the Act is closely looked at. If further authority is necessary, there is section 58 of the Act, which makes provision for the number of administrators in respect of continuing trusts. By necessary implication it means that the Act does also cover trust property. Besides, section 46 of the Act empowers ‘any’ police officer or administrative officer who becomes aware of the death of any person to report the death either to an assistant chief or chief of the area in which the deceased resided, who, on receipt of such report, is obliged to take specific steps to protect the free estate of the deceased, including, if no application for representation of the estate has been made within one month after the date of death, the ascertainment of the deceased’s free property. There are of course, certain preconditions which must first be satisfied. The significance of

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that section is clearly that the Act authorises persons other than advocates to take all necessary steps to preserve all the free property found in a deceased person’s residence, and also to ascertain all persons appearing to have legitimate interest in succession to or administration of his estate. The section does not distinguish between professionals and ordinary people, rural and urban people, except that for those who dwell in municipalities a report of the death must first be made to the public trustee before any action is taken as aforestated.

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Pausing here for a moment, it would appear to us that the council of LSK by enacting Legal Notice number 279 of 1995 must have acted on the mistaken belief that there was a lacuna in the Law of Succession Act, with regard to the administration of a deceased advocate’s law practice. Section 46 aforesaid, does seem to provide an answer. It may not be satisfactory to the LSK, but that is a different matter. Perhaps the only way out for it is to seek an amendment to that section to provide for the making of a report of the death of an advocate to it instead of the public trustee, and further for the empowering of the Council of the LSK to make rules for the management and winding up of such advocate’s legal practice. Coming back to the definition of ‘free property’: in view of what we have stated above, it is quite clear that the phrase connotes not only the personal property of a deceased person, but also, all property which was in his possession or control or under his power, and the disposal of which, would legally have required his authority, but for his death. Money held in a deceased advocate’s ‘client’ account falls into that category. It follows then that the late Ombogo’s two bank accounts were part of his free property and, therefore, subject to the provisions of the Law of Succession Act. LSK not being among the people who, under section 46 aforesaid, have the power to take all necessary steps to protect the deceased’s estate, it had no right to direct the deceased’s bankers to freeze the two bank accounts. Even if it had such right it would not have priority over the administrators of the deceased’s estate under the Law of Succession Act (see section 66). We recognise the real danger of a lay administrator appointed under the Act, dissipating money in a ‘clients account’ in the mistaken belief that it is the deceased’s money. However, as the law now stands, only the public trustee and in case he does not act, an assistant chief, chief or an administrative officer, are empowered to take all such steps as are necessary to protect the estate of a deceased person, including deceased advocates, from dissipation. Having come to the foregoing conclusion, it will be academic to consider the issue whether or not Legal Notice 279 of 1995 is a retrospective legislation and whether or not it is a procedural enactment. We must however add that in view of what we have stated above, the legal notice is in conflict with the Law of Succession Act, to the extent that it seeks to establish a parallel law and procedure to that in the Law of Succession Act, for the management and administration of the law firms regard in the parent Act. Section 27(k) of the Law Society Act must be read in that context. The objects of the LSK do not include the management and winding up of law firms of deceased advocates. The paragraph must be read ejusdem generis with the preceding paragraphs of that section. Section 4(e) of the Act which was cited as the basis for promulgating Legal Notice Number 279 of 1995, is, with respect, being overstretched to cover situations which are reasonably catered for under the Law of Succession Act.

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Re Katumo and another [2003] 2 EA 509 (Nambuye J) (Handling the property of a deceased person by a person who does not hold a grant of representation amounts to intermeddling. The only persons who may handle the property at this stage for the purpose of protecting and preserving it, without being charged of intermeddling, are the officers mentioned in section 46 of the Law of Succession Act)

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CASE NO. 157

A grant of letters of administration was sought by the brothers of the deceased. A creditor, whose debt was acknowledged by the administrators, moved the court in the cause before grant was made for an order that a motor vehicle belonging to the estate be taken over by the court from the administrators and subsequently be put in proper custody or be released to her for custody. The court declined to make the order. Firstly, there was no provision for that sort of application. Secondly, no grant had been made and would-be administrators could not be compelled to take action as they were not yet administrators, an act by them with regard to the estate would amount to intermeddling. In any event the court could not issue administrative orders in favour of the creditor since the only persons who are entitled to such orders are the officers set out in section 46 of the Law of Succession Act.

NAMBUYE J: Section 45 prevents intermeddling of the deceased property and the intermeddler is accountable to the rightful executor or administrator. Section 47 gives power to the High Court to entertain any application and determine any disputes under this Act and to pronounce such decrees and make such orders there as may be expedient. Rule 59 of the Probate and Administration Rules simply deals with the mode of presentation of application. The protective sections for purposes of protecting a deceased estate are sections 45 and 46 of Chapter 160 Laws of Kenya. Section 45 gives power for an administrator or executor to take action against an intermeddler. Section 46 gives power to the administrative officers named in that section namely police officer, an assistant chief, chief, District Officer and the Public Trustee to move in and protect the deceased’s property. The Act does not have a provision whereby a named beneficiary can move in and seek to protect the estate property in the absence of a grant of representation. It follows that although the High Court has power vested in it by section 47 of the Act to hear and determine all manner and nature of applications that jurisdiction has to be exercised within the provisions of the Act. Where there is no provision covering a particular aspect of the dispute there is no jurisdiction.

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The applicant is a debtor49 and the best people to account for her debt are the administrators who are yet to be appointed. Her fears are that the asset might go to waste. If that happens she will be entitled to move under the Act to seek compensation to the extent of her claim should the administrators or would be administrators act negligently. For now if the orders sought were to be made they will issue in a vacuum as the applicant or a beneficiary is not empowered under the Act to take her custody of the deceased’s property and protect it in the absence of a grant. The would be administrators on the other hand cannot be compelled to take action in the matter as they have no grant issued to them and any action taken in regard to the estate of the deceased will be intermeddling. I agree that by altering the state or condition of the asset in question they are intermeddling with that asset. As of now this court cannot issue protective orders in favour of the applicant.The only person who can be relied upon to do so are the officers named in section 46 of the Act. I will therefore suffice for this court to issue an order and direct the area chief and sub chief to ensure that the said asset namely motor vehicle registration number KAG 097Q is protected from being vandalised and ensure that it is well preserved pending the issuance of letters of administration to the respondents herein.

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After the grant has been issued is when this court can be moved or called upon to compel the administrators to protect the same pending determination of the dispute herein.

49

The court must have meant’ creditor.’

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GRANTS

PART FIVE OF REPRESENTATION

A grant of representation is an order by a court to a person, conferring authority to administer or manage the estate of a dead person. The person so appointed or conferred with authority is given certain powers under the grant and the grant comes with respect to certain duties and obligations. This part contains cases on grants of representation in general, defining them, stating the persons to whom they should be made, the property with respect to which they should be made, among others.

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Chapter ten carries cases on grants of representation. The chapter defines grants, to whom they are made and the general principles governing them. Chapter eleven is on probate jurisdiction. It defines the jurisdiction of the courts on succession matters. Chapter twelve is on non-contentious probate, principles governing making of grants and confirmation and alteration of grants. Chapter thirteen is on contentious probate and it covers objections to making of grants, protests at confirmation of grants and revocation of grants.

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CHAPTER TEN GRANTS

OF

REPRESENTATION

10.1 INTRODUCTION A grant of representation is an order issued by a court confirming the appointment of a personal representative.

10.2 EXECUTORS

AND

ADMINISTRATORS

The management of the estate of a deceased person is carried out by executors and administrators. The general term for these managers is personal representatives. They represent the deceased.They step into his shoes, they do those things that the deceased himself would have done. The deceased’s property vests in them. They are meant to manage the estate pending distribution. Executors are appointed by the testator in his will. The relevant provision on this in the Law of Succession Act is section 6 which provides that: - ‘A person may, by will, appoint an executor or executors.’ Cases numbers 158, 159, 160,161, 162, 204 and 232 deal with executors and administrators in general, and they cover such matters as their qualifications, appointment and function. In the Goods of Adams

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(1872) LR 2 P and D 367 (Lord Penzance) (Executors may in certain cases be impliedly appointed) CASE NO. 158

The testator by his will disposed of his property, and gave directions on payment of debts and legacies. The will, however, did not appoint executors; instead it had a clause stating, ‘I wish P A Collins to act as trustee to the estate.’ An application was then made, upon the testator’s death, for the grant of probate, to the person named Collins, of the will of the deceased as an executor according to the tenor of the will. The application was rejected.

LORD PENZANCE: I have considered the cases cited, and the argument addressed to me on the last court day. The first case was In the Goods of Montgomery (5 numbers Ca 99); Sir H J Fust says, ‘It would appear prima facie that the paper was not intended as a will, but as a deed to convey the property to two gentlemen in trust...If there had been trusts to be executed immediately, or in the lifetime of the testatrix, though

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it could still not have effect as a deed, it would not operate as a will. What are the trusts? Why, that these gentlemen ‘as soon as conveniently may be after my decease,’ are to collect the proceeds of her personal estate, pay her debts and the legacies she has specified. Under these circumstances, I am quite clear that the paper cannot have effect as a deed, and may have effect as a will, for all the trusts are to be executed after the death of the deceased. The question then is, whether the parties named as trustees are executors according to the tenor, or universal legatees in trust. Looking at the whole of what they are to do, I think, under the circumstances, the acts are to be done by them as executors, and not as trustees generally, and I therefore decree probate to them as executors according to the tenor of the will.’ the acts to be done were to collect the proceeds of the personal estate, and to pay the debts and legacies.The court, therefore, held that although they were called trustees, they were to perform the duties of executors. Another case cited was In the Goods of Collett (Deane, 274). In that case, also, there was a similar direction to pay debts, a general power of administration cast upon the person called a trustee. A third case referred to, In the Goods of Baylis (Law Rep 1 P and M 21). There the will commenced with these words: ‘I direct that all my just debts, funeral and testamentary expenses, be duly paid and satisfied as soon as conveniently may be after my decease,.’ The testator gave to the trustees all his personal estate, with directions to convert it into money, and divide it amongst his children. Before, however, it could be divided, the trustees had to comply with the directions in the first clause of the will, and pay the debts, funeral, and testamentary expenses, which was part of the office of executor. Applying those cases to the one in hand, I find no parallel between them. In this case nothing was bequeathed to the person called a trustee; there is nothing for him to do as such, no duty to perform.The whole matter resolves itself into this: he is said to be a trustee. That is not enough, and I must reject the application. In the Goods of Russell and In the Goods of Laird (1892) P 380 (The President)

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(Executors may in certain cases be impliedly appointed) CASE NO. 159

The testator in his will did not appoint executors, but nominated trustees with instructions ‘to carry out this will,’ and ‘for the due execution of this my will.’ The matter before the court was an application for grant of probate to the trustees as executors according to the tenor. The prayer was granted. THE PRESIDENT: I think that this case as well as the last falls within the principle that where the direction is to carry out the general provisions of the will, and not to execute a specific trust, the trustees are executors according to the tenor. The grant, therefore, may go as prayed.

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Sewe v Sewe and another [1991] KLR 105 (Gachuhi, Gicheru JJA and Cockar AJA) (The appointment of administrators is not the same as distributing the assets to those who are entitled to inherit)

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CASE NO. 160

The dispute was over the appointment of an administrator to the intestate estate of the deceased. The appellant, a son of the deceased, had sought to be appointed sole administrator of the estate. His application was objected to by his mother and his brother, who feared that if the appellant was appointed sole administrator he would sell off the land where the mother lived. His application for grant was dismissed, and he appealed to the Court of Appeal. It was directed that the grant be made to more than one person in terms of section 58 of the Law of Succession Act as there was a continuing trust. It was pointed out that heirs should not confuse appointment of an administrator with distribution of the assets to those entitled to inherit the same. When time comes for distribution the matter would still come to court and all issues arising with respect to distribution would then be sorted out by the court at that stage.

GACHUHI, GICHERU JJA and COCKAR AJA: During the hearing of the appeal it transpired that the property should be held on trust as all parties had interest in it. There was fear among them that if the appellant was appointed a sole administrator of the estate, he might sell the land where their mother is staying without the knowledge of the respondents. The mother submitted that in order to maintain peace, all three of them should be appointed administrators so as to safeguard the property from waste and alienation. It is evident that the grant should not be issued in the name of one person but should be issued in terms of section 58(1) of the Law of Succession Act (Chapter 160) to all the parties. We wish to make it clear to the parties that the appointment of the administrator is not the same as distributing the assets to those who are entitled to inherit.When the time comes for inheritance, they will have to come to court by which time they will have sorted out who shall inherit the land and in what proportion. The first respondent’s concern is to protect the interest of the mother who is now staying on the land. All parties want to live in peace. For that reason, we allow this appeal and order that Rosebella Sewe, George Zablon Angungo Sewe and George Ouko Sewe shall apply to be appointed administrators of the estate of Ishmael Sewe Miyumo.

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In the Matter of the Estate of Fatuma binti Mwanzi Umri (deceased) Nairobi High Court probate and administration number 21 of 1994 CASE NO. 161

(Mulwa J) (An administrator appointed in the event of intestacy does not automatically, by virtue of that appointment, become a beneficiary of the estate of the deceased). Facts are set out in the ruling.

MULWA J: The applicant is the administrator of the estate of Fatuma Binti Mwanzi having obtained the letters of administration on 22 March 1994. He deponed in his affidavit in support that he is the only son of the deceased and therefore the only beneficiary. He further deponed that one Mohammed Sheikh Mwanzi filed an application for the revocation of the grant on 19 August 1996 which application was dismissed for want of prosecution For the purposes of determining the issue in dispute, I have read the grounds in support of the application of Mohammed Sheikh Mwanzi to try to find out on what premises he claims the estate of the deceased. His main ground is that he is a brother of the deceased and therefore he is entitled to be administrator. He does not deny that the applicant is the son of the deceased neither does he show how the grant was bad in law except to say that it does not conform to Mohammedan law, but does not show in his affidavit how it did not conform to Mohammedan law.

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As against this the applicant has deponed that he is the only surviving son of the deceased who died intestate in which case section 38 of the Law of Succession Act applies.50 The estate will devolve upon the applicant. Under the circumstances, he would be the best administrator of the estate. The respondent was asking the court that he be appointed administrator by virtue of being a brother of the deceased.This is a misconception of the law that because one is appointed an administrator he automatically becomes a beneficiary. The respondent has not applied to be considered as a dependant under section 26 of the Act.51 Under the circumstances he has no claim to the estate and has no business to interfere with the administration of the estate. ***

50

51

With respect, the position stated here cannot be correct. If the parties were Muslims, and indeed the respondent appeared to assert so, Part V of the Law of Succession Act, which deals with intestacy, would not apply by virtue of section 2(3)(4) of the Law of Succession Act. The law, which applies to the intestate estate of a Muslim, is the law as stated in the Koran, and the estate is dealt with as stipulated in the Koran. Under that law a brother of the deceased would be entitled to a certain share in intestacy. Section 38 of the Law of Succession Act is of no application at all. With respect, this statement also does not reflect the correct legal position. Section 26 of the Law of Succession Act falls in Part III of the Act, which does not apply to Muslims. There would have been no basis at all therefore for the respondent, who was a Muslim, to make an application under that provision.

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Grants of Representation

10.3 PERSONS ENTITLED

TO A

323

GRANT

The Law of Succession Act sets out the qualifications for appointment as personal representatives and prescribes the number of persons who may be appointed to act as personal representatives at any particular time. A grant can only be made to a maximum of four persons in respect of the same property, according to section 56(1) (b). In intestacy, a grant of letters of administration must be made to more than one person where a continuing trust arises, that is where the deceased is survived by a minor child or children, by virtue of section 58. This is intended to safeguard the interests of the minor children in the estate of the deceased. Sections 60, 62, 63, 64, 65 and 66 deal with the persons who are entitled to apply for grant and to whom a grant may be made. Section 56(1) (a) (b) provides as follows: ‘56(1) No grant of representation shall be made: (a)

To any person who is a minor, or of unsound mind, or bankrupt; or

(b)

To more than four persons in respect of the same property.

Section 58 provides that: ‘Where a continuing trust arises, no grant of letters of administration may be made to one person alone, except: (a)

Where that person is the Public Trustee or a trust corporation; or

(b)

Where the application is for the grant of letters of administration with the will annexed, and in that will the testator has appointed one or more trustees for the continuing trust who are willing to act.’

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Cases numbers 162 and 163 consider the issue of who among the persons entitled in intestacy has priority to the grant of letters being made to them. Case number 164 illustrates the application of section 58, that is in the event of intestacy a grant of letters should be issued to more than one person where the deceased is survived by minor children. Case number 165 deals with qualifications of personal representatives.

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In the Matter of the Estate of Aggrey Makanga Wamira Mombasa High Court succession cause number 89 of 1996 (Waki J) (Surviving spouses and children have priority over all other heirs of the estate of the deceased, in terms of the right to administration and shares in the estate)

CASE NO. 162

The dispute took the form of objection proceedings where the father of the deceased was unhappy with the step taken by the widow and daughter of the deceased of seeking a grant of representation in respect of the estate. He alleged that the widow was young, inexperienced, and almost illiterate and was medically unfit to administer the estate. He feared that she might remarry and leave the children destitute. He claimed that the daughter of the deceased was a minor. The court held that by virtue of the intestacy provisions the surviving spouse and the children had priority over other heirs of the deceased, with respect to both the right to administer the estate as well as the distribution of the estate.

WAKI J: I have considered the objection made by the applicants petition and the cross-petition. I have also considered the oral evidence tendered and the submissions of counsel. The starting point would be a restatement of the law on intestacy. It is well covered under Part V of the Law of Succession Act Chapter 160 Laws of Kenya. Under section 35(1)

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‘35(1) Subject to the provisions of section 40, where an intestate has Left one surviving spouse and a child or children, the Surviving spouse shall be entitled to: (a)

the personal and household effects of the deceased absolutely; and

(b)

a life interest in the whole residue of the net intestate estate:

Provided that if the surviving spouse is a widow that interest shall determine upon her remarriage to any person.’

Section 40 is not relevant since the deceased was not polygamous.Then under section 66, the court is given discretion in the appointment of the person or persons who will administer the estate. It states: ’66 When a deceased has died intestate, the court shall, save as Otherwise expressly provided, have a final discretion as to the Person or persons to whom a grant of letters of administration Shall, in the best interests of all concerned be made, but shall, Without prejudice to that discretion accept as a general guide the following order of preference: (a)

surviving spouse or spouses, with or without association of other beneficiaries;

(b)

other beneficiaries entitled in intestacy, with priority according to their respective beneficial interests as provided by Part V ;

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(c)

the Public Trustee and

(d)

creditors:’

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It is clearly therefore the case under written law that a surviving spouse has preference over other persons to be given a grant for the administration of the estate of the deceased spouse. I suspect in this matter problems have arisen because the surviving spouse was a wife. I also suspect that the objector was motivated more by a conviction borne out of custom and customary traditions than anything else that the wife of the deceased ought not to take charge of her deceased husband’s estate. The objector talked about forcing the wife to accept some Luhya customary rites which he did not disclose. He may well have been referring to funeral rites, but after the funeral further customary rites relating to the appointment of an administrator are performed. In his Restatement of African Law at page 42, Cotran states that the administrator (omulindi), on intestacy is appointed by the elders. He continues: ‘Normally the deceased’s eldest son is appointed, if he is of age or alternatively the elders may nominate a brother of the deceased. The omulindi has three principal functions: (a)

to be head of the family and as such to represent the family for all purposes

(b)

to be guardian of the widow and children of the deceased in certain cases, and

(c)

to act as administrator of the deceased’s estate.’

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Under Luhya custom therefore the widow has no role to play in the Administration of the estate. I believe that is the view taken by the objector in this case. That is because when he was asked in cross-examination to give reasons why he thought the widow would not administer the estate properly as stated in his objection, he said he had no reason. He only wanted to be joined in the grant. He had no response when it was proved that the daughter was not a minor but had attained the age of majority before the application was made. He only felt that she was too young. The Succession Act became operative in 1981. Even before then however, our courts had given definite views on the capacity of widows to administer their deceased husband’s estates, customary law notwithstanding. I cannot better the exposition given by Madan J (as he then was) in Re Kibiego [1972] EA 179 and I will therefore adopt it: ‘Whatever Cotran’s source of Nandi law may be, I am of the opinion that in today’s Kenya in the absence of a valid reason such as grave unsuitability a widow of whatever race living in the country is entitled to apply to the court for the grant of letters of administration more so when the children, as in the instant case, are minors. A widow is the most suitable person to obtain representation to the deceased husband’s estate. In the normal course of events she is the person who would rightfully, properly and honestly safeguard the assets of the estate for herself and her children. It would be going back to a medieval conception to cling to a tribal custom by refusing her a grant which is obviously unsuited to the progressive society of Kenya in this year of grace. A legal system ought to be able to march with the changing conditions fitting itself into the aspirations of the people which it supposed to safeguard and support.’

On the evidence on record I find no grave unsuitability of the widow in this case to administer her late husband’s estate. There are provisions for safeguarding the estate in the event of her remarriage which she swears she does not intend to do. There

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is no medical report to confirm that she was suffering from the same ailment her husband died from or other illness. At any rate there are legal provisions covering that eventuality. Her illiteracy is not a bar and would not be alleviated by joining the objector who is equally illiterate. The second applicant, Gladys has no legal disability in being joined as a joint administrator. They are both capable of taking care of the interests of the objector as the deceased’s father. All in all I find no merits in the objection made and I dismiss the objection. I also strike out the cross-petition made by JACOB AMIRA OMULELE. In the Matter of the Estate of Beatrice Amalemba Nairobi High Court succession cause number 2610 of 2000 (Koome J)

CASE NO. 163

(The intestacy provisions at sections 35, 36, 37, 38, 39 and 40 of the Law of Succession Act provide a guide to determining priority in entitlement to grant of letters of administration intestate where there are competing claimants).

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The dispute was on who between the applicant and his in-laws was entitled to administer the estate of the deceased married daughter of the applicant. She died intestate, did not have children and her husband had predeceased her. The court found guidance in section 39 to hold that her father had priority in entitlement to administration of her estate over her in-laws. KOOME J: The applicant is the father of the deceased. As at the time of her death, the deceased husband had predeceased her and she was not survived by any child. The applicant looked after his deceased daughter, paid the hospital bills and buried her in his home. The applicant was not informed when the grant that was revoked was issued to the respondents herein hence the court’s ruling that the grant was obtained fraudulently without material disclosure. This court having made decision, my duty is in deciding the application before me is to determine who between the applicant and the respondents has priority under the law to be issued with the grant of letters of administration of the deceased and in this regard, I turn to the provisions of section 39(1) of the Law of Succession which provides and I quote: ‘Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority: (a)

Father; or if dead

(b)

Mother; or if dead

(c)

Brothers and sisters, any or children of deceased brothers and sisters in equal shares; or if none

(d)

Half brothers and half sisters and any child or children of the deceased half brothers and half sisters in equal shares; or if none

(e)

The relatives who are in the nearest degree of consanguinity up to and including the sixth degree in equal shares.’

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Considering the above provisions of the law, I find, Lennox Allan Amalemba should be issued with the grant of letters of administration of the deceased estate. Veronicah Mwikali Mwangangi v Daniel Kyalo Musyoka [2005] eKLR (Ang’awa J) (Where the deceased is survived by minor children, a continuing trust arises and the grant of letters of administration must be made to more than one person) CASE NO. 164

A grant of representation limited for the purposes of filing suit was made to the plaintiff. An objection was raised as to the competence of the grant where the dependants likely to benefit from any award made by the court were minors. It was held that since there were minors the grant ought to have been made to more than one person, and consequently the suit ought to have been commenced by two plaintiffs. The suit was struck out as incompetent.

ANG’AWA J: Where children are concerned in an estate, where the legal representative is a male or female, there must be two administrators to take up the limited grant for purposes of filing suit. This assists in ensuring that the resulting trust created for the children are safeguard. The courts may invest any award given in an interest earning account in the name of the legal representative and the registrar of the High Court of Kenya but this concerns an estate of the deceased. I hereby rule that for there to be a suit by a legal representative or dependent there must be two persons filing suit as plaintiffs to guard the interest of the minor.

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I hereby declare that a fresh suit be filed having two administrators/legal representative to the limited grant this suit is hereby struck out with costs to defendants.

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In the Matter of the Estate of Ravinder Singh Vohra (Deceased) Nairobi High Court succession Cause number 1688 of 2006 (Aluoch J) (Old age and non-residence are not bars to appointment as executors or administrators) CASE NO. 165

A petition to a grant of probate by the executors was objected to by the former wife of the deceased, on her own behalf as beneficiary and that of her children. She contended that the two executors were unsuited, as one of them was too old, while the other was a non-resident of Kenya. The court held that the law does not have any restrictions on who may act as a personal representative, based on old age or non-residence. The objection was dismissed.

ALUOCH J: In an effort to try to understand the concerns of the objector about the executors, I decided to refer to the will and codicil, though they are not challenged. The will says in Clause 2: ‘I give Piera Verri such part of my real and personal property as I shall in my lifetime notify my said executors and trustees in writing.’

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The testator (deceased) executed this will on 9 August 2005, and on the same date, he addressed a note to the two executors in pursuant of Clause 2 of his will, and notified them of what was to be inherited by PIERA VERRO. These were: ‘1.

The immovable property along Tando Drive, Lavington Nairobi where I presently reside’

2.

The money lying to my credit with the following banks: (a)

Giro Commercial Bank, Kimathi Street, Nairobi.

(b)

Barclays Bank of Kenya, Plaza Branch, Nairobi.

3.

Tanzanite Stones deposited with my sister Mita Joo.

4.

Valentine Fund Shares with CFC Bank Limited, Nairobi operated on my behalf by Rajeev Mediratta and Amish Gupta

5.

25% of my share holding in Aircraft Leasing Services Limited, Nairobi.

6.

One-half of beneficial interest in any life insurance policy that I may take out in the future as may be specifically provided for in the policy.’

Clause 4 in the Will is no longer relevant really because the deceased died before Piera Verri. At this point in my ruling, I wish to pose the following question, “Would that the objector refer to as the ‘advanced age’ of the executor, r GS Vohra and the “”nonresidence” in Kenya of the second executor Rajesh Vohra, affect the above legacies bequeathed to her, if the Executors were issued with the Grant of Probate, with written Will, as the date they petitioned for it in court?”. May be not.

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Secondly in the Will are the legacies to the deceased’s two children. This is found in Clause 3 of the Will which reads: “I give all my real and personal property whatsoever and wheresoever’s, other than the shares in various companies held by me in trust and also other than what I have given to the said PIERA VERRI as stated above, to my son PRAVIR VOHRA and my daughter RAYNA VOHRA in equal shares. My said executors and trustees shall hold the shares of each child in trust until the child has reached the age of twenty three years.”

A perusal of the Court file revealed an affidavit to the amended petition dated 5 February 2007 giving a list of the assets and debts of the deceased’s estate. There are only two real estate assets, one of which was bequeathed to Piera Verri. The rest of the assets are mostly stocks and shares, bank accounts, deposits, and other assets, and of course, debts. Addressing my mind specifically to the two children, I note that as at September 2006, when the objector filed “Objection to the making of a Grant”, they were aged 13 and 7 years old respectively. I suppose today November 2007 they would be aged 14 and 8 years old respectively. Clause 3 in the Will which I have already outlined stipulates in part: “My said executors and trustees shall hold the shares of each child in trust until the child has reached the age of twenty three years.”

Here again I would like to pose a question and that is “Would what the Objector refers to as GS Vohra’s “advanced age” and Rajesh Vohra’s “non-residence” in Kenya, affect the legacies to the children, if they were issued with the Grant of Probate? I have posed the above question because of the contents of the affidavit of Piera Maria Alexandra Verri alias PIERA VERRI, sworn on1 September 2006 where she averred inter-alia, “The estate of the deceased is very large and as has been clearly stated in the Will cannot be divided and distributed to the children until they attain the age of 23.” Is this the real bone of contention in this estate?

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The said affidavit goes further to state at paragraph 5: “That in view of the fact that one of the executors is of advanced years and the other is non resident, it would be expedient and in the interest of justice that an additional executor be appointed in addition to those mentioned in the Will and that I be added as such additional executrix being one of the beneficiaries and being the mother and surviving parent of the other beneficiaries who are the children of the deceased.”

Miss Quadros who represented to objector at the beginning of the proceedings, whilst arguing the case for her client submitted: ‘That for the sake of continuity and in the interest of justice, the deceased’s ex-wife should be added as an executrix being one of the beneficiaries and also mother of the deceased’s two children, so that she may protect the rights of the two children, and also supervise the assets to ensure that everything is done transparently as she has the interest of her children...’

Mr Orengo for the objector made more or less similar submissions in his closing replies about the objector’s responsibilities towards her two children who are beneficiaries in the will.

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As the mother of the deceased’s children, I believe that she has their best interest at heart. I would be surprised if she did not. What about the two executors? Is there anything to show their concern for the children, other than just wanting to perform the duty for which the deceased appointed them as executors? During the course of submissions before me, and particularly on 13 June 2007 Mr Sehmi, counsel for the first executor whilst making an oral application on behalf of his client, on the matter of access to the children submitted: ‘I wish to place on court’s record the matter of access of the executors to the children. I have written letters to my learned friend but received no response. The executors are making generous payments to the children and their mother (the objector). They pay KShs 150 000 p m. plus all the expenses of the children, including school fees, plus a car which has been provided to the objector. Further, the executors have carried out extensive renovations to the house at their expense.That they just wanted to know what is happening to the children, that is why they wanted to see them.’

Though the matter of access to the children was not part of the pleadings, the objector’s advocate responded to it by saying: ‘I was out of the country, besides, my client was in hospital having a baby.’

The objectors advocate did not deny Mr Sehmi’s submissions about the contributions the executors are making from their own resources to the objector and the children, before the Will is proved in court. In any event the contributions are contained in Mr GS Vohra’s affidavit of 5 February 2007.

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The advocates articulated the legal provisions found in the Succession Act Chapter 160, Laws of Kenya, which they wanted the court to consider whilst dealing with the objector’s request to be or not to be added as an executrix. The executors’ advocates being opposed to the objector’s request relied on the three decided cases by judges of this court, amongst other legal provisions as the ruling shows.The two decisions, namely, In Re Estate of Kilungu, (deceased) and In Re Katumo [2003] 2 EA 509 (deceased). Being decisions of judges of this court are not binding on me, but can be of persuasive value if I decide to adopt them. Bearing in mind the legal provisions and the case law cited, I am of the considered view that the following are some of the important points for decision. First is the fact that at this point in time, the one and all important question to which the court must find answer is to whom should a grant of probate with a written will to the deceased’s estate herein be issued? Should it be issued to the two executors appointed by the testator during his lifetime, or the two jointly with the objector with the objector who was not appointed by the testator, though the biological mother of the deceased’s children? As answer to that question will show clearly that the averment in the objector’s affidavit of 1 September 2006, that the ‘estate of the deceased is very large...and cannot be divided and distributed to the children until they attain the age of 23,’ is premature because the stage of ‘dividing and distributing the estate,’ is yet to come, and in any

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event, no estate can be divided and distributed without a grant of probate, such as this one having been issued and confirmed by court. This estate has actually stagnated because no grant of probate has been issued and confirmed. Secondly is the matter of the concerns raised about the two executors and the replies thereto. I have duly considered them and would go further to say that the concerns raised must be such as to make the executors named in a will, incapable of administering the deceased’s estate and hence the need for the court to appoint additional executors or executrix, as the case may be. I say this because the provisions of section 56 of the Succession Act which has the foot notes, ‘No grant to certain persons,’ does not include such restrictions as ‘advanced aged’ (71 years old) in this case and or ‘non-residence’ in Kenya. In any event, the 1st executor Mr GS Vohra in his affidavit of 5 February 2007, attested to his physical fitness and ‘capability to fulfilling his duties as an executor of the deceased’s will, and this was not challenged.’ Similarly, the second executor, Rajesh Vohra, though resident in the United Kingdom, was said to be in court at some stages during these proceedings and had also sworn an affidavit on 5 February 2007, confirming that the two, will ‘faithfully administer according to the law the estate which devolve upon them...’

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Forbid, then the relevant provisions of the Succession Act will have to come Third is the objector’s desire to protect and supervise the assets bequeathed to her children who are still under age, yet the assets will not become due to them until they reach the age of 23 years old. I can very well understand the anxiety and, or fears as the mother of the children but to me the issue is, first, whether there are any reasons to believe that the two executors will not act transparently in this matter? No such reasons were advanced in court. Further, is there cause to say with reasonable certainty that Mr G S Vohra will not make it through the administration of the estate due to his age? There is none, but in case he does not, God forbid, then the relevant provisions of the Succession Act will have to come into play and the court will no doubt be moved to protect the interests of the continuing trust by appointing an additional executor or executors as circumstances will determine. That stage, in my considered opinion, has not come to pass. Finally and very important, is whether the executors named in the will, have the interest of the beneficiaries, especially the two children at heart? That issue is very ably addressed by the affidavit of GS Vohra of 5 July 2007 which I have already referred to, at paragraph 17. Over and above this, were the persistent requests by counsel for the 1st executor during the hearing, to allow his client, who is the children’s grandfather access to the children whom he had not seen for a long time. These requests caused me to make an order allowing for such access only once, on humanitarian grounds, though I am not sure that it was well taken because subsequently the objector’s previous advocate withdrew from acting and a new one was engaged. What the advocate told the court whilst making an oral application for withdrawal is on the court record. The issue of assets and liabilities, i.e. a full inventory of the deceased’s estate was addressed by the first executor’s affidavit dated 5 February 2007. I have read the

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affidavit carefully and I find that it contains information which the executor says is within his knowledge. Before I conclude this ruling, I need to make it clear that I have not addressed or made any adverse findings on the fact that the objector has ‘moved on’., i.e. that she lives with another man and they have had a baby who was born during the hearing of this cause as her lawyer submitted. This was not an issue before me, and in anyway¸ the deceased made provisions for her in his will which he made after divorce. Again, that matter has had no bearing to my finding in this ruling. All in all, I am satisfied that the two executors appointed by the deceased in his will, are capable of and will administer the estate faithfully, dispute Mr GS Vohra’s age of 71 and Rajesh Vohra’s non-residence in Kenya, because they have the interests of the beneficiaries at heart. Though the objector prayed that she be added as an executrix, I find that the law does not allow me to do so., and to this extent, I adopt the findings of the decisions of Nambuye J and Khamoni J and Githinji J (as he then was), which I have decided to follow. Further still, my consideration of the evidence in great detail in this succession cause has made me come to the conclusion that no circumstances exist to warrant me to exercise my discretion under section 53 of the Succession Act, and add the objector as an additional executrix. I therefore move to dismiss the ‘Objection to the making of a Grant’ and ‘Petition by way of cross-application,’ filled by the objector. As this is a protracted family dispute, I order each party to pay their own costs. ***

10.4 GRANT

OF

PROBATE

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A grant of probate issues in cases where the deceased has died testate, and has appointed an executor who is willing to act. The form of the grant is stated in section 53(1)(a)(i) of the Law of Succession Act, while the effect of the grant is set out in section 80(1) of the Act. These provisions state as follows: ‘53(1) A court may: (a)

Where a deceased person is proved (whether by production of a will or an authenticated copy thereof or by oral evidence of its contents) to have left a valid will, grant, in respect of all property to which the will applies, either: (i)

Probate of the will to one or more of the executors named therein; or

(ii)

...

80(1) A grant of probate shall establish the will as from the date of death, and shall render valid all intermediate acts of the executor or executors to whom the grant is made consistent with his or their duties as such.’

Cases numbers 166, 167 and 168 deal with grants of probate and state the effect of the grant of probate. Cases numbers 170 also states the legal position on grants of probate.

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Kothari v Qureshi and another [1967] EA 564 (Rudd and Mosdell, JJ) (An executor derives his power and authority from the will, and his right to act as executor dates to the date of death. He can file suit before the grant of probate and the making of the grant thereafter merely authenticates his acts)

CASE NO. 166

A respondent in a tenancy dispute died and the appellant moved the court for the appointment of his legal representative. The respondent had apparently died testate, leaving a will which had appointed an executor. The High Court ordered that the executor be appointed administrator ad litem of the respondent, and it was further directed that upon grant of probate of the will the executor was to remain on record in the matter as legal representative. The appellant subsequently objected to the order on the basis that there was no grant of probate and hence no legal basis for the executor’s appointment as legal representative. It was held that an executor may commence suit on behalf of an estate before the grant of probate, as his rights as executor exist as from the date of death and the grant of probate is mere evidence of this.

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RUDD J: The term legal representative is defined in section 2 of the Civil Procedure Act as meaning a person who in law represents the estate of a deceased person in suits other than representative’s suits. This definition is quite different from the Indian definition of the term or expression. Where a person dies leaving a will appointing an executor, the person so appointed executor represents the estate of the deceased testator as from the date of the death of the testator, unless the executor renounces the executorships, and if he had intermeddled in the estate he cannot renounce the executorship. In this case the executor, by consenting to be put on the file as a party, thereby intermeddled in the estate and, by appearing through an advocate to conduct the appeal, he has further intermeddled in the estate. It is elementary law that an executor‘s title dates from the death of the deceased and springs from the will not from the grant of probate. An executor’s actions before probate are valid in themselves without recourse to any doctrine of relation back and they have effect by virtue of the will. Probate is merely the authentication of the will in such cases and if the will is ultimately proved no one can question the validity of such acts. An executor may commence suit before grant of probate can carry on the proceedings without grant as far as is possible until he has to prove his title, when of course he must be able to establish the grant of probate because that is the proof or

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evidence of his title. His rights exist as from the death of the testator and the grant is only required as evidence of this. The position of an administrator is different; his rights date from the grant of letters of administration and any prior acts of administration of the estate can only be validated by the doctrine of relation back from the date of grant. An executor can before grant of probate commence an action, release a debt and generally act as the representative o f the deceased until he is required to prove his title as such. No one can question his acts as personal representative if he is in fact the executor under the will, but to prove that fact and to establish the validity of his acts before probate the will must eventually be admitted to probate. Even if the executor died before probate his acts as executor are valid if the will is later proved. An executor can be sued before probate is granted if he does not renounce and if he has intermeddled in the estate he cannot renounce. Now applying these principles it seems clear to me that when a party to a suit dies and the suit does not thereby abate as regards the party’s estate the other side can apply before probate to have the deceased’s executor brought on record as the legal representative of the deceased and the executor can consent to be made a party to the proceedings as the legal representative of the deceased party. This is an instance of intermeddling. I do not think it matters that the consent order described him as administrator ad litem pending grant of probate. The important matter of substance is that the court accepted him as being the proper legal representative of the deceased for purposes of the appeal and appointed him accordingly. This was done with his consent. Sakina Sote Kaittany and another v Mary Wamaitha Nairobi Court of Appeal civil appeal number 108 of 1995

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(Gicheru, Kwach and Lakha JJA) (The executor derives his authority from the will and not from the grant of probate)

CASE NO. 167

The testator appointed his wife the executrix of his estate. A burial dispute erupted between her and another woman. The court held that where he died testate, it was the duty of his executor to bury the body of the deceased within the means of the estate. It was further held that an executor can begin to exercise his duties as executor without waiting for a grant of probate since he derives his authority from the will and not the grant. It was stated that a challenge to the validity of the will does not mean that the executorship is suspended until the dispute is resolved.

LAKHA JA: This court in the already celebrated case of Virginia Wambui Otieno v Joash Ochieng Ougo and Omolo Siranga (1982-88) 1 KAR 1049, Nyarangi JA (as he then was)

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delivering the judgement of the court, after a long and careful review at page 1058 stated as follows: ‘Now where a married woman dies leaving an estate and a man dies leaving an estate, the burden of burying both of them falls upon their personal representatives. The categorical conclusion is that the wife never had any duty at common law to bury her husband.That was always the duty of his personal representatives. While the wife would no doubt be consulted as to the type of burial to be undertaken, it was the duty of the personal representative to bury the body of her husband within the means of the estate.’

It must be obvious by now that the duty to bury the deceased is on the executor. The next logical question then is who in the present case is the executor? Section 2(1) of the Succession Act Chapter 160 defines an executor as follows: Executor means a person to whom the execution of the will of a deceased person is by the testator’s appointment confided.’

And section 80(1) of the Succession Act Chapter 160 provides: ‘a grant of probate shall establish the will as from the date of death and shall render valid all intermediate acts of the executor or executors to whom grant is made consistent with his or their duties as such.’

Accordingly, in my judgement the respondent answers the description of an executor she having been appointed by the deceased as such in his will. But two objections are raised. First, it is submitted that the respondent has not yet obtained a grant of probate. That, I think, is quite untenable. The two provisions above referred to make it quite clear that that is not necessary. So does the case of Kothari v Qureshi [1967] EA 564 wherein at p 566 it is stated:

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‘where a person dies leaving a will appointing an executor, the person so appointed as executor represents the estate of the deceased testator as from the date of the death of the testator, unless the executor renounces executorship, and if he had intermeddled in the estate he cannot renounce executorship...It is elementary law that an executor’s title dates from the death of the deceased and springs from the will not from the grant of probate.’

In Meyappa Chetty v Supramarian Chatty (1916) 1 AC 603 Lord Parker of Waddington delivering the judgement of the Privy Council stated at page 608: ‘It is quite clear that an executor derives his title and authority from the will of the testator and not from any grant of probate.’

Secondly, it is urged that the will has been challenged and that until the challenge fails the executorship is in abeyance.That, in my judgement, cannot per se be correct having regard to the statutory provisions and the case law above cited. I know of no authority (and none was cited) in support of the proposition that when there is a challenge to a will the executorship remains in limbo until the challenge fails. If anything, in volume 17 of Halsbury’s Laws of England (4 ed) at paragraph 730 it is stated that ‘an executor may generally do before probate all things which pertain to the executorial office.’

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Lalitaben Kantilal Shah v Southern Credit Banking Corporation Limited Nairobi (Milimani) High Court civil suit number 543 of 2005 (Kasango J) (An executor derives his title from the will and all the estate in the testator’s estate vest in the executor on the testator’s death, and he can do any act before probate, which is a mere authentication of his title)

CASE NO. 168 .

The plaintiff was the executrix of her deceased husband’s estate, and sued the defendant with respect to property registered in the name of the deceased. The defendant objected saying that the plaintiff had not yet obtained a grant of probate with regard to the property, and therefore her suit was incompetent. It was held that the property of a deceased person vests in his personal representative, and that by virtue of section 80(1) of the Law of Succession Act the right to act on the estate of the deceased is established from the date of death, since where the deceased died testate since the executor derives his authority from the will itself. It was further held that an executor can commence action without a grant of probate, and that once a grant was issued to the plaintiff all the intermediate acts undertaken without the will would be validated.

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KASANGO J: Having cleared the air, on that issue, that the plaintiff ’s case is one of testate, then the section that is applicable is section 80(1) Chapter 160. Under this section, once a grant is issued to the plaintiff all the intermediate acts that the plaintiff will have undertaken will be validated. But I believe the situation in the case of testate is better understood by quote from the book Williams on Wills, Seventh Edition, page 225as follows: ‘Since the executor derives his title from the will and all the estate and interest in the testator’s property vests in him on the testator’s death he can do any act before [probate, which is a mere authentication of his title.’ ***

10.5 GRANT

OF

LETTERS

OF

ADMINISTRATION

These are granted in two instances: where the deceased died testate but there is no proving executor, and where the deceased died partially or wholly intestate. There are two types of grants of letters: with will annexed and in simple administration. Grant of letters with will annexed is given where there is no proving executor, while letters in simple administration is given in intestacy. The relevant provisions are found in sections 53(a) (ii) (b) and 80(2) of the Law of Succession Act, and they provide as follows:

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‘53(1) A court may: (a)

Where a deceased person is proved (whether by production of a will or an authenticated copy thereof or by oral evidence of its contents) to have left a valid will, grant, in respect of all property to which the will applies, either: (ii)

(b)

if there is no proving executor, letters of administration with the will annexed; and

If and so far as there may be intestacy grant of letters of administration in respect of the intestate estate.

80(2) A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of the grant.’

Cases numbers 154, 169, 170, 171, 172, 173, 174, 175, 176, 177 and 178 and 173 illustrate the circumstances under which letters of administration are granted, they also discuss the effect of the grant. Roman Carl Hintz v Mwang’ombe Mwakima (1982 -1988) 1 KAR 482 (Kneller JA, Chesoni and Nyarangi JJA) (A personal representative of a deceased person in Kenya may sue for damages for the benefit of the estate of the deceased under the Law Reform Act before letters of administration to the estate have been obtained)

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CASE NO. 169

The deceased, a child of four years, died in a road accident, and his father filed a suit to recover compensation.The suit was commenced before the father had obtained a grant to represent the estate of the deceased. The propriety of the action was challenged, on the ground that since it was commenced on behalf of the estate it was incompetent as the person suing did not have a grant of representation. It was held, at the Court of Appeal, in a majority judgement, that the deceased’s cause of action was a property in the form of chose in action and that the same, although transmitted to the father upon the death of the deceased, did not vest in the father, and therefore there was no need for the father to take out a grant before commencing the action.

CHESONI AJA: By virtue of section 2(1) of the Law Reform Act damages recovered under the Act go to the deceased’s estate and not to his personal representatives as beneficiaries, regardless of who sues for the estate. It is subject to the deceased’s will, if any, and to the claims of his creditors before his personal representatives, even when they are heirs, can gain through participation in the estate.The cause of action vested in a deceased person before his death is, as I have already stated, on his death, transmitted to his personal representatives, who, in my view do not require letters of administration to sue for damages for the benefit of the deceased’s estate under the Law Reform Act. However, letters of administration are required to deal, in administration, with

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the damages recovered by the estate as a result of the action brought by the personal representatives or anyone else. The right of action under the Law Reform Act is quite distinct from the right of action under the Fatal Accidents Act (Chapter 32). Each Act is independent of the other. As already said under the Law Reform Act the right of action is for the benefit of the deceased’s estate whereas under the Fatal Accidents Act the right of action is for the benefit of the dependants of the deceased person.The learned judge, therefore, with respect, did not have to apply the provisions of the Fatal Accidents Act when considering the preliminary objection which was raised under the Law Reform Act. Nevertheless, in my opinion, the learned judge still arrived at the correct conclusion. For the reasons stated I would hold that the respondent has capacity to sue under the Law Reform Act as the deceased’s personal representative, the cause of action having transmitted to the respondent on his son’s death, but any money recovered would, of course, go to the estate of his deceased son. I would in the result dismiss this appeal with costs. NYARANGI AJA: In the case of Hilton v Sutton Steam Laundry (1945) KB 65, it was held, inter alia, that:

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‘A claim under the Law Reform Act…is a claim for the benefit of the estate; the money recovered falls into the estate and is subject to the will if any, of the deceased person and to the claims of his creditors. A claim under the Fatal Accidents Acts, on the hand, has this difference, that the money recovered…will go to the dependant(s) whether the action is brought by the personal representatives of the deceased or by the dependant in his personal capacity.’

The father of the deceased has claimed damages under the Law Reform Act not any rights. It is significant, in my judgment, that under the Fatal Accidents Act the action has to be brought by and in the name of the executor or administrator of the deceased person. If it was intended that an action under the Law Reform Act would be brought by an executor or administrator, specific provision would have been made accordingly. This would have been particularly so given that the Fatal Accidents Act commenced on 8 February 1946 whereas the commencement date of the Law Reform Act is 18 December 1956, ten years later. Subsection3 (b) of the Law Reform Act provides: ‘(3)

No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of the deceased person unless either: (a)

Proceedings against him in respect of that cause of action were pending at the date of his death; or

(b)

Proceedings are taken in respect thereof not later than six months after his executor or administrator took over representation.’

The role of an executor or administrator appears to be limited to a cause of action in tort in respect of which proceedings are taken not later than six months after taking representation. The reference to executor or administrator under section 4(5) of the Law Reform Act is confined to damages affected by contributory negligence and in section 5(2) of the Law Reform Act an executor or administrator is assigned duties

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under the Workman’s Compensation Act. There is no other mention or reference to any executor or administrator in the Law Reform Act. It seems to me having regard to section 2 of the Law Reform Act that a parent or next of kin or a personal representative can act as a representative of a deceased person and file an action for the benefit of an estate of a person deceased without a grant of probate or letters of administration to the estate. There is no express prohibition directed at personal representative or next of kin. There is no requirement that only an administrator or an executor can represent a deceased person. The money recovered on behalf of the estate is put into the estate and would thereafter be subject to the claims of his creditors, if any. If the deceased made no will, the person wishing to deal with the estate has to obtain letters of administration. But that would be after damages recoverable for the benefit of the estate of the deceased person have been litigated and decided upon. The deceased’s cause of action is a right which is transmitted to the personal representative or next of kin. For the reasons given I would hold that the plaintiff as the male parent of the deceased child was entitled to file this suit.

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KNELLER JA (dissenting): The right of action vested in the deceased himself for his injuries passes under the Law Reform Act to his personal representatives and is for the benefit not of the dependants of the deceased, as has been spelt out earlier, but for his estate. See Munkman’s Damages for Personal Injuries and Death (6 Ed) page 135. According to section 2 of the Law of Succession Act a personal representative is someone who has been granted letters of administration to the estate of the deceased intestate. Among the powers which a personal representative has, subject only to any limitation imposed by his grant, is one to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arise out of his death for his estate. Section 82(2) (a) Law of Succession Act. This, in my judgment, is a pointer to who has the right to bring this who is the personal representative action under the Law Reform Act for the estate of Mwakima Mwang’ombe. It will not necessarily be the deceased’s father who is the ‘personal representative’ for he may be a lunatic or have been estranged from the deceased or out of the country or even in detention, and so forth. The provisions of this Act are to amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of deceased persons. There are many instances of limited grants in the registry of Mombasa which Mr. Msagha-Mbogholi could have followed e.g. Re the estate of Karichwa Pola Probate and Administration Cause 25 of 1982; Re the estate of Thomas Kazungu Kavivya Kazau Probate and Administration Cause 100 of 1982. Someone in each has been given a grant for the purpose of filing such an action. See also s 54 of the Law of Succession Act. It may well be that in many instances the sole heir or one of the heirs of a child is his or her father, but without a grant, general or limited, of letters of administration to the estate the heir cannot represent that estate and bring an action on its behalf because until the grant is obtained by someone the estate (and the legal chose in action) is

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vested in the court. The form of the grant bears this out. When the grant is obtained the estate and the legal chose in action pass automatically to the administrator. The situation is the same in England though there they vest after the death of the intestate in the head of the division of the Supreme Court which deals with the administration of estates. Ingall v Moran [1944] 1 All ER 97. Ingall, the father of a minor son killed in a motor accident who brought a representative action under Order111, rule 4 (thus confessing he was not suing in his own right, and, generally, that he had no right in the action to prosecute any claim except in his representative capacity) alleged falsely but innocently that he was the administrator of the estate of his deceased son. The Court of Appeal held, among other things, that the father had no shadow of title to his son’s legal chose of action which survived for the benefit of the estate under the Law Reform (Miscellaneous Provisions) Act 1934 until he had a grant of letters of administration to the estate. So here, too, in my respectful view, Mwang’ombe Mwakima, the respondent father, did not at common law or in equity or under any written law before or after the Law of Succession Act of Kenya have the right to bring this action under the Law Reform Act because the choice in action had not vested in him when he filed the plaint and has not done so to this day, and, if that is correct then the action was, and always remained, incompetent and if that were correct it would seem that he has lost the possibility of recovering about Shs 2 500 for the estate of his son. In the result, sorry though I would have been compelled to come to this conclusion, Mr. Inamdar is right and the appeal, in my view, should be allowed with costs here, the ruling of Bhandari J reversed with costs and the suit of the respondent father in the High Court be dismissed with costs. But this is not the judgment of my brethren so the result in fact is that the order of the court is that the appeal is dismissed with costs. Otieno v Ougo and another (number 4)

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[1986-9189] 1 EA 68 (Nyarangi, Platt and Gachuhi JJA)

CASE NO. 170

(A suit seeking to enforce a right or exercise a power as administrator of an estate is incompetent from its inception so long as it is commenced by a person who has not yet obtained a grant of letters of administration) The widow of the deceased asserted her right to bury his remains on the ground that she was, in her capacity as wife of the deceased, his personal representative, although she had not yet taken out letters of administration . It was held by the Court of Appeal that she could only assert that right, if at all there was such a right, upon obtaining a grant of letters of administration, and her suit seeking to enforce that right was incompetent as from the date of inception.

NYARANGI, PLATT and GACHUHI JJA: ...Now where a married woman dies leaving an estate and a man dies leaving an estate, the burden of burying both of them falls

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upon their personal representatives. The categorical conclusion is that the wife never had any duty at common law to bury her husband. That was always the duty of his personal representatives. While the wife would no doubt be consulted as to the type of burial to be undertaken, it was the duty of the personal representative to bury the body of her husband within the means of the estate.

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At common law before 1882, the wife would not have been able to take up letters of administration without the consent of her husband. It was after the Married Woman’s Property Act 1882, sections 1(2), 18 and 24, that a married woman could take up administration without the consent of her husband and to act in all respects in the matter concerning the intestate as if she were a female sole (see Williams on Executors and Administrators (14 ed) paragraphs 238 and 733). It is not therefore the common law that Mr Khaminwa is really relying upon if he is relying upon the position of the appellant as a personal representative. The appellant as merely the wife has no case at common law. It is statute. Either one goes to the provisions of the Married Woman’s Property Act which has been applied as a statute of general application in Kenya, (see I v I [1971] EA 278) or one goes to the Law of Succession Act (Chapter 160). It seems that after 1971 a married woman could take up the administration of her husband’s estate under the Act of 1882; but no doubt whether that was in fact the practice. However, she can certainly do so under the Law of Succession Act which is now a written law, which must be supplementary to the customary law.The married woman is the preferred choice by virtue of section 66 of the Law of Succession Act. But the difficulty remains that the general rule in relation to administration is that a party entitled to administration can do nothing as administrator before letters of administration are granted. Section 80(2) of the Law of Succession Act provides that a grant of letters of administration, with or without the will annexed, shall only take effect as from the date of the grant. In contrast section 80(1) provides that a grant of probate shall establish the will as from the date of death, and shall render valid all intermediate acts of the executor or executors to whom the grant is made consistent with his or their duties as such. This means that in the case of an executor he may perform most of the acts appertaining to his office before probate including the bringing of a fresh action, because he derives title from the will and the property of the deceased vets in him from the moment of the intestate’s death (see 1 Williams on Executors and Administrators (14 ed) paragraphs 84 and 230 et seq). But an administrator is not entitled to bring an action as administrator before he has taken out letters of administration. If he does the action is incompetent at the date of inception. The doctrine of relation back of an administrator’s title, on obtaining a grant of letters of administration, to the date of the intestate’s death, cannot be invoked so as to render the action competent (see Ingall v Moran [1944] 1 1 All ER 97, and the case which follow namely Burns v Campbell [1951] 2 All ER 965. This doctrine is as old as Wankford v Wankford (1702) where Powys J said: ‘But an administrator cannot act before letters of administration granted to him.’

If a person like the appellant acts before the grant she will be a volunteer. In fact the appellant was prevented from acting. She has not yet gained letters of administration. Her application has been contested. While she may be the preferred choice in section 66 of the Law of Succession Act she has not yet received her grant and consequently

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cannot lawfully act in that predicament . She cannot legally claim the right to bury the body of her husband as his personal representative. It follows that if the appellant relies on the common law itself it will not assist her. She is not yet able to sue as personal representative until the grant of letters of administration to her. (See 1 Williams (ibid) page 151). Zakayo Ngugi Mundia v Charles Gitonga Kamathi Nairobi High Court civil case number 5122 of 1987 (Ringera J) (A claim on behalf of the estate of the deceased is incompetent if commenced before obtaining a grant of letters of administration, obtaining a grant thereafter does not cure the initial incompetence of the suit)

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CASE NO. 171

The plaintiff commenced suit on her own behalf, of other dependants of the deceased and on behalf of the estate, claiming damages under the Law Reform Act and the Fatal Accidents Act. He had not obtained a grant of letters before filing suit. It was held that the claim under the Law Reform Act, being on behalf of the estate of a deceased person failed person for lack of letters of administration. It was stated that the fact of obtaining the letters after the filing of the suit does not cure the initial incompetence of the claim.

RINGERA J: This court has severally held that a grant obtained after commencement of the suit does not cure the initial incompetence of the suit at inception as the said grant operates prospectively and not retrospectively (see section 80(2) of the Law of Succession Act). I accordingly find that the plaintiff ’s claim under the Law Reform Act is incompetent and reject the same. And so out of the window goes the demand for damages for loss of expectation of life as well as the special damages claimed on account of the cost of police abstract and death certificate for the latter two are strictly costs to the estate and have no room in an award under the Fatal Accidents Act as they cannot be regarded as damages for loss of dependency or part of funeral expenses.

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Troustik Union International and another v Mrs Jane Mbeyu and another Nairobi Court of Appeal civil appeal number 145 of 1991 (Apaloo CJ, Kwach, Cockar, Omolo and Tunoi JJA)

CASE NO. 172

(A person, whether a spouse or not, cannot sue on behalf of the intestate estate of a deceased person unless they have a grant of letters of administration at the time of filing the suit. Any suit filed on behalf of the estate of the deceased intestate, under the Law Reform Act or otherwise, would fail for lack of letters at the time of commencing action).

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The respondents had commenced suit under the Law Reform Act seeking compensation on behalf of the estate of their deceased husband. They had not obtained grant of letters of administration before filing suit. It was held that their claim failed as they had no standing to sue on behalf of the estate since they had no authority to represent the intestate estate of their deceased husband, since such authority stems from a grant of letters of administration which they did not have at the time of filing suit. APALOO CJ, KWACH, COCKAR, OMOLO and TUNOI JJA: The appellants complained that the respondents lacked standing to present and prosecute a suit for the benefit of the deceased’s estate. The reason they say, is because the respondent did not obtain letters of administration before commencing the suit. Accordingly, they say the award of damages made in their favour was void as was the action itself. The respondents replied that the suit was competently filed and that the judge’s holding that it was a valid suit was right and should not be disturbed. To buttress their submission, they cited and relied on a decision of the ordinary bench of the court in the case of Roman C Hintz v Mwang’ombe Mwakima (1988) 1 KAR 482 decided on the 26 July 1984. In that case, as in this, the capacity of a plaintiff to commence an action for the benefit of a deceased’s estate under the Law Reform Act was disputed. In a split decision, the court decided that such an action could be competently set on foot without first obtaining letters of administration. The appellants say that that case was wrongly decided or at any rate, is no longer good law and invited us to so hold. This is a bold submission and we must examine whether that contention is soundly based. The common law rule on this matter is expressed in the Latin maxim ‘actio personalis moritor cum persona’ that is, a personal action dies with the person. This rule was, to a large extent, supplanted by the Law Reform Act. That Act keeps alive, with few exceptions, causes of action which vest in a person since deceased. Accordingly, to determine who is empowered to enforce that chose in action, for what purposes, and when in point of time, one must look at that Act and allied several legislation. One such enactment is the Law of Succession Act (Chapter 160). section 2 of that Act provides in mandatory terms, that unless any other written law provides otherwise, the provisions of the Act ‘shall constitute the law in Kenya in respect of and shall have

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universal application to all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act.’ The Act came into force on the 1 July 1981.The person whose death and succession gave rise to this suit, namely, John Katembe, died on the 10 April 1984. To determine who may agitate by suit any cause of action vested in him at the time of his death, one must turn to section 82(a) of the Law of Succession Act. That section confers that power on personal representatives and on them alone. As to who are personal representatives within the contemplation of the Act, section 3, the interpretative section, provides an all inclusive answer. It says ‘personal representative means executor or administrator of a deceased person.’ It is common ground that the deceased in this case died intestate. Therefore, the only person who can answer the description of a personal representative is the administrator of the estate of the deceased. The next enquiry must answer the question, who is an administrator within the true meaning and intendment of the Act? Section 3 says ‘administrator means a person to whom a grant of letters of administration has been made under this Act.’ It is not in dispute that the two respondents, who invoked the aid of the court to agitate the cause of action which survived the deceased, were not persons to ‘whom a grant of letters of administration have been made under the Act’ i.e. the Law of Succession Act.They did not even pretend to be such.The only capacity, in which they sought to enforce the deceased’s chose in action, was as dependants of the deceased, it was within their legal competence to claim damages for loss of dependency under the Fatal Accidents Act.

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But paragraph 8 of their amended plant averred that ‘the plaintiffs bring this action under the provisions of the Law Reform Act and the Fatal Accidents Act and the following persons as dependants of the deceased, who have suffered loss and means of support and maintenance.’ The plaint then mentions the plaintiffs as widows and five minors. Apart from other submissions, the appellants, by counsel, contended that as the respondents sought damages under the Law Reform Act without first obtaining letters of administration, they lacked standing and their suit was incompetent therefore. This was disputed by the respondents who, for their part, relied on the Hintz case to which we referred. the appellants replied that the holding was overruled in the subsequent holding of the Court of Appeal in Virginia Otieno v Josh Ougo and another (1988) 1 KAR 1048 decided in 1987. The learned trial Judge gave consideration to these conflicting submissions and in the end, resolved it in the respondents’ favour. He held that the Hintz holding was still good law and that: ‘The plaintiffs in this case have the capacity to bring this action under the Law Reform Act having not purported to bring it as administrators of their deceased husband’s estate without letters of administration.’

Having so held, he proceeded to award damages in their favour. A close reading of the judge’s judgement suggests that his real reason why he thought the respondents could competently sue to enforce the deceased’s chose in action was because ‘they established a sufficiently close relationship with the deceased.’ So he pronounced categorically as follows:

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‘I hold that the plaintiffs in this case had the capacity to bring this action under the Law Reform Act, not having purported to bring it as administrators of their deceased husband estate without letters of administration.’

The learned Judge did not advert his mind to the Law of Succession Act from which he could have derived a great deal of assistance and by which he was bound. Such help as he thought he could get was from the majority judgement in the Hintz case. Now, what is the ratio of the judgement in that case? The leading judgement of the majority was delivered by Chesoni, AJA (as he then was). Having distinguished the English law from Kenya law, he said:

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‘In the present case, the deceased’s cause of action was a chose in action. It was property. In Kenya, I would say intestate’s property is transmissible to his personal representatives e.g. next of kin although it may also vest in his legal representative e.g. executor or administrator as the case may be.The deceased child’s property was on his death therefore transmitted to and not vested in his father.’

With great respect, we have not found it easy to comprehend what seems to be an authoritative statement of the succession law in Kenya. No customary notions were involved in his case. At common law, death by itself automatically divests the deceased of his chose in action.The reason for this is because in law, the dead have no rights. But no legal right is without an owner so it must be vested in a person or entity. According to English law before the Judicature Act 1873, the personal property of an intestate in the interval between death and the grant of letters of administration was deemed to be vested in the judge of the Court of Probate and since 1925, by the provisions of the Administration of Estates Act of that year, the property of an intestate before grant vests in the President of the Probate Divorce and Admiralty division. In some Commonwealth jurisdictions, such right is vested in the Chief Justice or some other statutorily designated body or entity. Our Law of Succession Act (Chapter 160) did not provide for the vesting of an intestate’s property between the date of death and the grant of letters in any entity. So Kneller, JA suggested in the Hintz case, that it will be vested in the courts. Such suggestion conforms with the common law notions of transmission of an intestate’s right or estate. It ought to be remembered that all these temporary custodians of an intestate’s rights or estate vests automatically and by the force of the grant in the administrator. With great respect, we find no warrant for Chesoni, AJA’s statement that in Kenya an intestate’s property is transmissible by the fact of death to his personal representatives whom he equates with his next of kin. Neither do we find any authority in law for his somewhat contradictory statement that the child’s property was, on his death, transmitted to and not vested in his father.We think this statement, with respect, shows some confusion of thought. If death by itself transmitted the estate to his father, why did it not vest in him? If the chose in action was not vested in him and as it was not his own chose, then what standing did he have to enforce it by action? Clearly, he could not have done it under the Law of Succession Act (Chapter 160) or even the Indian Succession Act which was repealed in 1981. Then in the concluding sentence of his judgement, he said: ‘For the reasons stated, I would hold that the respondent has capacity to sue under the Law Reform Act as the deceased’s personal representative the cause of action having been transmitted to the respondent on his son’s death.’

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It is to be noted that the learned judge did not say the cause of action ‘vested’ in his father. If it was validly transmitted to him by law, why did the learned judge shrink from saying it was vested in him? That is the appropriate word in this branch of the law and that is the word used by the Law of Succession Act. With profound respect, the concurring judgement of the late Nyarangi, JA was no more enlightening than his learned brother’s. He quoted section 191 of the Indian Succession Act that: ‘Letters of administration entitle the administrator to all rights belonging to an estate as efficiently as if the administration had been granted at the moment after death.’

But with respect, that section did not help his appreciation of the issue in this case. If letters of administration vests all rights of an intestate in the administrator at the moment of death, what right would Mwang’ombe’s father have left to agitate his son’s preserved chose in action if some other person than himself, were granted letters of administration? Surely, there would be no right which can provide a standing for himself or his ‘personal representatives’ which in his terminology, means close relatives, to litigate his deceased son’s statutorily preserved chose in action? But it should be remembered that ‘personal representative’ as known in this branch of the law, are persons who obtain probate or letters of administration and not blood relatives however close, we think, with respect, both concepts were confused in the majority judgement.

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…Had Bosire, J, in this case applied the clear provisions of the Law of Succession Act, he would have been obliged to reach the conclusion that the deceased’s chose in action cannot properly be vested in or be agitated in court by wives qua wives. We think he was led into error by reliance on the majority decision in Hintz case which, in our opinion, is incapable of support. This court is not the only judicial organ that has felt unimpressed either by the reasoning or conclusion of the Hintz judgement. Our attention has been drawn to no fewer than three judgements of the High Court which felt unable to subscribe to the Hintz ruling that in Kenya, a plaintiff who has not obtained letters of administration has the right to enforce a chose in action belonging to an intestate’s estate. In Kidede v Amin (High Court civil case number 83 of 1978) (unreported), Simpson J, refused to award damages for loss of expectation of life to the estate of an intestate under the Law Reform Act as no letters of administration were taken. In 1988 in Ochola v Langat (High Court civil case number 3081 of 1986) (unreported), Shields J refused to award damages under the Law Reform Act to a plaintiff who had taken no letters of administration in respect of an intestate’s estate. In 1990 in Kuria v Shah (High Court civil case number 122 of 1986) (unreported) Akiwumi J (as he then was) concurred with the decision of Shields J in the Ochola case and declared incompetent a plaint in which a plaintiff sought to sue in respect of an intestate’s estate without first obtaining letters of administration. That is the beaten track of the decision. But by far, the highest judicial authority which, by necessary implication, repudiated the holding in the Hintz case is the often cited Otieno v Ougo case decided in 1987. The question at issue in that appeal was the right of a widow to bury her intestate husband when she obtained no letters of administration to his estate. The court gave vent to an important principle of law of universal application with respect

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to the right of a party to fulfil the role of an administrator of an intestate without obtaining letters of administration. The court, inter alia, observed: ‘The administrator is not entitled to bring an action as administrator before he has taken letters of administration. If he does, the action is incompetent at the date of its inception.’

It is significant that Nyarangi JA, who co-authored the Hintz judgement and who presided over the Ougo appeal, subscribed to this statement of the law or at any rate, did not dissent from it. It was he who stated in the now famous Hintz case that: ‘It seems to me, having regard to section 2 of the Law Reform Act that a parent or next of kin or a personal representative can act as a representative of a deceased person and file an action for the benefit of a deceased estate without a grant of probate or letters of administration to the estate.’

The Hintz decision has stood for nine years, but its life was not undisturbed. Its authority as a judicial precedent has been seriously undermined by the many cases to which we have referred. Perhaps, it is not uncharitable to conclude that its nine-year life was undeserved and we should now give this decision, whose life is in the balance, its coup de grace and lay it safely to rest. Mr Khanna invited us to say that the Hintz appeal was wrongly decided by the majority and that we should overrule it. In view of what we said in the foregoing paragraphs, we respond positively to that invitation and hold that the Hintz case is no longer good law, if it ever was.We think it must go, and the decision of Bosire J which was founded on it, must go with it. We conclude, therefore, that the damages awarded in favour of the respondents in the sum of KShs 50 000 under the Law Reform Act was wrong and ought to be set aside with costs. We do so order. Peter Maundu Mua v Leonard Mutunga and another Machakos High Court civil case number 305 of 1995

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(Mwera J) (A deceased plaintiff cannot be substituted by a person who has not yet obtained a grant of letters of administration to his estate) CASE NO. 173

The suit was commenced by a plaintiff who subsequently died and his place was taken by his widow and his son. Before seeking the substitution of the plaintiff by themselves, the mother and son had not obtained grant of letters of administration. On a preliminary objection raised by the defence, it was held that the two were not legal representatives of the deceased, as they had not obtained letters of administration to the estate of the deceased original plaintiff, and they could not therefore take his place by substitution.

MWERA J: The court on perusing especially Order 23, rule 3(1) under which the current Plaintiffs, Peninah and her son moved to take the place of the deceased Peter Maundu comes up with this:

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‘3(1) Where one two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. 3(2)

…’

The Civil Procedure Act defines legal representative as: “… .a person who in law represents the estate of a deceased person, where a party sues or is sued in a representative character the person on whom the estate devolves on death of the party so suing or sued.”

Now a person in law who represents an estate of a deceased person must be given by law such capacity and authority. That only comes by way of grant of probate or letters of administration. Accordingly one without such grant cannot be termed a legal representative of an estate of a deceased person. Peninah and Joseph have not shown this court that they held a grant to the estate of the late Peter Maundu in order to continue with the suit he left pending. It is no matter the application to substitute was opposed by the defence. But a point of law can be raised as has been done here. Without this court at this point saying whether a personal injury suit does or does not survive its owner, as that was not ventilated here, the preliminary point of law is upheld and the suit herein is dismissed with costs. Peninah wife of Maundu and Joseph son of Maundu are not competent to continue with this suit as they cannot in law be considered “legal representatives” of the late Peter Maundu, the original plaintiff. Preliminary point upheld. Suit dismissed.

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Orders accordingly.

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Coast Bus Services Limited v Samuel Mbuvi Lai Nairobi Court of Appeal civil appeal number 8 of 1996 (Gicheru, Tunoi and Shah JJA) (An administrator is not entitled to bring an action as administrator before he has taken out letters of administration. If he does so, the suit would be incompetent as at the date of inception and the doctrine of relation back will not apply to validate it).

CASE NO. 174

The issue arising here was whether letters of administration obtained by a party after the date of filing suit give him locus standi to make claims under the Law Reform Act (Chapter 26). The respondent filed suit at the High Court on 26 July 1993, claiming damages under the Fatal Accidents Act and the Law Reform Act. Damages were subsequently awarded under both statutes. He obtained a limited grant of letters of administration on 8 November 1994. Appeal was filed by the appellant on the grounds that the respondent was not the personal representative of the deceased at the time he filed suit and therefore his claim under the Law Reform Act was incompetent and ought not to have been entertained. The Court of Appeal held that the said claim was incompetent for lack of letters of administration at the time of filing suit on behalf of the deceased.

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GICHERU, TUNOI and SHAH JJA: Mr Chacha Odera who appeared for the appellant argued that obtaining letters of administration after the date of filing does not validate the award made under the Law Reform Act. He invoked aid of section 80(2) of the Law of Succession Act in support of his argument. The said section reads: ‘80(2) A grant of letters of administration with or without the will annexed shall take effect only as from the date of the grant.’

This sub-section can only be read to say that an administrator is not entitled to bring an action as administrator before he has taken out letters of administration. If he does the action is incompetent (in relation to relevant claim) as at the date of its inception. The doctrine of relation back of an administrator’s title, on obtaining a grant of letters of administration, to the date of the intestate’s death, cannot be invoked as to render the action competent. Quite clearly the respondent lacked standing to present and prosecute a suit for the benefit of the deceased’s estate. The point was decided by a five judge bench of this court in the case of Troustik Union International and another v Jane Mbeyu and another (civil appeal number 145 of 1990, unreported).

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Martin Odera Okumu v Edwin Otieno Ombajo Nairobi High Court civil suit number 947 of 1996 (Khamoni J)

CASE NO. 175

(A person who has not obtained letters of administration can lawfully do nothing as administrator before the grant of letters) A burial dispute pitted two families over the burial of a deceased woman. Her husband claimed the body in his capacity a husband, while her brother argued that she had divorced the husband and had made a will directing that he should not be allowed to participate in her burial. The court found in favour of the husband.

KHAMONI J: As a general rule the parties entitled to administration can do nothing as administrator before letters of administration are granted by the court. Section 80(2) of the Law of Succession Act provides that a grant of letters of administration with or without will annexed shall only take effect as from the date of grant. An executor of a will, however, is by virtue of section 80(1) of the Law of Succession Act in a better position since the grant of probate to him establishes the will as from the date of death of the testator and therefore renders valid all intermediate acts of the executor to whom the grant is made consistent with his duties as such. It means he may perform most of the acts appertaining to his office before probate including the bringing of a fresh action because he derives title from the will and the property of the deceased vests in him from the moment of the testator’s death. The administrator is not entitled to do that. If he does, the action is incompetent at the date of its inception.

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Hence though a husband may be the preferred choice under section 66, he cannot legally claim the right to bury the body of his wife as her personal representative until letters of administration are granted to him

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Mary Mbeke Ngovu and another v Benard Mutinda Mutisya Machakos High Court succession cause number 352 of 1998 (Mwera J) (A suit commenced over a deceased person’s estate before grant of letters is made is incompetent, and amounts to intermeddling with the said estate) CASE NO. 176

This was an administration suit commenced by mother and son over property that belonged to their deceased husband and father, respectively. The plaintiffs had obtained a temporary grant of representation to the estate of the deceased registered proprietor of the property, shortly after they had commenced the suit. It was held that the suit was incompetent as the plaintiffs had not obtained representation before filing suit and therefore they had no authority to sue on property belonging to a deceased person

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MWERA J: What attracted this court’s attention most was that the plaintiffs/applicants procured a temporary grant to the estate of the late Ngovu Mwetha Mutune the claimed registered proprietor of Plot number 2562 on 15 December 1998 YET they had filed this suit on 13 October 1998. This in essence means that the plaintiffs were NOT the legal representatives of the deceased Ngovu when they began to litigate over the land in issue. In case of Trouistik Union International and another v Mrs Jane Mbeyu and another civil appeal number 145 of 1990 (Nrb) the five (5) Judges of Appeal deliberated over the competence of the action based on the Law Reform Act. Given, the action before us is not based on that Act but this court is minded to conclude that the principles enunciated in that appeal apply to our present case. In the Trouistik Union case two widows sued owners of a motor vehicle that knocked down and killed their husband, under the Law Reform Act (and the Fatal Accidents Act). They did this before and without having taken out a grant of letters of administration of the deceased’s estate. They got awards under both Acts in the High Court. On appeal, the learned judges found that the cause under the Law Reform Act was not maintainable by the widows because in trying to pursue a cause of action (tort) that survived their late husband, they were bound to take out a grant to administer his estate first. In this case as set out above the registered owner of parcel number 2562, Ngovu Mwetha, died before this suit by which the applicants seek an order against the defendant from “trespassing into the plaintiff ’s land.” In order to call land number 2562 “theirs” the plaintiffs should be registered over it (by way of lease, proprietorship etc) or be administrators/executors of the deceased Ngovu. Only then would they have locus standi to agitate this suit over that land. This is said in the light if the state of affairs which led themselves to a conclusion that Ngovu Mwetha died intestate. While considering the determination in the Trouistik Union case the Court of Appeal had recourse to the Law of Succession (Chapter 160) and made some reference

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to some cases including the case of Virginia Otieno v Joash Ougo and another (1982-88) 1 KAR 1048, quotation from which will appear below. Beginning with the Law of Succession (Chapter 160), the Act, it states in the preamble: “An Act of Parliament to amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of deceased persons; and for purposes connected therewith and incidental thereto.”

Ngovu Mwetha died on 8 April 1979. The plaintiff got a grant to administer his estate including parcel number 2562 on 15 December 1998. The suit was filed on 13 October 1998. But section 2 of the Act covers the case. To administer the estate of the late Ngovu Mwetha including bringing this suit, the plaintiffs could only possess authority by obtaining a grant of letters of administration first. Here they appear as plaintiffs “whose land” is being trespassed upon by the defendant. Later it transpired that while the first plaintiff is the late Ngovu’s wife, the second plaintiff is his son but one of them were administrators of Ngovu Mwetha’s estate before the filing of this suit. Section 82 of the Act says inter alia: “82. A personal representative shall, subject only to any limitation imposed by their grant, have the following powers: (a)

To enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arise out of his death for his estate;

(b)

….”

It needs no repeating that a “personal representative” means the executors or administrators of a deceased person.

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In this court’s view, by strong and irresistible analogy, the plaintiffs here ought to have procured a grant to administer the state of the deceased Ngovu Mwetha including parcel number 2562 before bringing this suit of trespass. In the Virginia Otieno case (above) the Court of Appeal was not dealing with claims under the Law Reform Act. That case concerned burial of a deceased person. His widow claimed that she had a right to do so yet the respondent resisted that. In passing, the Court of Appeal did remark on an administrator thus: “The administrator is not entitled to bring an action as administrator before he has taken out letters of administration. If he does the action is incompetent at the date of inception.”

In fact and in law one who brings an action over a deceased’s person estate without having a grant of administration may more correctly be termed an intermeddler because he has no authority in law to do that. Probably a correct party may come up later. In sum, this court dismisses the plaintiffs’/applicants’ application on the basis that they brought an incompetent suit in court right from inception. They did not have a grant to administer the estate of the late Ngovu Mwetha comprising parcel number Muputi/Kiima-Kimwe/1562. Costs to the plaintiff/respondent.

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Kenya Bus Services Ltd v Kawira [2003] 2 EA 519 (Omolo, Tunoi and Githinji JJA) (A suit commenced by a person who has obtained a grant of letters of administration is competent)

CASE NO. 177

Damages were awarded at KShs 2 240 000 under the Fatal Accidents Act and KShs 100 000 under the Law Reform Act. The award was challenged on grounds, inter alia, that the suit was founded on a grant of letters of administration issued by a Resident Magistrate’s Court, yet a Resident Magistrate’s Court can only make a grant where the estate does not exceed KShs 100 000, and therefore the suit was not competent or the court should not have awarded damages in excess of KShs 100 000. It was held that the suit was competently brought by a person who had properly obtained a grant of administration.

OMOLO,TUNOI and GITHINJI JJA: By ground 1 of the grounds of appeal, the appellant states that the Commissioner of Assize erred in law in awarding damages under the Law Reform Act when there were no letters of administration or any valid letters of administration before the court. The appellant’s counsel submitted in support of that ground, inter alia, that the Senior Resident Magistrates Court, Runyenjes, had no jurisdiction to give the grant of letters of administration, firstly because, there is a High Court at Embu and secondly, because the award of damages in the suit was over KShs 2 million.

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However, the record shows that the appellant’s counsel only contention was that if damages are being claimed under the Law Reform Act, the grant must be in existence before the filing of the suit. It was his submission in the trial that the grant was obtained on 15 December 1998, when the suit was filed and that it is the only issue which the lower court considered. The issue of the validity of the grant of the letters of administration was not before the superior court and with respect cannot be raised in this court. The respondent pleaded that she was suing as the administrator of the estate of the late Joseph Kinegeni M’Daka. By the date of filing the suit she had been granted letters of administration in respect of the estate of Joseph Kinegeni M’Daka. As the appellant did not prove that the grant of letters of administration was obtained subsequent to the filing of the suit the claim for damages under the Law Reform Act was competent. Moreover the magistrate who made the grant could not have known the amount of damages to be awarded to the respondent and the subsequent award of some KShs 2 million said to be outside the magistrate’s jurisdiction could not itself invalidate the grant.

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Elizabeth Ndulu Mathuva and others v Joseph Mbiu Muthiani and another [2008] eKLR (Sitati J) (An administrator has no authority to assert any rights as administrator before obtaining a grant of representation)

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CASE NO. 178

During the pendency of a petition for letters for grant of letters of administration intestate, the petitioners brought an application in the petition seeking orders to restrain the respondents from constructing houses on the property making up the estate, cultivating, cutting trees or in any way interfering with and intermeddling with the property of the estate. The application was premised on sections 45(1) and 47 of the Law of Succession Act and rules 59(5) (6) and 73 of the Probate and Administration Rules. In dismissing the application, the court held that the petitioners had not yet obtained representation to the estate and therefore they had no locus upon which they could seek any restraining orders against anyone.

SITATI J: 17. From all the foregoing submissions and the pleadings, the issue that arises is whether the respondents have shown that the applicants do not have the locus standi to be before this court on their application. the issues of law that have arisen on this application are very similar to the issues that were discussed by and adjudicated upon by the court in the Troustik case (Nairobi CA number 145 of 1991). In that case, the court considered not only the provisions of section 2(1) of Chapter 160 but also considered the provisions of section 3(1) and 82 of the Act. Section 3(1) of Chapter 160 defines, among others, an ‘Administrator’ as ‘a person to whom Grant of Letters of Administration has been made under this Act.’ It is a fact in the present case that apart from the filing of the Petition for Grant of Letters of Administration Intestate no grant has been made and therefore there is no administrator for the estate of Isaiah Mathuva Wambua Somba. Section 3(1) also defines ‘Personal Representative’ as ‘the executor or administrator of a deceased person,’ while ‘Representation’ is defined as ‘the probate of a will or grant of letters of administration.’ 18. ‘(2)

19.

In the affidavit in support of the application, Maitha simply describes the applicants thus at paragraph 2.: ‘That the first petitioner/applicant is the deceased’s widow whereas the second petitioner/applicant and myself are sons of the deceased.’

It is my view that in light of the provisions of Chapter 160 and the law as set out in the Troustik case (above) the applicants had no locus standi to bring their application before the court. Before the Troustik case (above) it was alright for relatives and others to litigate upon a deceased’s estate whether or not they had obtained Grant of Letters of Administration, but that position has now changed so that it is only personal representatives who have the power to enforce by suit or otherwise all causes of action which by virtue of any law, survive the deceased or arise out of his death for his estate. As the applicants have not shown

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that they are personal representatives of the deceased person in accordance with the provisions of sections 2(1), 3(1) and 82 of Chapter 160, their application is a non-starter. 20.

In the case of Otieno v Ougo (1988) 1 KAR 1048, a case that was decided in 1987 and whose principle was applied in the Troustik case, the court observed in part that::

‘The administrator is not entitled to bring as administrator before he has taken out letters of administration. If he does, the action is incompetent as at the date of its inception.’

21.

I entirely agree with this holding and also with Mr Mbithi’s submissions. I do finds and hold that the applicants’ application was incompetent as at the date of inception. I find that although Mrs Nzei relied on the same authority as the respondents did, the authority does not in any way aid the applicants’ case. The applicants would have been well buttressed by the decision in the Hintz case, but as stated earlier the decision in the Hintz case was found to be bad law that was laid to rest by the Troustik case.The applicable law in this case is Chapter160 and no other.

22.

In the circumstances, I do agree with the respondents’ contention that the applicants’ application is incompetent for the reasons that I have set out above. The application dated 20 December 2006 and filed in court on the same day is therefore struck out with costs to the respondents. ***

10.6 LIMITED GRANTS (a)

General

The court may issue limited grants under section 54 of the Law of Succession Act. Section 54 provides:

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‘a court may, according to the circumstances of each case, limit a grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule.’

Case number 174 describes the various limited grants provided for under the Law of Succession Act, and the procedures prescribed for obtaining such limited grants.

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Re Succession – Limited Grant [2000] 2 EA 495 (Ang’awa J) CASE NO. 179

(There are several types of limited grants, which are made for a variety of purposes.) Ang’awa J invited submissions on the appropriate procedure for limited grants, and thereafter gave a ruling identifying the various types of limited grants and clarifying the procedure for applying for the same.

ANG’AWA J iv)

Limited Grants

This brings me to the fourth issue. Namely: (a)

How many types of limited grants are there?

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I formed the impression that a majority of the advocates who appeared before me were not aware of the different types of limited grants there are. Most advocates would come seeking prayers for limited grant for filing suit yet their petition would be for letters limited ad colligenda bona: 1.

From the submissions made before me, the following seem to be the different types of limited grant. These are:

2.

Limited grants ad colligenda bona

3.

Limited grant ad colligenda bona defunct

4.

Limited grant administration pendete lite

5.

Limited grant ad litem

In our Kenyan law of succession, limited grants ad colligenda can only be issued by the High Court of Kenya sitting at Nairobi, Mombasa, Kisumu, Nakuru and Nyeri (see section 47, rule 36(3) LN 223/92). The magistrates’ courts have jurisdiction to hear succession matters only if the respective magistrate (not less than resident magistrate) is appointed by the Honourable Chief Justice to so act on behalf of the High Court. If that magistrate is stationed where there is a High Court in existence, then the High Court has exclusive jurisdiction. The Act recognises that there are remote areas in Kenya where parties may wish to have estates less than KShs 100 000 to be administered. In such a situation a resident magistrate may issue letters of administration and grant. This would include a limited grant where the value of the estate is less than KShs 100 000. No magistrate is permitted to deal with a probate matter where the High Court is established in the same station, no magistrate is allowed to hear a matter involving revocation of grant and no magistrate is permitted to issue a limited grant ad colligenda bona unless it is of apparent urgency and only limited to collection of assets within his areas and for payment of debts. The estate is not to exceed KShs 100 000.

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The Act states under section 54, one of the forms of grants as being limited grant “A court may, according to the circumstances of each case limit a grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule.” It seems that there is an argument that section 54 states the limited grant whilst section 67 outlines its procedure. I do not think this is the position.There is certainly a difference. This section reads: ‘1.

No grant of representation other than a limited grant for collection and preservation of assets, shall be made until there has been published a notice of the application of grant.’

Under the Probate and Administration Rules, it deals with limited grant ad colligenda bona. Rule 36 reads as follows: ‘36(1) Where, owing to special circumstances the urgency of the matter is so great that it would not be possible for the court to make a full grant of representation to the person who would by law be entitled thereto in sufficient time to meet the necessities of the case, any person may apply to the court for the making of a grant of administration ad colligenda bona defunct of the estate of the deceased.’

It is section 67(1) that describes the above rule. What then is a colligenda bona defunct (see above)? Kaburu was able to provide the definition of this from his authorities. There are in fact two forms: (i)

Ad colligenda means “For collecting; as an administrator or trustee ad colligendum.”

(ii)

Ad colligenda bona defunct means: for collecting the goods of the deceased.

It therefore means that rule 36(1) is specifically on the collection of the deceased’s goods and preserving the same. Ad colligenda bona under the Indian Succession Act:

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“where it is to the benefit of the absent or unknown next of kin, the court will direct an administrator ad colligenda bona...under special circumstances limited to collect the personal estate of the deceased, to give receipts for his debts or the payment of the same, renew lease of his business premises which would expire before a general grant could be but without powers to dispose of the lease...”

I am aware that the Rules require that each time the court issues a limited grant ad colligenda bona defunct it must be recorded in a register kept at the registry.The applicant is to file Form P and A 85, petition and Form P and A 19 the affidavit which is provided for under rule 12 of the Probate and Administration Rules. Now the advocates are not interested in collecting the goods of the deceased or to administrate the estate perhaps. What they wish to do is to obtain a grant for the purposes of filing suit. I believe they require to rely on section 54 which takes us to the Fifth Schedule of the Act. This Schedule outlines four types of limited grant. (b)

Grant limited in duration – (paragraph 1 -3)

This provides for a situation where a will is lost or misplaced, in possession of a person outside Kenya or for a will that cannot be found. A limited grant under this paragraph may be issued pending the original will being found. (c)

Grant for the use and benefit of others having right

Where the executor is absent from Kenya; whether there is a will, letters of administration, will annexed or in a case of intestacy (see paragraphs 4 – 6).Where the executors are minors or of unsound mind (see paragraphs 7, 9).Where a suit is pending

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touching validity of a will. In this latter situation (paragraph 10) it is a situation known as pendete lite (see 3 above). The meaning of administration pendent lite is where a grantee is appointed simply to administer the estate during litigation. For instance, if the will of the deceased is being contested, pending the determination of that dispute the court may appoint a grantee pendete lite to continue to administer the estate so as it is not wasted. the grantee is not permitted to distribute the estate but merely to manage the same pending litigation. The limited grant ad litem (see 4 above) is one normally used for prosecuting or defending proceedings begun in a court of justice.This type of grant is covered within our Succession Act in the Fifth Schedule paragraphs 11 – 16. It has been described as a grant for special purposes. (d)

Grant for special purposes

Where the executor is appointed for a limited purpose specified in the will (see paragraph 11). Where an executor gives authority to an attorney specified to a particular purpose.Where a sole surviving trustee dies leaving no general representative or one who is unable or unwilling to act as such (normally referred to as de bonis non) (see paragraph 20 Forms 87 and 19 in rule 12). Where a deceased being party to a pending suit dies and the executor or person entitled is unable or unwilling to act – a representative requires to be appointed (see paragraph 14).Where the person to whom probate or letters of administration has been made is absent from Kenya, a limited grant may be given for the purpose of enjoining a party to a suit brought against the administration (see paragraph 15). Where it appears to the court to be necessary or correct to appoint some person not normally entitled to administer an estate or part thereof as the court thinks fit. The other grant is grants with exception.

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(e)

Grants with exception

Paragraphs 17, 18 and 19 provide for situation where grant be made subject to certain exceptions. Under what rules should a person intending to file suit where the deceased having been or intended to file suit dies? Mr Hira argued that as the estate has remained unadministered, limited grant ad colligenda bona is sufficient to preserve the estate. If one applies under this grant then such a party had a right to file suit. that is what I understood the arguments submitted as being. Mr Kaburu on the other hand described this as administration ad litem. This is equivalent to section 222 of the Indian Succession Act of 1865 (later section 251 of the same Act) and section 162 of the Judicature Act 1925 of England. The words in all the three Acts are identical. Namely, administration limited to suit: ‘where it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unlikely to act, letters of administration may be granted to the nominee of a party to the suit, limited for the purpose of representing the deceased herein or in any other cause or suit which may be commenced in the same, or in any other suit between the parties, or any other parties

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touching the matters at issue in the cause or suit and until a final decree shall be made therein and carried, into complete execution.’

The Indian Succession Act (1865) section 222 was applicable in Kenya. It was considered in the Mombasa High Court case of Hadija v Iddi [1974] EA 50 by Sir Dermont Sheridan J. In the above case, the defendant was appointed the personal representative of a deceased driver against whom a claim was to be made.The plaintiff filed suit seeking for letters of administration be set aside arguing that letters can only be issued when there is a pending suit. It was held by the High Court, in interpreting section 222 of the Indian Succession Act, which is identical to paragraph 14 of the Fifth Schedule, that the appointment of a personal representative may be made even when there was no suit pending. (the case of Gibbs v Roy 85 CLJ 280 was considered). although this authority was dealing with a different aspect to paragraph 14, it most certainly noted that in order to apply for a grant limited to filing suit the rule becomes applicable. In contrast I did rule in the Estate of Nyamodi Succession Cause case that the application for limited grant was not entirely correct. a corporation had filed suit against the deceased whilst she was still alive. The deceased died. Her husband had predeceased her. The only person entitled to the estate were her adult children. All of them refused to take letters of administration intestate. The limitation of time in bringing a personal representative was running out. The corporation applied, under a certificate of urgency, to file an application under paragraph 14 praying for this court to appoint the children as administrators. I declined to do so as the rules require that the corporation nominate a person to take up the letters limited to that suit. This could have been the Public Trustee or even an advocate, which had not been done. (f)

Procedure for limited grant

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What I find is that advocates wishing to apply for limited grant for purposes of filing suit should come under paragraph 14 of the Fifth Schedule. I would agree with Mr Kaburu that this paragraph applied to intending or proposed plaintiff. Although the Act is clear on the affidavit to be filed as prescribed in rule 12, namely Form P and A 19, the petition has not been prescribed in to.The nearest Form is the one of P and A 90 which is for pendent lite.The Act is not silent on such situation. Where it comes to the forms to be applicable rule 70 is most helpful. It reads: ‘the forms set out in the First Schedule, with such adaptations, additions and amendment as may be necessary shall, when appropriate be used in all proceedings under these Rules: provided that the Chief Justice may by notice in the Gazette vary the forms and prescribe such other or additional forms as he thinks fit.’

This means that any applicant may modify, adapt or add to the form: ‘section 72 of the Interpretation and General Provisions Act Chapter 2 provides that, save as is otherwise expressly provided, whenever any form is prescribed by any written law an instrument or document which purports to be in that form shall not be void by reason of any deviation there from which does not affect the substance of the instrument or document and which is not calculated to mislead: Although the collection of forms in this Schedule does not purport to provide for every circumstance that may arise it contains the majority of the forms which, adapted when necessary will be found to be of general use by legal practitioner and members of the public.’ [Emphasis Mine].

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It therefore means that both the legal practitioner and members of the public may adopt the forms to suit the petition they are to bring in, if it has not been provided. The other issue is whether or not limited grant should be gazetted? Mr Kaburu argued that all grants must be gazetted. Section 67(1) was clear on the issue of publication. The only exception are grants limited ad colligenda bona. There has been recommendation from the committee looking into the establishment of the Family Court that all limited grants be gazetted, and that there must be consent from all the beneficiaries for making for such grants. I believe that gazettement of limited grant should be recommended and dealt with by the Rules Committee. I also believe that limited grant should not issue unless it is under such special circumstances as to allow it to be issued at the discretion of the court. As stated earlier full grants should always be applied for in order to limit duplication of grants unless otherwise stated. *** (b)

Ad Colligenda Bona

This type of limited grant issues in circumstances where the assets are in a precarious state and quick action is required for their preservation. These are governed by rule 36 of the Probate and Administration Rules. Cases numbers 180 and 181 illustrate the circumstances under which the court may make grants limited ad collligenda. Morjaria v Abdalla [1984] KLR 490 (Hancox JA, Chesoni and Nyarangi AgJJA)

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(A limited grant can be the basis for substitution of a deceased party in a suit or appeal, but the grant ad colligenda is usually restricted to the purpose of collecting and preserving an estate, unless it is modified for other purposes)

CASE NO. 180

A son obtained two limited grants, one ad colligenda bona and the other limited to the purpose of representing a deceased person in an appeal. Upon the grants being made to him, he sought the substitution of the deceased. The application was opposed on the grounds that that a deceased person could only be substituted by a person who had received a full, rather than a limited, grant of representation.The court held that a limited grant is good enough for the purpose of substitution of a deceased party, but pointed out that the grant ad colligenda bona is specifically designed for collection and preservation of an estate, unless the form is modified to suit other purposes specified in the grant as issued.

HANCOX JA, CHESONI and NYARANGI AJJA: Mr Khanna submitted, and we agree, that the High Court’s jurisdiction to grant representation is contained in sections 53 and 54 of the Law of Succession Act (Chapter 160). Since it is common ground that

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probate has not yet been granted in this case of Ranchod, and though we are informed that administration was granted in the case of Hariben with the will annexed, we only need to consider the latter section, because this matter has only now arisen due to Ranchod’s death. The section provides that a court may, according to the circumstances of each case, limit a grant of representation, which it has jurisdiction to make, we emphasise those words, in any of the forms described in the fifth schedule to the Act. Accordingly we also agree with Mr Khanna that rule 96, despite the use of the word ‘shall’ nevertheless only enables this court to appoint as a party to the appeal a person who has been properly made a legal representative by the High Court in exercise of its powers under the Act. To hold otherwise would mean that an incompetent person might be appointed a party to the appeal, as might have happened, for instance, in Gurbaksh Singh’s case, 52where the fifth appellant, who was an executor, had been temporarily of unsound mind. We therefore turn to the paragraphs in the fifth schedule to which Mr Khanna referred, and to the relevant rules in the Probate and Administration Rules, and to consider them in relation to the two limited grants that have been made in this case. The first was by Aganyanya J on February 24, 1984, but signed by Platt J, in High Court Succession case 120 of 1984, and the second by Masime J on 27 February 1984, in High Court, Nakuru, Succession case 9 of 1984. The second of these grants is annexed to Bhavin’s supporting affidavit and is in his favour, as follows: ‘to commence carry on or defend all actions and other proceedings touching the properties or any part thereof and affairs or touching anything in which the deceased may be in anyway concerned and especially to represent the deceased in civil appeal number 1 of 1982 in which the deceased is the co-appellant.’

In general for the purpose aforesaid to perform every other act whatsoever in or about the properties of the deceased as amply and effectually to all the aforesaid intents and purposes as the deceased could have done in her own proper person.

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Of the three paragraphs in the fifth schedule to which Mr Khanna referred only paragraph 14 has any relevance. It states: ‘when it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in the suit, limited for the purpose of representing the deceased therein, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.’

We therefore have to consider whether the words ‘pending suit’ are wide enough to cover a pending appeal. For this purpose we have to decide whether the appeal is a suit, because appeals are provided for by statute. Under section 2 of the Civil Procedure Act,‘suit’ means all civil proceedings commenced in any manner prescribed. According to Jowitt’s Dictionary of English Law, Second Edition,Volume 2 page 1718, the ‘suit’ means a following, any legal proceeding of a civil kind brought by one person against another. the Shorter Oxford English Dictionary (Volume II) offers several definitions of ‘suits,’ one of which is: 52

Gubaksh Singh and others v Bank of Credit and Commerce International, civil appeals numbers 52 and 53 of 1982 (Court of Appeal)(Unreported)

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‘pursuit, prosecution, legal process.’

The appeal is a civil proceeding between the parties which originated before the High Court. under section 47 of the Law of Succession Act, a judge of the High Court has jurisdiction to entertain an application, determine any dispute and make such orders as may be expedient. It would be illogical and futile if paragraph 14 did not relate to a suit as well as to an appeal.

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There can, we think, be no doubt that an appeal is a civil proceeding, commenced in a manner prescribed, and therefore fails within the definition of a suit. Consequently the High Court has power under paragraph 14 to grant representation for the purposes of a pending appeal. While we do not agree with Mr Gautama, who appears for the applicants, that this court cannot question or go behind the respective orders made by the High Court with regard to this case, we are satisfied that in so far as the order of Masime J granted limited letters of administration to Bhavin for the purposes of representing Hiraben in this appeal, it was a valid order under section 54 and paragraph 14 of the fifth schedule. We now turn to the other order which is purportedly made ad colligenda bona. This form of grant was inappropriate in the present case. This is self evident from rule 36 of the Probate and Administration Rules, to which Mr Khanna drew our attention, and of which sub-rule (1) and (2) are in these terms: ‘(1)

Where, owing to special circumstances the urgency of the matter is so great that it would not be possible for the court to make full grant of representation to the person who would by law be entitled thereto in sufficient time to meet the necessities of the case, any person may apply to the court for the making of a grant of administration ad colligenda bona defunct of the estate of the deceased.

(2)

Every such grant shall be in Form 47 and be expressly limited for the purpose only of collecting and getting in and receiving the estate and doing such acts as may be necessary for the preservation of the estate and until a further grant is made.’

The purpose of this form of grant is to collect the property of a deceased person where it is of a perishable or precarious nature, and where regular probate or administration cannot be granted at once – see Jowitt’s Law Dictionary, Volume 1 at page 45. It can include, for example, the vesting of a lease in the person in whose favour the grant is made, because it is obvious that the value of a lease would diminish with the passage of time, and therefore delay in the regular or general grant would justify its immediate disposal by someone who can deal with it for the benefit of the estate. this occurred in Whitehead v Palmer, (1908) 1 KB 151, where Channel J held that the defendant, as administrator colligenda bona, with power to sell or dispose of a lease, had correctly attempted to find a purchaser and was liable for mense profits for the period he had actually occupied the premises in question. However, we do not think that the appointment of a person ad colligenda bona can possibly include the right to stand in the shoes of the deceased for the purposes of instituting an action, or, indeed, an appeal, especially where there is a specific provision, paragraph 14 of the fifth schedule, designed for this purpose. The Latin verb colligere means to collect, bring together or assemble, and we are satisfied that this form of grant is only to be used for the purpose we have indicated, and not for purpose of representation in a suit or an appeal. Moreover, as Mr Khanna observed, this grant did not follow Form 47 in the fifth schedule to the rules as rule 36(2) requires. notwithstanding the foregoing, the grant of February 24 is specifically limited to ‘the

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purposes only’ of representing the deceased, that is to say Ranchod, in the present appeal. In our judgement, therefore, it is those words which should be looked at for the purpose of determining this part of the application. In themselves they constitute a valid grant pursuant to rule 14, and we are prepared to regard them as such. There is no need to resort to the earlier part of the grant, which in our view is surplusage. Re Kahawa Sukari Ltd [2004] 2 EA 93 (Ringera J) (A grant ad colligenda bona must state the purpose for which it is made)

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CASE NO. 181

The deceased was a director and shareholder of a company. When he died his son obtained a grant of letters of administration ad colligenda bona, which did not state the purpose for which it was issued. He presented the grant to the company and requested to be made a director and shareholder of the company. When the company refused, he filed suit under the companies’ legislation seeking various orders. It was held that a grant ad colligenda bona which did not state the purpose for which it was granted was void, and that a grant of letters of administration is not sufficient to constitute the holder a member of a company, since one has to comply with the relevant companies’ legislation provisions.

RINGERA J: The dispute herein was whether the petitioner herein was a member of the company.The petitioner’s argument in summary form was to this effect. He had at the time he filed the petition a grant ad colligenda bona in terms of section 67(1) of the Law of Succession Act (Chapter 160). That grant made him a personal representative of the estate of the deceased. According to article 29 of Table A, (which is part of the company’s articles as it was not expressly excluded) in the case of the death of a member who was a sole holder of a share(s) his personal representative shall be the only person recognised by the company as having any title to his interest in the share. And in the English case of Re Jerym Street Turkish Baths Ltd [1970] 3 All ER 57 it was held that personal representatives of a deceased member of a company must be regarded as members of the company for the purposes of section 210 of the Companies Act of 1948 . That provision is identical to section 211 of the Kenya Companies Act. The company’s argument as I understood it was this. The grant obtained by the petitioner was invalid because it did not indicate the purpose for which it had been issued and accordingly it did not confer on any rights on the petitioner. Furthermore, the same had expired before the petition was lodged. In any case, even if it was a valid limited grant of letters of administration ad colligenda bona it did not make the petitioner a shareholder of the company and accordingly he could not complain of being oppressed as a shareholder. The case of Re Jerym Street Turkish Baths Ltd was distinguished on that basis that the companies, articles in that case were different from the articles of the company herein. In particular it was pointed out that article

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20 therein provided that the legal representative of the deceased member shall be recognised by the company as having title to the deceased’s interest in the share. I now turn to a consideration of these rival arguments. The grant issued to the petitioner was a limited grant if letters of administration ad colligenda bona under section 67(1) of the Act. It was issued on 18 June 2002. It was expressed to be for a period of three months. The usual words expressing the purpose for which it was issued, that is to say “collecting and getting in and receiving the estate and doing such things as may be necessary for the preservation of the same until further representation be granted” were cancelled out. It is that cancellation which counsel for the company submits renders the grant invalid. Counsel for the petitioner on his part argued a grant ad colligenda bona is just that. It is a limited grant issued for collecting and getting in and receiving the estate. He did not think that the cancellation of the words in question, though a permissible amendment of the form prescribed for such a grant by rule 36(2) of the Probate and Administration Rules by virtue of rule 70 had the effect of rendering the grant meaningless. It ceased to be a grant ad colligenda bona for collecting and getting in the estate. Having lost that character it became a wholly meaningless and incurably defective instrument.

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Now although it was renewed at the time of the petition was filed and subsequently thereafter, the renewal could not render it valid. It was valid ab initio. In those premises, even if a limited grant ad colligenda bona made the petitioner the personal representative of the estate of the deceased. Paul Muigai, and gave him a basis for being recognised as being entitled to the interest of the deceased in the shares in question, the grant the petitioner obtained could do nothing of the sort as it was a defective one. That conclusion completely destroys the foundation of the petitioner’s claim to locus standi in this matter. Furthermore, even if the grant was a valid one, I am of the opinion that it would not have been sufficient to constitute the petitioner a member of the company within the meaning of section 211 of the Companies Act for the following reasons. First, a grant of letters of administration ad colligenda bona cannot in my opinion confer on the grantee the status of a personal representative of the deceased. Under section 2 of the Succession Act, a personal representative is defined as a “the executor or administrator of a deceased person. And administrator is in turn defined to mean a person to whom a grant of letters of administration has been made under the Act. To my mind, the grant of letters referred to can only be a full grant for a limited grant ad colligenda bona cannot and does not confer on the grantee the right to administer the estate of the deceased and accordingly such a grantee cannot be the administrator of the deceased within the meaning of the law. Secondly, in my opinion, even the holder of a full grant of letters of administration, who is truly the personal representative of a deceased shareholder is not and cannot be treated as a member of the company . article 29 of the Table “A” makes him the person entitled to be recognised as having any title to the deceased’s interest in the shares. Such a person is not a member of the company? Section 211 does not define the expression . However Section 28 of the Act – to which neither counsel drew my attention - provide:

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‘28(1) The subscribers to the memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration shall be entered as members in its register of members. (2) Every other person who agrees to become a member of a company, and whose name is entered in its register of members, shall be a member of the company.’

From the above definition, it is apparent that a member of the company is such a person as has been entered in the company’s register of members. Accordingly a personal representative of a deceased member cannot ipso facto be regarded as a member of the company. He must first get his name into the register. Taking the view of the matter, I must respectfully decline to follow the dicta in the English case of Re Jerym Street Turkish Baths Limited (supra) to the effect that even if a personal representative of a deceased member is not registered as member of the company, he must be regarded as a member of the company for the purposes of section 210 of the English Companies Act of 1948 – a dicta on which counsel for the petitioner placed considered reliance . In taking a position, I am a little fortified – if fortification be necessary – by the fact that the Australian case of Re Meyer Douglas Pty Ltd (1965) VR 638, a decision contrary to the one taken by the English court was taken and that Professor Gower seems to think that the Australian decision is more convincing. *** (c)

De Bonis Non

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Grants limited de bonis non issue for the purpose of completing administration of estates in situations where the previous administrator has failed to complete administration for whatever reason.They are governed by the Fifth Schedule to the Law of Succession Act. Cases numbers 182, 183 and 185 illustrate the circumstances under which the court issues a grant de bonis non. The decision of the court in case number 184 does not advert to a grant limited de bonis non, but the circumstances suggest that the proper course of action in that matter should have been an appropriate application by the interested party for a grant de bonis non instead of the prayer made in the matter for substitution.

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Maamun bin Rashid bin Salim El-Rumhy v Haider Mohamed bin Rashid El-Basamy [1963] 1 EA 438 (Pelly Murphy J) (Any of the residuary legatees has a right to a grant de bonis non upon the death of the executor)

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CASE NO. 182

The executor of a will died before completing administration. A petition for grant of letters of administration de bonis non was made by one of the heirs, and notices of citations were issued to eight persons interested in the estate, but who had been disclosed in the petition. It was held that the effect of the will was to make the heirs residuary legatees, and therefore any of them had a right to a grant of administration de bonis non after the death of the executor. The grant de bonis non was made to the petitioning heir.

PELLY MURPHY J: I think that, where a person claiming to be an heir (or the heir of an heir) of a deceased person applies for a grant of administration¸ citations should not be issued to other heirs (whose existence is disclosed in the petition) having an equal right as a matter of course but only when for some special reason the court sees it fit to make such an order. The object of a non-contentious citation is to call upon a person who has a superior right to a grant to take the grant. Thus any person who has an interest in having an estate administered may apply for a grant of representation, but, if there are persons who have a superior right to obtain the grant, he must cite such persons calling upon them to apply for the grant. If the persons cited fail to apply for a grant or renounce their right to it, the grant may, subject to the usual conditions, be given to the citor. It follows that, save in cases where the court thinks it necessary to do so, non-contentious citations should not be issued unless the petition discloses that the person seeking the grant has a lesser right than some other person who has failed to take the necessary steps to obtain it. In granting letters of administration de bonis non, the court should be guided by the same rules as apply to original grants. In this case the deceased (by the first paragraph of her will) made certain specific bequests to charity and directed that her debts should be paid. By the second paragraph, she appointed her son to be her executor and directed him to distribute her estate among her heirs ‘inn a just manner.’ In my opinion the effect of that will (in so far as it relates to the matters in issue) was to make her heirs her residuary legatees. If I am right in so finding, any of her heirs had a right to a grant of administration de bonis non after the death of the executor. At the hearing counsel for the parties agreed that the facts as to the relationship of the petitioner and the caveator with the deceased are those set forth in the plaint; neither the petitioner nor the caveator is a ‘direct’ heir of the deceased but that each of them has an interest in her estate as an heir of an heir; and that none of the ‘direct’ heirs of the deceased are alive.

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All the residuary legatees being dead, it seems to me the representative of any one of them has... the same right to a grant of administration as had the legatee whom he represents. ... in other words, the heir of an heir is a representative and as such can apply for and may be granted administration with the will annexed. Here it is common ground that the petitioner is the heir of Rukia who was one of the heirs of the deceased. In addition, however, the petitioner is the administrator (under a grant of administration issued by this court) of the estate of Rukia and is therefore her legal personal representative. Although it is not necessary to do, I think it desirable to make it clear that the granting of letters of administration to the petitioner in no way hurts or prejudices the caveator. An administrator has to furnish adequate security to the court for the due administration of the estate and any person who is interested and who considers that the estate is not being properly administered can invoke the aid of the court to deal with any non-feasance or misfeasance of the administrator. It appears to me that the litigation in the instant case probably stemmed from the mistaken belief that, in granting administration to one of the persons entitled thereto, the court is pronouncing that that person has a superior right of inheritance to that of any other heir.That is, of course, a completely erroneous view. It does, however, seem to me that the practice of this court in issuing notices of citation as a matter of course has led to confusion and in this case has contributed to the mistaken belief which I think may have prompted the institution of these proceedings. In the Matter of the Estate of Hannah Njoroge Njuki (Deceased) Nairobi High Court succession cause number 453 of 1997 (Ang’awa J)

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(Where an administrator dies before completion of administration, the next course of action should be to apply to court for a grant of letters of administration de bonis non, which is limited to the completion of the administration) CASE NO. 183

A wife predeceased her husband, who took a grant of letters of administration over her estate. The husband died before he could complete administration of the estate. A son of the two deceased persons then sought the removal of the name of the deceased administrator and its substitution with that of the son. The court declined to grant the prayers sought, stating that upon the death of an administrator before completion of administration, the proper course of action would be to move the court for a grant of letters de bonis non in terms of paragraph 16 of the Fifth Schedule to the Law of Succession Act.

ANG’AWA J: I have been requested by the applicant to remove the name of the deceased administrator and substitute it with that of the third son. I have noted that what the applicant is really seeking for is not a substitution but a grant de bonis non.

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Where an administrator dies and his estate is not fully administered any of the beneficiaries entitled to the estate may file for letters de bonis none. They do this under paragraph 16 of the Fifth schedule as read with rule 12 (affidavit). That the said prayer should be made under P and A Form P and A 86 where the deceased died intestate form P and A 87 where the deceased died testate. In this application before me none of this has been complied with. I hereby strike out the application as being bad in form and unprocedural. See section 76(a) and rule 44(5) as read with rule 73. That the applicant is given leave to file an appropriate application for de bonis non under para 16 of the Fifth Schedule as read with rule 12 and filed under Form P and A 86 and P and A 19. In the Matter of the Estate of Mwangi Mugwe alias Elieza Ngware (Deceased) and In the Matter of the Estate of Mary Wairimu Ngware (Deceased) Nairobi High Court succession cause number 2018 of 2001 (Khamoni J) (The Law of Succession Act does not have provisions for the substitution of a deceased single administrator)

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CASE NO. 184

The court was faced with two applications brought under section 71 of the Law of Succession Act seeking the substitution of administrators who had died. It was held that that there was no provision in the Law of Succession Act for substitution of dead administrators. The proper procedure ought to be an application under section 76(e) of the Law of Succession Act, not section 71 which is on confirmation of grants, asking the court to revoke the grant because it has ‘become useless and inoperative through subsequent circumstances.’53

KHAMONI J: The operative word is ‘substitution.’ The Law of Succession Act has no provisions talking about substitution of a deceased single administrator. The applicant is using section 71 and rules 40 and 41, the provisions used in normal proceedings during the hearing summons for confirmation grant where the administrator has not died. That is not the position in this summons mainly for substitution. Those provisions, relevant for normal confirmation of grant where the administrator has not died, are not therefore available to an applicant for substitution of a deceased single administrator even if the applicant wrongly chips in a prayer for confirmation of grant as it has been done through the second prayer in this summons before me.

53

It would appear that the proper procedure in the circumstance of an administrator dying before the completion of administration would be to apply for administration limited de bonis non in terms of paragraph 20 of the Fifth Schedule to the Law of Succession Act.

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I do not think rules 49 and 73 of the Probate and Administration Rules come in to assist the applicant beyond enabling the applicant bring this application by way of summons. In the circumstances therefore, it is my considered view that the proper provisions of the law to apply is section 76(e) of the Law of Succession Act and rule 44 of the Probate and Administration Rules whereby the applicant would apply for revocation or annulment of a grant on the ground ‘that the grant has become useless and inoperative through subsequent circumstances.’54 The applicant would proceed to put up a prayer in the same application that a new grant be made to him and could as well add a further prayer, if need be, for confirmation of the new grant. The application, should, of course, be supported by consent from adult beneficiaries in the estate of the first deceased person, the second deceased person being the deceased administrator. In the Matter of the Estate of Peris Wanjiku Nduati (Deceased) Nairobi High Court succession cause number 2349 of 2001 (Ang’awa J) (Where an administrator dies before completion of administration, the right course of action should be to seek his replacement through an application for grant of letters of administration de bonis non)

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CASE NO. 185

The administratrix of the estate of her deceased husband passed away. Her son sought letters of administration ad litem in the cause expressed to be for the purpose administering the estate of his late mother.The court held that the procedure adopted was not right, since the matter was filed in the cause of the applicant’s father rather than in the mother’s cause. The court concluded that from the papers filed the applicant desired to replace his mother as administrator of his father’s estate with a view to complete the administration of the estate, and that being so the correct approach ought to be an application for a grant de bonis non instead of a grant ad litem.

ANG’AWA J: Peter Nduati Karanja a male adult aged 61 years old as at 9 July 1999 died at the Kenyatta National Hospital presumably after a long illness. He was survived by his widow Peris Wanjiku Nduati and five children who are all adults. Letters of administration intestate was duly issued to the widow Peris Wanjiku Nduati on 15 January 2002 (Aluoch J). On the 14 May 2002 the said widow and administratrix to this cause passed away. One of the sons Samson Karanja Nduati through the advocate sought to confirm the grant by application dated 19 September 2002 before Khamoni J.This application was correctly dismissed as the said son Samson Karanja Nduati had no locus to file the said application. 54

The problem in the matter would have been properly fixed by an application for a grant of administration de bonis non, as this was a case where an administrator died before completion of administration and what was needed was a grant to complete administration.

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The advocates then filed the application dated the 7 February 2003 praying that Samson Karanja Nduati the son be issued with letters of administration ad litem to the estate of Peris Wanjiku Nduati (his late mother). I don’t think this is possible as the cause is not for Peris Wanjiku Nduati (the late mother and administratrix). The cause is for Peter Nduati Karanja (the late father) from the affidavit I see that the intention is to substitute the late mother with the son Samson Karanja Nduati in order that the cause and estate may have an administrator. In order to do this, the applicant is required to file an application for de bonis non not an application for letters of administration ad litem (which is a limited grant). ***

10.7 FOREIGN GRANTS It naturally happens that foreigners own property in Kenya, and conversely Kenyan citizens own property in other jurisdictions. There are provisions in the law dealing with such scenarios. The relevant provisions of the Law of Succession Act on these issues are sections 4 and 77. These provisions provide: ‘4(1) Except as otherwise expressly provided in this Act or by any other written law: (a)

Succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, whatever the domicile of that person at the time of his death;

(b)

Succession to the movable property of a deceased person shall be regulated by the law of the country of the domicile of that person at the time of his death.

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(2) A person who immediately before his death was ordinarily resident in Kenya shall, in the absence of proof of domicile elsewhere, be presumed to have been domiciled in Kenya at the date of death. 77(1) Where a court or other authority, having jurisdiction in matters of probate or administration in any Commonwealth country or in any other foreign country designated by the Minister by notice in the Gazette has, either before or after the commencement of this Act, granted probate or letters of administration, or an equivalent thereof, in respect of the estate of a deceased person, that grant may, on being produced to, and a copy thereof deposited, with the High Court, be sealed with the seal of that court, and thereupon shall be of the same force and effect, and have the same operation in Kenya, as if granted and confirmed by that court. (2) Before sealing a grant under subsection (1) the High Court: (a)

...

(b)

may require such evidence as it thinks fit concerning the domicile of the deceased person

(c)

may, on the application of any creditor of the estate, require that adequate security be given for the payment of debts due from the estate to creditors residing in Kenya.’

Cases numbers 18, 186, 187, 188 and 189 deal with such matters.

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In the Goods of Tamplin (1894) P 39 (Gorell Barnes J)

CASE NO. 186

(The court cannot grant probate for administration of immovable probate situated in a foreign country) The testator, with a United Kingdom domicile, left a will properly executed in accordance with English law disposing of real and immovable property in Russia. The probate court declined to grant representation on the document referring to real and immovable property situated outside the jurisdiction of the court.

GORELL BARNES J: If the last will of 3 June 1890, which deals only with real and immovable property in Russia, were alone put forward for probate in this court, it is tolerably clear that probate of it would not be allowed. I asked counsel who argued this case, whether they could cite to me any case in which a will dealing only with real and immovable property in a foreign country had been admitted to probate in this court. Counsel were unable to cite any such case; and, so far as I have been able to ascertain, there is no case in which that has been done ; and it would seem, indeed, that this must be so, looking to the principles by which this court is governed in dealing with the wills of persons who die possessed of property in other countries...The ground upon which the principle is founded is this: With regard to real and immovable property in a foreign country, that must follow the law of that foreign country, and cannot come in as forming part of the personal estate of the deceased, and probate of a will of that property cannot be granted. National Bank of India Ltd v The Administrator General of Zanzibar [1924-26] 10 KLR Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

(Pickering J) (A suit filed in Kenya against the administrator of an estate issued by a foreign court is incompetent) CASE NO. 187

The deceased had property in Zanzibar, and an administrator was appointed in respect of the Zanzibar property. A suit was commenced by a creditor in a Kenyan court against the administrator appointed by the Zanzibar court. It was held that the suit was not competent as the property in question was outside the jurisdiction of the court and the administrator had been appointed by a foreign court. The court stated the position that no suit can be brought against an administrator except in the courts of the country from which he derives authority.

PICKERING J: In order to enable the receivers to deal with such portion of the estate as was situate in Zanzibar, they instituted an administration suit in the Court of His

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Britannic Majesty at Zanzibar. That suit is still pending and the Court has appointed the Administrator General of Zanzibar, the present named defendant to administer the properties of the deceased gentleman. The National Bank of India thereupon brought this suit against the Administrator General asking for an account and a foreclosure order in respect of the hereditaments situate in Zanzibar. Service of the plaint was effected by registered letter post, and the defendant has appeared in this court protesting that he is not subject to its jurisdiction. In my opinion the objection is well-founded and must prevail. The rule of procedure upon which the defendant relies is clearly stated in William’s Law of Executors and Administrators. The learned author says: ‘No suit can be brought against any executor or administrator in his official capacity, in the court of any country but that from which he derives his authority to act by virtue of the Probate or Letters of Administration there granted to him.’This passage has been cited in various judgements as an accurate statement of the law. The rule is thus stated by Mr Dicey in his invaluable treatise; ‘A foreign personal representative is not, under any liability in England and cannot as foreign personal representative be sued in England.’ Here the defendant was appointed by a foreign court and the property sought to be affected is outside the jurisdiction of this court. The defendant has done no act within this Colony which would give a creditor the right to sue him here. Keshavlal Bhoja v Tejalal Bhoja [1967] EA 217 (Fuad J)

CASE NO. 188

(A suit cannot be brought against an administrator in his official capacity, except in the courts of the country from which he derives authority to act)

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A Ugandan resident sued another in a Ugandan court as the administrator of their deceased father’s estate, where the grant of representation had been obtained from a Kenyan court. It was held that the suit was not maintainable in Uganda. FUAD J: This case is almost on all fours with a Kenyan case that my searches have unearthed. I respectively agree with the decision of Pickering, J, in National Bank of India Ltd v The Administrator-General of Zanzibar [1925] 10 KLR 88), where he held that no suit can be brought against an administrator in his official capacity, except in the courts of the country from which he derives his authority to act. ..

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In the Matter of the Estate of Gerald Felix Nyawira Otiso (deceased) Nairobi High Court civil case number 2715 of 1996 (Ang’awa J) CASE NO. 189

(An envoy who is posted to a station abroad does not acquire the domicile of the country of posting. A grant to his estate should be obtained from his country of origin, and if need be, be resealed in the courts of the country of posting) The facts are set out in the ruling.

ANG’AWA J: I requested the advocate for the applicant to submit to me on whether he is entitled to apply for a grant and not a resealing of the grant in Kenya. Mr Nyamu has kindly done so. From his submission both written and oral I come to the following conclusion. Where a Kenyan has died abroad, his estate is issued with a death certificate of ‘a Kenyan who has died abroad.’ The key point in such probate is that of domicile. The Kenyan must show that the deceased was domiciled in Kenya as that will be the law applicable to the probate matter. In this instance case the deceased was a civil servant attached to the Ministry of Foreign Affairs. He was seconded to work in South Africa where he met his fateful death in a car accident. Where should he have applied for his grant? The Indian Succession Act section 12 that was relied on by the advocates states:

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‘A person appointed by the government of one country to be its ambassador, servant or other representative in another country does not acquire a domicile in that country by reason only of residing there in pursuance of his appointment nor does any other person acquire such domicile by reason only of residing with such first mentioned person as part of his family or as a servant.’

The deceased’s domicile was not in South Africa. The intention was not to have a domicile there but to work for his government. His intention was not to abandon his domicile in Kenya. The deceased resided in South Africa but his intention was not to leave his Kenya domicile. I hereby accept the said arguments. I would hereby reverse my earlier orders and duly confirm the grant issued on 19 March 1997. I believe the applicant would now apply for resealing, if necessary, in South Africa

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CHAPTER 11 PROBATE JURISDICTION 11.1 INTRODUCTION Administration of estates is supervised by the courts. The design is to protect the interests of all persons who have a claim. The administrators stand in a fiduciary position to the property and the persons entitled from the estate.They have to account for their activities. The Law of Succession Act defines the jurisdiction of the various courts in Kenya with respect to succession matters, setting out their original and appellate jurisdiction,

11.2 ORIGINAL JURISDICTION (a)

High Court

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The High Court is the court for the purpose of the operationalization of the Law of Succession Act. It enjoys wide powers as set out in sections 47, 48 and 49 of the Law of Succession Act. These provisions provide as follows: ’47.

The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:

48.

... provided that for the purpose of this section in any place where both the High Court and a Resident Magistrate’s Court are available, the High Court shall have exclusive jurisdiction to make all grants of representation and determine all disputes under this Act...

49.

...Provided that: (i)

the magistrate may, with the consent or by the direction of the High Court, transfer the administration of an estate to any other Resident Magistrate where it appears that the greater part of the estate is situated within the area of that other magistrate or that there is other good reason for the transfer;

(ii)

If the deceased had his last known place of residence outside Kenya, the High Court shall determine which magistrate shall have jurisdiction under this section...

Cases numbers 190, 191 and 192 demonstrate that the High Court has wide powers under section 47 of the Act to entertain to any dispute and pronounce such decrees and orders as may be expedient.

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In the Matter of the Estate of Mohamed Saleh Said Sherman also known as Mohamed Swaleh Sherman – Deceased Mombasa High Court succession cause number 145 of 1998 (Hayanga J) CASE NO. 190

(Under section 47 of the Law of Succession Act the court can make restraining orders with a view of protecting the estate from depletion) A beneficiary under the will of the deceased sought injunction orders to restrain the executors or administrators of the estate from performing any acts with relation to the property of the deceased. The court held that for the purpose of protecting the estate from depletion, it had power under section 47 to make restraining orders.

HAYANGA J: I have followed the arguments of counsel on this matter but i think there is a serious allegation against the administrators of the estate and a challenge against the will and the grant of probate itself. I see that if the estate had to be depleted before the hearing of these allegations are adjudicated on their merits the injury to the applicant could be irreparable. I see that the most appropriate relief as at this point is a restraining order to keep the estate wholesome. The spirit of the Law of Succession Act Chapter 160 of the Laws of Kenya seems to me, first to give wide jurisdiction to this court in dealing with testamentary and estate administrative issues. Section 47 of the same Act provides that:

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‘The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.’

The Act provides for protective powers to be exercised against wrongful disposal, intermeddling with any free property of the deceased except in accordance with provisions of the Act. A challenge grant of probate cannot be used to dispose of property until it is confirmed. The applicant claims that the purported disposal of assets is illegal as the grant of probate may not have been confirmed. If that be so, a decision on that ought to be made by court, thus court would have vacated its jurisdiction to decide on the dispute before confirming the grant. That would be abdication of jurisdiction under sections 68 and 71 of the Succession Act. The most fair order as I see it is to the estate and this the court can do under its inherent jurisdiction and or in compliance with open jurisdiction under section 47 of Chapter 160. In addition, I also think that this court is not circumscribed by provisions of order 39 of the Civil Procedure Rules in granting injunction here but can also do so under its inherent jurisdiction.

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Estate of Mohamed Saleh Said Sherman – Deceased Mombasa High Court succession cause number 145 of 1998 (Hayanga J)

CASE NO. 191

(The court has power under section 47 of the Law of Succession Act to order advancement to the heirs and beneficiaries) A widow sought an advancement be made to her from the estate of the deceased. The application was opposed on, among other grounds, that under Islamic law there was no room for such advancement. The court exercised its ‘inherent jurisdictional power’ under section 47 of the Law of Succession Act to order a monthly payment to the widow and her daughter.

Hayanga J: The arguments were heated but two things are common to both sides from that the applicant is a widow with two daughters, secondly that she is a beneficiary of her husband’s estate which she estimates to be 1 billion KShs worth. The value of the estate from the point of view of Mr Asige’s clients the administrator is not stated but the applicant enlisted about 22 companies where the deceased had shares and directorships of the same by the widow in her affidavit plus many real properties make 1 billion KShs More probable than the one the administrators say. They say the estate is worth 1/6 share in plot 65/BX 1/3 share of Plot 16 Block XXI, 1/6 share of Plot number 103/IX and 6 shares in Anglo Swiss Bakery Ltd. Secondly it is common to both sides that the widow is beneficiary and will ultimately get something.

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In these circumstances I do not see why advancement cannot be made to give her some money for her upkeep. She has asked for KShs 40 000 per month for each daughter and herself all amounting to KShs 120 000. I think I have inherent jurisdictional power under section 47 of Chapter 160 and order a monthly advancement of KShs 35 000 for each daughter and KShs 40 000 per month for the widow making a total of 110 000 per month. I also direct that the first payment be with immediate effect but in any case not later than 3 days from today’s date and thereafter on 25 day of succeeding months until the determination of this case or until any subsequent order.

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In the Matter of the Estate of Henry Ng’ang’a (Deceased) Nairobi High Court succession cause number 1330 of 1999 (Koome J)

CASE NO. 192

(The court has power under section 47 of the Law of Succession Act to order that an agent appointed to collect rents from the tenants occupying property belonging to the estate to render accounts of their collection of the rents) An application was made under section 47 of the Law of Succession Act seeking to have estate agents appointed by the court furnish accounts for the rents they had collected from the tenants occupying a certain asset. The court ordered the estate agent to compile and provide an account of the rents collected. The court further made orders regarding payment of an allowance for the maintenance of the applicant from the rents collected.

KOOME J: M/s Tysons Company Ltd were appointed by the court to collect rent over LR number 4953/4, LR number 4953/14 Thika and LR number 209/3532/7 Nairobi from 29 September 1999. They have a duty to render an account. All the parties are in agreement that they should be ordered to render the account.

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As regards the distribution of the estates all parties are also in agreement that distribution has hit a snag principally because one of the co-administrators Jane Ng’ang’a left the deceased matrimonial home and went back to her original husband. She should therefore be removed as a co-administrator and beneficiary of the estate. The estate was referred to the local chief for arbitration and the award by the elders was confirmed by this court on 6 February 2001. The grant was confirmed but due to reasons that the shares of the beneficiaries require to be adjusted with the departure of the co-administrator and the fact that the confirmed grant needed to be rectified. I am persuaded that the distribution of the estate needs to be adjusted. Since the elders under the chairmanship of the Chief Muruka had arbitrated, I see no harm in referring the matter to the same chief for arbitration on the issue of distribution. The other issue is the payment of KShs 50 000 to the applicant being her maintenance per month. The applicant is a widow of the deceased. Naturally she has aged and due to ill health her capacity to provide for her own maintenance is diminished. The other parties’ rejoinder to this prayer is that they too should be given monthly allowance. They are children of the deceased and they too should be paid. The prayer for the maintenance of the applicant is reasonable but I find KShs 50 000 on the higher side. In the interest of justice and considering that any sum drawn by the applicant as maintenance shall be taken into account during the distribution of the estate. I will grant the order that she be paid KShs 20 000 per month for her maintenance. ***

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Resident Magistrate’s Court

Although the High Court is the court for the purposes of the Law of Succession Act, the resident magistrate’s court does also exercise jurisdiction over succession matters. The jurisdiction the resident magistrates of is limited: (a) to those areas in respect of which Part V of the Act does not apply by virtue of section 32 of the Act, (b) it only represents the High Court, (c) it deals with an estate whose gross value does not exceed KShs 100, 000-00, and (d) it cannot entertain applications to revoke a grant, even where the same is issued by it. The jurisdiction of this court is regulated by sections 44(1), 47, 48 and 49 of the Law of Succession Act. These provisions state as follows: ‘44(1) The provisions of this Part shall not, in cases of intestacy, apply to those types of property mentioned in section 32... 47.

... Provided that the High Court may for the purpose of this section be represented by resident magistrates appointed by the Chief Justice.

48(1) Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a Resident Magistrate shall have jurisdiction to entertain any application other than an application under section 76 and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed one hundred thousand shillings... 49.

The Resident Magistrate within whose area a deceased person had his last known place of residence shall, if the gross value of the estate of the deceased does not exceed one hundred thousand shillings, have in respect of that estate the jurisdiction conferred by section 48 Provided that:

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(i)

Every Resident Magistrate shall have jurisdiction, in cases of apparent urgency, to make a temporary grant of representation limited to collection of assets situated within his area and payments of debts, regardless of the last known place of residence of the deceased.’

Cases numbers 193, 194 and 195 are on the jurisdiction of magistrates over succession matters.

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In the Matter of the Estate of Karanja Gikonyo Mwaniki – Deceased Nakuru High Court misc. 245 of 1998 (Ondeyo J) CASE NO. 193

(A grant made by a Resident Magistrate over an estate whose value exceeds KShs 100 000-00 is a nullity) A party sought revocation of grant on grounds of fraud. The court revoked the grant on its motion on a different ground – that the grant was null and void as it was made by a Resident Magistrate who exceeded his pecuniary jurisdiction. It was granted over an estate whose value was KShs 240 000-00

ONDEYO J: The jurisdiction to hear and determine matters under the Act, with regard to magistrates, is conferred by section 48 which provides in part that: ‘Section 48 ...subject to the provisions of section 49, a Resident Magistrate shall have jurisdiction to entertain any application other than an application under section 76 and to determine any dispute under this Act...in respect of any estate the gross value of which does not exceed one hundred thousand shillings...’

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The jurisdiction of a Resident Magistrate hearing succession matters under the Act is limited to an estate whose value does not exceed KShs 100 000-00. The annexed judgement ‘RNK 2’ at page two thereof shows that the land which the respondent purchased had appreciated in value and in 1994, it was valued at KShs 240 00000, which exceeds the jurisdiction of a Resident Magistrate (see section 48 supra). The learned trial magistrate had no jurisdiction to hear and determine Nyahururu Succession Cause number 115, of 1997 since, the land, subject matter of the suit, and which comprised the estate, exceeded KShs 100 000-00 and respondent should have filed the petition for grant of letters of administration intestate, in the High Court. Consequently, the orders issued by the learned trial magistrate were a nullity. Section 16 empowers the High Court, on application by any interested party or of its own motion [Emphasis Mine], to revoke or annul any grant of representation whether or not confirmed. Having found that the value of the land, subject matter of the estate of the applicant’s husband, and which estate was the subject matter of Nyahururu Succession Cause number 115 of 1997, exceeded the jurisdiction of the Resident Magistrate, I invoke the powers conferred upon the court by section 76 of the Law of Succession Act, and of my own motion, order that...the grant issued to the respondent herein on 12 November 1998 be and is hereby annulled.

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In the Matter of the Estate of Kuria Wairagu (Deceased) Nairobi High Court succession cause number 905 of 2002 (Ang’awa J)

CASE NO. 194

(A Resident Magistrate gazetted under section 47 of the Law of Succession Act has the same pecuniary jurisdiction as the High Court, and the limitation to KShs 100 000-00 does not apply to such Resident Magistrates, but resident magistrates who are not gazetted) A grant of letters was made by a Resident Magistrate, and revocation of grant was sought on the ground, among others, that the estate was worth KShs 1 200 000-00, and therefore way out of the jurisdiction of a resident magistrate. The court declined to grant the orders, and held that a resident magistrate gazetted under section 47 of the Law of Succession Act had the same pecuniary jurisdiction as the High Court, and that the limitation of KShs 100 000-00 applied to those resident magistrates who were not gazetted under section 47.

ANG’AWA J: I would nonetheless wish to state that the applicant questions the jurisdiction of the trial magistrate. That she has power only to administer estates up to KShs 100 000 and thereafter all estates must go to the High Court. I would not agree with this position.

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Every magistrate who deals with succession matters must be duly gazetted after being appointed by the Honourable Chief Justice for a particular area. Every time a magistrate moves, a new Kenya gazette notice must be given. Such a magistrate is representative of the High Court and has therefore the same jurisdiction as the High Court on condition that there is no High Court in that station. See section 47 of the Act. Under the rules, before the Act was enacted, the magistrate and the District Commissioner would be given powers to deal with an estate up to KShs 100 000. These powers were retained in the Act. Thus, where a magistrate is not gazetted and is in an area where there are no other magistrate gazetted or judge in a High Court, estates up to KShs 100 000 may be handled by such a magistrate of the rank of a Resident Magistrate.55 Where there is no magistrate, the District Commissioner acts as a Public Trustee and can settle an estate without going to court up to the limited of KShs 100 000. See the Public Trustee Act.

55

This is misleading. There is no such provision in the Law of Succession Act. No magistrate can exercise jurisdiction over succession causes, which fall under the Law of Succession Act, unless such magistrate is duly appointed by the Chief Justice under section 47 to represent the High Court. There are no provisions in the Public Trustee Act which confer such jurisdiction on magistrates and District Commissioners regarding issuance of grants of representation and administration of estates.

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Paul Mburu Njoroge v Joseph Waweru Gitumbi [2008] eKLR (Bosire, Githinji and Aluoch JJA) (The resident magistrate’s court has no jurisdiction by virtue of section 48 of the Law of Succession Act to hear and dispose of applications seeking revocation of grants of representation) CASE NO. 195

The appellant had applied to the High Court for revocation of a grant. The court referred the matter to the resident magistrate’s court for the hearing and disposal of the revocation application. On appeal from a subsequent order from the magistrate it was held that by virtue of section 48 of the Law of Succession Act the subordinate courts have no jurisdiction to hear and dispose of revocation of grant applications.

BOSIRE, GITHINJI and ALUOCH JJA: On 13 July 1989, Rauf J became seized of the application. The record of appeal shows that without hearing the parties he recorded the following order: ‘ORDER I note that the original grant was obtained and confirmed through Resident Magistrate’s court at Kiambu under rule 4(1) of the Law of Succession Act Rules. I review this application to be dealt with by a Resident Magistrate at Kiambu. Costs in the cause.’

This was the beginning of problems for the appellant. The application for revocation of grant was made pursuant to the provisions of section 76 of the Law of Succession Act, which provides, as material, that:

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‘76.

A grant of represe ntation whether or not confirmed, may at any time be revoked or annulled if the court decides...’

Section 47 of the same Act confers jurisdiction on the High Court to entertain any application and to determine any dispute under the Act and to pronounce such decrees and make such orders therein as may be expedient. That section has a proviso to the effect that the High Court may in certain instances be represented by ‘Resident Magistrate’s appointed by the Chief Justice.’ The Resident Magistrate who issued the grant to the respondent must have acted under this proviso. But section 48 of the Law of Succession Act limits the jurisdiction of magistrates’ courts. Rauf J was therefore in error to have referred the application for revocation of grant to the Resident Magistrate’s Court. Following the order by Rauf J the appellant went before the Resident Magistrate’s Court at Kiambu for orders on his application. The court treated the appellant’s application as an objection to the grant and for reasons which we will not go into, dismissed it on 18 April 1989 that provoked civil appeal number 102 of 1989.That appeal was heard by Mbito J who eventually ruled that, the magistrate had no jurisdiction to entertain the application citing section 48, aforesaid as the basis for his decision. In the cause of his judgement he made the following statement which we respectively agree with:

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‘It is trite law that jurisdiction cannot be assumed or conferred by consent of the parties. I would also add, it cannot be conferred by a superior court. The jurisdiction has to be in accordance with the applicable law and in this case the Law of Succession Act.’

It is noteworthy that the appellant is the one who requested Rauf J to refer his matter to the Resident Magistrate’s Court at Kiambu. But as rightly pointed out by Mbito J, jurisdiction has to be conferred by statute. In the event the learned judge set aside the order referring the matter to the subordinate court with a direction that all records concerning the application for revocation of grant be forwarded to the High Court for it in turn, to deal with that application. He also vacated the magistrate’s order dismissing the appellant’s application for revocation of grant.`. *** (c)

Arbitration

The Law of Succession Act does not provide for reference of succession disputes to arbitration. The courts, however, have held that there is power under section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules for reference by the court of succession disputes to arbitration by the provincial administration. Cases numbers 197 and 198 show situations where the Court of Appeal holds the view that such disputes can be referred to arbitration, while case number 196 is one where the court takes the position that referring matters to arbitration by the provincial administration amounts to abdication of responsibility and jurisdiction by the court. Case number 208 is the decision where the High Court, in exercise of its inherent powers, referred a dispute to elders. Wairimu Gathute v Theuri Wambugu and another Nyeri Court of Appeal civil appeal number 33 of 1991

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(Gicheru, Kwach and Muli JJA) (Referring a confirmation application to arbitrators amounts to abdication by the court of its statutory responsibility stated in section 71(4) of the Law of Succession Act) CASE NO. 196

A confirmation application was apparently referred by the High `Court to arbitration by a panel of elders, and the award reached was adopted as the decision of the court. On appeal, the Court of Appeal held that the matter ought not to have been referred to elders since the express provisions of section 71(2) enjoin the court to hear and determine the application for confirmation, and to satisfy itself as to the respective identities and shares of the parties beneficially entitled. In the court’s opinion, the court abdicated its statutory responsibility by delegating it to the arbitrators.

GICHERU, KWACH and MULI JJA: Section 71(2) of the Law of Succession Act sets out what the court to which an application for confirmation is made or to which any dispute in respect thereof is referred is supposed to do. There is a proviso to the subsection which states:

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‘provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.’

The Deputy Registrar was enjoined by express provisions of the law to hear and determine the application for confirmation of the grant as well as to satisfy himself as to the respective identities and shares of all persons beneficially entitled. In purporting to delegate this duty to the arbitrators, he abdicated his statutory responsibility. For these reasons, we allow this appeal and set aside the judgement and decree of Tunoi, J (as he then was) and in lieu thereof make an order quashing the award and remit the application for confirmation of the grant made by the appellant to the High Court to be heard and determined by the judge as required by sections 48 and 71 of the Law of Succession Act and the relevant provisions of the Probate and Administration Rules. Thumbi Weru and others v John Wachira Mwaniki Nyeri Court of Appeal civil appeal number 191 of 1998 (Kwach, Akiwumi and Shah JJA) (Where a succession dispute is referred to arbitration, the decision on arbitration should limit itself to the principal issues in the pleadings)

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CASE NO. 197

Objection proceedings relating to who was entitled to the grant was referred, by consent of the parties, by the High Court to arbitration by elders. The decision of the elders went beyond what had been applied for in the petition and cross-petition, as it considered such issues as determination of heirs and the distribution of the estate. The High Court adopted the said decision and made it a judgement of the court. On appeal, the Court of Appeal found that the elders overstepped their mandate, as the only dispute at that stage related to determining who should be given the grant. The Court of Appeal set aside the arbitration award.

KWACH, AKIWUMI and SHAH JJA: On 9 February 1993, when the petition and crosspetition came before Tunoi, J (as he then was), it was ordered by consent after the respondent and appellants had so agreed, that: ‘...all matters in dispute regarding the estate of the deceased (Weru Gatere) including the determination of heirs and the distribution of property are referred (to) arbitration under the chairmanship of the DO Mathira who will assisted by four (4) elders.’

In this regard, it is worth quoting the relevant provisions of Order 45, rule 1 which is as follows: ‘where in any suit all the parties interested who are not under disability agree that any matter in difference between them in such suit shall be referred to arbitration, they may, at any time before judgement is pronounced, apply to the court for an order of reference.’

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What is immediately apparent about this order, is that what was to be determined in the arbitration went beyond what had been applied for in the petition and crosspetition. as it happened, and because of this confusion, the arbitration award as will be seen, did not only fail to consider and determine the principal issues raised in the pleading referred to, namely, whether the respondent or the appellants were deserving of the grant of letters of administration of the deceased’s estate, but rather other extraneous matters including the distribution of the deceased’s estate. For this reason alone the arbitration award should have been set aside. Macharia v Wanjohi and another [2004] 1 EA 111 (Omolo JA, Onyango Otieno and Ringera AgJJA) (The court has power to refer a succession cause to arbitration by elders on a point in dispute)

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CASE NO. 198

A dispute on who was entitled to the estate of the deceased was referred by consent to a panel of elders. The panel made a determination which was recorded as an order of the court. One of the parties complained that the court had abdicated its jurisdiction to the elders and that the award had been filed out of time, among others. The Court of Appeal upheld the award, and held that the matter was properly referred to the elders and was properly made a decision of the court.

OMOLO JA, ONYANGO-OTIENO and RINGERA AJJA: In this case, it is clear from the record that on 12 June 1997 all parties appeared, before Osiemo J and an order (extract of which has been reproduced above) was entered referring the dispute to the arbitrator and the same District Officer would be assisted by four elders, two to be nominated by either party. The issue that the parties wanted determined was who among the parties, Joseph Mwangi Macharia and Agatha Wangechi Gachibo on the one hand and Adriano Mugo Wanjohi on the other hand was entitled to the estate of the deceased Maitu Karimi and arising from the issue, whether the letters of administration which had earlier been made to the first respondent should or should not be revoked. It was also agreed by all the parties that the award would be filed within 90 days. Thus the requirements of Order XLV, rules 1 and 2were satisfied and the reference was by consent of all parties including, Adriano Mugo Wanjohi in whose favour the grant sought had been made. In our view, there was no need at that time to first revoke the grant and then refer the question of distribution to the arbitration as the application that was before the court was for revocation of the grant and that would in the end lead to fresh distribution. If the parties identified the matter in difference between them that necessitated the application for revocation to be who was entitled to the estate of the deceased Maitu Karimi and decided by consent to refer the same to arbitration, we cannot fault the superior court for accepting to refer the same to arbitration as was done here. ***

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11.3 APPELLATE JURISDICTION The Law of Succession Act confers appellate jurisdiction on the High Court and Court of Appeal with respect to certain matters. The provisions of the Act covering appeals are set out in section 50. Section 50 provides as follows: ‘50(1) An appeal shall lie to the High Court in respect of any order or decree made by a resident magistrate in respect of any estate and the decision of the High Court thereon shall be final. (2) An appeal shall lie to the High Court in respect of any order or decree made by a Kadhi’s Court in respect of the estate of a deceased Muslim and, with the prior leave thereof in respect of any point of Muslim law, to the Court of Appeal.

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From the above provisions it is clear that the Law of Succession Act, except for matters originating from the Kadhi’s Court, does not provide for an appeal from an order or decree of the High Court, whether in its original or appellate jurisdiction, to the Court of Appeal. This implies that the decision of the High Court on any matter in a succession dispute except on an appeal from the Kadhi’s Court is final. The courts have taken contradictory positions on whether a decision of the High Court on a succession cause can be appealed against at the Court of Appeal. The High Court in Cases numbers 200, 201, 203 and 204 takes the position that there is no provision in the Law of Succession Act allowing an appeal to the Court of Appeal from the decision of the High Court on an order or decree in exercise of its original jurisdiction or its appellate jurisdiction over matters originating from the magistrate’s courts, consequently the High Court holds that it has no jurisdiction to grant leave to appeal. The Court of Appeal in Cases numbers 199 and 205 asserts that it has jurisdiction to entertain such appeals notwithstanding the silence of the Law of Succession Act on the matter. The Court of Appeal relies on some provisions of the Civil Procedure Act, as read with section 47 of the Law of Succession Act. Case number 202 is a decision of the High Court, which is somewhat ambivalent, but which eventually bends to the authority of the Court of Appeal in Case number 199.

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Makhangu v Kibwana [1995-1998] EA 175 (Cockar CJ, Kwach and Shah JJA) (The Court of Appeal has jurisdiction to hear and determine appeals emanating from the High Court on succession matters)

CASE NO. 199

A party had sought to withdraw his appeal at the Court of Appeal upon the realisation that it was incompetent as it had not been obtained with leave of the court. The court struck out the appeal as it had been obtained without leave. The Court of Appeal pointed out that it had jurisdiction under section 47 of the Law of Succession Act to entertain appeals from orders and decrees of the High Court, although the Law of Succession Act does not expressly provide for such appeals. Section 47 empowers the High Court to pronounce decrees or orders, and any order or decree made under this provision was appealable under section 66 of the Civil Procedure Act either as of right if it fell within the ambit of section 75 of the Civil Procedure Act or by leave of court if it did not.

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COCKAR CJ, KWACH and SHAH JJA: It will be observed that section 50 of the Act has specifically provided for a right of appeal from any order or decree made by a Resident Magistrate to the High Court whose decision is final. There is no such specific grant of a right of appeal from the decision of the High Court to the Court of Appeal. However, section 47 of the Act which has given jurisdiction to the High Court to adjudicate on any matter under the Act reads as follows: ‘The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient provided.’ It is clear that the grant made to the respondent by the High Court was through proceedings initiated by way of a petition as provided in the rules of the Act. A final adjudication which has culminated in the making of the grant to the respondent was a decree of the court. The application to annul the grant was part of the same proceedings but its dismissal was not a decree but an order. The right to appeal to the Court of Appeal from any decree or order of the High Court granted under section 66 of the Civil Procedure Act (Chapter 21) – hereinafter referred to as ‘the Civil Procedure Act’) has in respect of orders as decrees been limited in certain ways by section 75 of the Civil Procedure Act . Section 75(1) (h) (Order 42 of the Civil Procedure Rules) has provided for appeal by way of right and also, where needed, with leave of court from any order made under the Civil Procedure Rules. In the Court of Appeal decision in Commissioner of Income Tax v Menon (19821988) 1 KAR at page 695 Hancox JA (as he then was) held the use of the word ‘decree’ in the relevant section of the Income Tax Act to mean that the wording in section 87(3) of the Income Tax Act which provide that an order of the High Court on appeal shall ‘have effect as a decree’ was conclusive and such an order was therefore

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appealable to the Court of Appeal as of right under section 66 of the Civil Procedure Act. We respectfully agree with the view entirely and in the same token accept that finding as an authority that the use of the word decree in section 47 of the Act has made the decision of the High Court appealable as a matter of right The position here, however, is that the appeal is from an order and not a decree. But in our view the use of the two words ‘decrees’ and ‘orders’ in section 47 of the Act is significant. Had a word such as ‘decision’ or ‘adjudication’ been used in place of these two distinct words then clearly the High Court decision or adjudication would have been non-appealable altogether. The effect of the use of the word ‘decree,’ as Hancox JA (as he then was) very correctly pointed out in the Income Tax decision (supra), was that the decision of the High Court was appealable as of right under section 66 of the Civil Procedure Act. But provisions of appeals by way of right in respect of orders in section 66 has been made subject to ‘where otherwise expressly provided in the Act’ (Civil Procedure Act). As we stated earlier, section 75 of the Civil Procedure Act has clearly defined the orders where an appeal lies by way of right. The order of dismissal made by the High Court in this matter does not fall under any of these. The term ‘order’ having been specifically used together with the term ‘decree’ is conclusive that an appeal from the order of dismissal lies not by way of right but with leave of court only. Mr Kimani as we stated earlier, did realise during his submission that his appeal was incompetent and he applied for the appeal to be withdrawn. An incompetent appeal cannot be withdrawn. It must be struck out In the Matter of the Estate of Mariko Marumbi Kiuru (Deceased) Nairobi High Court succession cause number 2011 of 1997

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(Ang’awa J)

CASE NO. 200

(The Law of Succession Act does not grant a right of appeal from the High Court to the Court of Appeal in succession causes, and there cannot be, therefore, a basis for the High Court to entertain applications for grant of leave to appeal or any application related to grant of leave) A widow of the deceased sought extension of time within which to seek leave to appeal against an order of the court in a succession cause. The court declined to grant leave, stating that the Law of Succession Act does not provide for an appeal from the High Court to the Court of Appeal in succession matters, consequently there was no basis upon which leave to appeal could be granted.

ANG’AWA J: Under the Law of Succession Act Chapter 160 section 50 is clear and provides that: ‘An appeal shall lie to the High Court in respect of any orders or decrees made by a Resident Magistrate in respect of any estate and the decision of the High Court shall be final.’

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In 1990 by Act 2/1990 an amendment was made to this section to cater for the Muslims in which: ‘an appeal shall lie to the High Court in respect of orders made by a Kadhi’s Court in respect of the estate of a deceased Muslim and with the prior leave thereof in respect of any point of Muslim law to the Court of Appeal.’

The final court of appeal is the High Court in both cases. The only exception is that on a point of law only the persons who are professing the Islamic faith may appeal to the Court of Appeal. Not anyone else. The Act also provides that a person under rule 63 P and A may apply for a review of the courts orders. If this is done, there is a right of appeal to the Court of Appeal under Order 44 Civil Procedure Rule which caters for a review. This is for instance where one has an arbitration case. This is provided for under the Civil Procedure Rules. There is no right of appeal to the Court of Appeal. What parties do is apply for a review and technically they can then appeal to the Court of Appeal. In the Matter of the Estate of Mohamed Saleh Said Sherman also known as Mohamed Swaleh Sherman (Deceased) Mombasa High Court succession cause number 145 of 1998 (Hayanga J)

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CASE NO. 201

(There is no automatic right of appeal from an order of the High Court to the Court of Appeal from a probate matter) The personal representatives of the deceased sought leave under Order XLII, rule 1(3) of the Civil Procedure Rules and section 3A of the Civil Procedure Act to appeal to the Court of Appeal, and for stay of execution of the order sought to be appealed from. The court held that there is no automatic right of appeal to the Court of Appeal from a High Court order in succession matters as there is no provision for it. The application was dismissed.

HAYANGA J: There is no provision under the Law of Succession Act allowing an automatic right of appeal to the Court of Appeal from a High Court order but it can be made when there is leave. The right of appeal is not automatic and does not arise from any case that is adjudicated in a lower court. It must be given by statute or by any legal rules. Where it is not given then it does not exist. There must also be a realisation by court that it must minimise delays in finalisation of decisions. Secondly I think that in an application for leave to appeal the court ought to be satisfied that there is some substantial question of general interest or a substantial question of law of general importance. 56

56

The court should have based its decision on some legal provision or case law on the principles governing grant of leave to appeal. Surely the decision of the court should be anchored on the law, not on what the judge thinks. The judge may express his thoughts on the law, but should set out the law in the ruling or judgement.

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In the Matter of the Estate of James Gitumbi Kagwiri (Deceased) Nairobi High Court succession cause number 782 of 1999 (Waweru J)

CASE NO. 202

(A right of appeal is granted by statute, and where a statute has not granted such right the High Court has no power to give leave to a party to lodge an appeal.The Law of Succession Act has not granted a right of appeal from the decisions of the High Court to the Court of Appeal, consequently the High Court cannot grant leave to a party to lodge an appeal at the Court of Appeal against a decision of the High Court made under the provisions of the Law of Succession Act)

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An objector sought leave of court, under rule 73 of the Probate and Administration Rules and rule 39(a) of the Court of Appeal Rules, to lodge an appeal at the Court of Appeal against some decisions of the High Court. The court held that under the Law of Succession Act there were no provisions that gave the High Court to grant leave to appeal against a decision of the High Court to the Court of Appeal, and the inherent powers of the court did confer a power to the court to grant such leave since leave to appeal is granted by statute. WAWERU J:: It is trite law that a right of appeal must be granted by statute. Where there is no right of appeal granted by statute, the power of court to grant leave to appeal must be provided for by statute. For instance, section 75 of the Civil Procedure Act, Chapter 21 makes provision for such power to grant leave to appeal. The orders sought to be appealed against were made in proceedings under the Law of Succession Act, Chapter 160. I find nothing in this Act that empowers me to grant the leave sought, and none has been pointed out to me. I have no jurisdiction to grant leave to lodge the intended appeal. My inherent jurisdiction does not include the power to confer a right of appeal where none has been provided for by statute. For the above reasons I refuse this application. It is hereby dismissed with costs.

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In the Matter of the Estate of Hezron Bernard Wamunga (Deceased) Nairobi High Court succession cause number 1813 of 1999 (Koome J)

CASE NO. 203

(The Law of Succession Act does not provide for appeals from the High Court to the Court of Appeal, but leave can be granted on the strength of the decision of the Court of Appeal in Margaret Makhangu Kibwana v David John Kibwana civil appeal number 84 of 1995 (1995-1998 EA 175)

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A party sought leave, under section 3(1) of the Civil Procedure Act, section 50 of the Law of Succession Act and rules 67 and 73 of the Probate and Administration Rules, to file appeal against a judgement of the probate court, and for leave to file appeal out of time. The court found that the Law of Succession Act does not have provisions on appeals from the High Court to the Court of Appeal, but granted leave on the basis of the decision of the Court of Appeal in Margaret Makhangu Kibwana v David John Kibwana civil appeal number 84 of 1995 (unreported) KOOME J: Section 47 of the Law of Succession Act gives the High Court jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient. Hence, the High Court has jurisdiction to hear matters filed directly in addition to appeals. This matter was filed in the High Court as the court of first instance. Chapter 160 is a specialised and complete with its own rules of procedure. The Act regulates all the proceedings and provides for procedures to be followed. Rule 63(1) of the P and A rules provide the sections of the Civil Procedure that are applicable under the Succession Act are provided. The provision of the Civil Procedure that deal with appeals is not provided for. I have however come across a decision of the Court of Appeal in civil appeal number 84 of 1995 Margaret Makhangu John v David John Kibwana (unreported) where the Court of Appeal had this to say: ‘The position here, however, is that the appeal is from an order and not a decree. But in our view the use of the words ‘decree’ and ‘orders’ in section 47 of the Act (that is Chapter 160) is significant . Had a word such as ‘decision’ or ‘adjudication’ been used in place of those two distinct words then clearly the High Court’s decision or adjudication would have been nonappealable altogether. The effect of the case of word ‘decree’ as Hancox JA (as he then was) very correctly pointed out in the Income Tax case (supra) was that the discretion of the High Court was appealable as of right under section 66 of the Civil Procedure Act.’

The effect of this case which is binding upon this court is that if what emanates from the High Court is a decree in its original jurisdiction in a succession cause, the decree is appealable as of right. Reference can be made of Commissioner of Income Tax v Ramesh K Menon [19821988] I KAR 695. Another reference can also be made of Civil Application number

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Nairobi 115 of 2000 George Itotia Nganga v Mary Wanjiku Kimaru (unreported) a ruling of A B Shah JA (as he then was) who reiterated the dictum in the Margaret Makhangu case. The upshot of the above is that a judgement of the High Court whose outcome is a decree, the decree is appealable as of right and therefore there is no need for the leave of this court in this regard. The applicant had a right of appeal all along and this court does not have to give what the applicant has already. In the Matter of Habakuk Ochieng Adede (Deceased) Nairobi High Court succession cause number 721 of 2000 (Ang’awa J) (The Law of Succession Act does not provide a right of appeal to the Court of Appeal from decisions of the High Court in succession matters)

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CASE NO. 204

The dispute pitted a mother-in-law and her daughter-inlaw. The daughter-in-law had obtained a grant of letters jointly with the brother of the deceased. Her motherin-law then sought a revocation of that grant, but her application was rejected. She then sought leave of the High Court to challenge the decision on appeal at the Court of Appeal. The court dismissed her application upon the finding that the Law of Succession Act does not provide for appeals from decisions of the High Court to the Court of Appeal. The court was of the view that the only way a party in a succession cause could access the Court of Appeal on an appeal from the High Court is by way of challenging the offending decision through a review application premised of order XLIV of the Civil Procedure Rule, which procedure is permitted under rule 63 of the Probate and Administration Rules, and thereafter challenge the decision of the High Court on the review by way of an appeal to the Court of Appeal. The court pointed out that persons interested in the estate of an intestate should not confuse administrators with heirs. The fact that one has been appointed an administrator does not mean that he is the one to solely inherit the estate.

ANG’AWA J: Section 50 of the Law of Succession Act reads as follows: ‘An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final.’

In 1990, two subsequent amendments to this section was made to cover those who profess the Islamic faith:

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Appeal shall lie to the High Court in respect of an order or decree made by a Kadhi’s Court in respect of the estate of a deceased Muslim and with the prior leave thereof in respect of any point of Muslim law, to the Court of Appeal.’

Section 50A deals with the Chief Justice’s powers to make rules in consultation with the Chief Kadhi on Islamic law. The position therefore under the Act is that cases are commenced in the subordinate court have a right of appeal to the High Court of Kenya (I have noticed in the past and through experience that many parties would apply for revocation instead of appealing). When these cases are heard in the High Court, the decision of the said court is final. There is no right of appeal to the Court of Appeal. The exception is where a party professes to be a Muslim; he may appeal only with the prior leave of the court and only in respect of any point of Muslim Law. This provision is not available to the other parties. How then do cases reach the Court of Appeal? Like land cases that have been to arbitration there is no right of appeal to the Court of Appeal and yet such cases still reach there. The parties normally get round the issue of ‘no appeal to the Court of Appeal’ by first going to Order 44 Civil Procedure Rule. This order deals with a review. A party may in fact come under rule 63 which makes order 44, on review applicable and apply for a review of a courts order. If the party is not satisfied with the court’s decision, then they may appeal to the Court of Appeal. I find that the applicant has no right of appeal and would dismiss this application

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...it must be noted that an applicant/petitioner for a grant of letters of administration is not necessarily the one who will inherit the deceased’s property. All an administrator or an executor does is to administer the estate. They do not at all in anyway become heirs on obtaining such letters. Their task is to gather the estate, identifying the liabilities, sit with family and agree on apportionment of the estate as laid down in the Act – if it is intestate (see section 35 – 40) or according to Muslim law where parties are Islamic or according to the will where one has been made.

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In the Matter of the Estate of Mary Gachuru Kabogo (Deceased) Nairobi High Court succession cause number 2830 of 2001 (Ang’awa J) (Money held in a bank account to the credit of the deceased cannot be released to the administrators before the grant is confirmed. For those assets that are not disputed confirmation should be sought under the provisions of the Law of Succession Act, but for those contested the right course of action should be to move for determination of the matter under order XXXVI rule 1 of the Civil Procedure Rules)

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CASE NO. 205

A grant of administration intestate was issued to three persons who had previously filed three separate causes, but which were subsequently consolidated. One of them sought an order under rules 59 and 73 of the Probate and Administration Rules seeking to have money held in bank to the credit of the deceased released to him. The court declined.The grant had not yet been confirmed and money held in an account to the credit of the intestate cannot be refused before confirmation, since there were issues that were yet to be determined relating to beneficiaries and their entitlement. Secondly, there were three administrators yet the application was being made by only one of them. The court counselled that with respect to the assets that were not disputed the parties ought to seek confirmation, and for those issues that were contested, they could move the court under Order XXXVI of the Civil Procedure Rules as a separate cause. So after confirmation the aggrieved parties can have a right of a Appeal to the Court of Appeal.

ANG’AWA J: There are no specific rules for release of funds to an administrator before confirmation of a grant. What is interesting is that the grant was issued in the name of three administrators. These three should have specifically come up to support the application. Instead one of them now says he is in constant fear of his father and therefore cannot act. This clearly shows that the three administrators may not be able to carry out their duties. If this is so the Public Trustee is an option to this cause. What should occur is that the three administrators on defining all the pieces of properties rightfully belonging to the deceased apply for the confirmation of the grant after apportioning the said properties by way of a decree of consignity see section 32 to 40 of the said Act and Form P and A 7 (e). This matter is then set down for hearing of the confirmed grant.Where the parties dispute on certain properties, under rule 40 the disputed properties go into caveat/ protest hearing. The properties that are not disputed are confirmed under rule P and

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A 41. The properties that are disputed are heard under Order 36 as a separate cause to enable an appeal to the Court of Appeal. (There is no appeal from a succession cause to the Court of Appeal except for parties who profess the Islamic faith). Thus, in this application, unless the grant is partially confirmed – perhaps in this case, of funds held in the bank for the benefit of the children, the said sum cannot be distributed. Kaboi v Kaboi and others [2003] 2 EA 472 (Keiwua JA) (There is a right of appeal to the Court of Appeal from the decision of the High Court)

CASE NO. 206

A party filed an application at the Court of Appeal for leave to file appeal from a decision of the High Court on a probate matter. It was held that there is power to grant such leave in sections 66 and 75 of the Civil Procedure Act and Order XLII, rule 1(2) (3) of the Civil Procedure Rules as read together with section 47 of the Law of Succession Act.

KEIWUA JA: The dismissal of the appellant’s application for revocation of the grant of letters of administration gave rise to an order, which can only be appealed from with leave of the superior court or that of this court. The relevant provision of the Civil Procedure Act and Rules are to be found in sections 66 and 75(1) (h) and Order XLII, rule 1(2) and (3). Section 66 aforesaid says:

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’66. Except where otherwise expressly provided in this Act, and subject to the provision as to the furnishing of security as may be prescribed, an appeal shall lie from the decrees or any part of decrees and from the orders of the High Court to the Court of Appeal.’

This means that unless the Civil Procedure Act has otherwise circumscribed the right of appeal, such a right is automatically conferred by section 66 of the Civil Procedure Act. However, the Act has in section 75 restricted the right of appeal from orders by making provision as to when orders of the High Court may be appealed from as of right or when they may be appealed from with leave or without leave when the order is made under rules from which an appeal is expressly allowed. According to the section, the order made by the superior court in this instance cannot be appealed from as of right.The order has also not been made under the rules, which an appeal is expressly conferred. It remains to consider whether an order made under section 47 of the Law of Succession Act Chapter 160 of the Laws of Kenya may be appealed from with leave of the superior court. The substantive law which concerns the subject of this application under which leave to appeal has been sought, is the Law of Succession Act which under Part VII thereof confer jurisdiction to the High Court in this way:

‘the High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.

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Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice. 50.

An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final.’

It seems to me that where the High Court is not represented by a magistrate as envisaged by the proviso to section 47 and it entertains and determines a matter under the said section what results from such determination is either a decree or an order whose fate as regards the rights or incidents of appeal shall be governed by the aforesaid provisions of the Civil Procedure Act and Rules. This view is supported by the decision of this court in the case of Margaret Makhangu John v David John Kibwana (Mombasa) civil appeal number 84 of 1995 (unreported), in which the court held that in the case of Commissioner of Income Tax v Ramesh K Menon (1982-88) 1 KAR page 695 Hancox JA (as he then was) held that the use of the word ‘decree’ in the relevant section of the Income Tax Act which provided that an order of the High Court on appeal shall ‘have effect...as a decree’ was conclusive and such an order was therefore appealable to the Court of Appeal as of right under section 66 of the Civil Procedure Act. The court in the Mombasa case accepted that finding as an authority for the proposition that the use of the word ‘decree’ in section 47 of the Law of Succession Act has the effect of conferring on an aggrieved party the right to appeal against the decision of the High Court under that section as of right. Though the decision, the court was concerned with in the Mombasa appeal was an order, the court nevertheless held that the use in the section of the words ‘decree’ and ‘order’ showed that the provisions of section 66 of the Civil Procedure Act applied.

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That section has provided that in the case of an order the right of appeal is to be governed by any express provision under the Civil Procedure Act. That Act in section 75 has made such provision.The latter section has set out instances where appeals from orders lay as of right and where they lay with leave of the court. According to the affidavit supporting the application for stay of execution or further proceedings it has been deponed to as follows: ‘4.

That when I learnt about the said succession cause, I filed Embu High Court miscellaneous application number 28 of 1999 seeking revocation of grant. My said application for revocation of grant was dismissed by Hon. Tuiyot J on 5 February 2001. The dismissal order is the one I am intending to appeal against.’

This leaves no doubt that the applicant is grappling with an order and not with a decree for which according to the decision in the Mombasa appeal and observations relating to the language of section 47 of the Law of Succession Act, that leave of the court appealed from is required. I had heretofore outlined the provisions of the Civil Procedure Act and referred to Order XLII of the Civil Procedure Rules, which were ruled in the Mombasa appeal to be the law governing appeals to this court arising under the Law of Succession Act, Rule 3 of that order require that leave to appeal must be sought within 14 days of the decision appealed from.

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That leave has not been so sought and the applicant appears to be basing his application for this limb of the prayer on Rule 4 of this court’s rules, which is inapplicable at this stage. The matters of this application seem to come under rule 3 of Order XLII which should have been invoked within the period stipulated therein. ***

11.4 INHERENT JURISDICTION It is moot point whether the Law of Succession Act has a provision equivalent to section 3A of the Civil Procedure Act, which saves the inherent power of the court in succession causes. Opinion of the High Court is divided on whether section 47 is such provision. There is though rule 73 of the Probate and Administration Rules, which is in similar terms to section 3A of the Civil Procedure Rules. Rule 73 says: ‘Nothing in these Rules shall limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court.’

Cases numbers 206, 207, 208, 209, 210, 211 and 212 illustrate the application of the inherent powers of the court to deal with issues that confront them in succession disputes. In the Matter of Peter Gicheru Kagotho (Deceased) Nairobi High Court succession cause number 376 of 1983 (Githinji J) (The court can exercise inherent powers to prevent perpetuation of fraud and abuse of its orders)

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CASE NO. 207

The applicant sought the cancellation of a subdivision and transfer of certain parcels of land on the grounds that the same was not done in keeping with an earlier order of the court that the property be shared equally between the two houses of the deceased. The court found that the subdivision and transfers were not in conformity with the earlier order and revoked them, and proceeded under the inherent powers to order the rectification of the relevant land register to effect the revocation of the subdivisions and transfers.

GITHINJI J: This is a clear case where Susan Wambui has acted fraudulently and in defiance of the court orders to deprive the house of Karen Wambui its rightful share of the land. The court has inherent jurisdiction to make orders as may be necessary for the ends of justice. Further court has jurisdiction to order the rectification of a register under Section 143 of the Registered Land Act thorough an application filed in the suit (Order XXXVI, rule 3F Civil Procedure Rules). Although the application was not specifically brought under Order XXXVI, rule 3F Civil Procedure Rules, the court has still power under its inherent jurisdiction to prevent the perpetration of fraud and abuse of its orders.

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Consequently, I allow the application with costs to the applicant and grant orders in terms of prayers numbers 1 and 2 of the application. In the Matter of the Estate of Mathu Ngwaro alias Nikola (Deceased) Nairobi High Court succession cause number 45 of 1994 (Waweru J) (The court in exercise of its inherent powers can refer an aspect of a succession dispute to determination by the elders) CASE NO. 208

The court was asked to set aside an earlier order of the court which was based on an award of a panel of elders. The elders had been asked to determine whether two women were married to the deceased, and therefore whether they were entitled to inherit from him. The court held that the order to refer they made to elders and to adopt the decision of the elders was made under the inherent powers of the court.

WAWERU J: The order of reference of 20 January 2000 could not have been made under the provisions of Order 45 of the Civil Procedure Rules. This Order has no application to succession matters; - see rule 63 of the Probate and Administration Rules. I am not prepared to rule that the order was of reference of 20 January 2000 was entered without jurisdiction...

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The award is challenged mainly upon the ground that the provisions of Order 45 of the Civil Procedure Rules were flouted in that no depositions were filed together with the award. I have already ruled that the order of reference could not have been made under Order 45 aforesaid as it has not application to succession causes. It must therefore have been made under the inherent powers of the court. The order cannot be challenged upon the ground that it does not comply with the provisions of Order 45 aforesaid. In the Matter of the Estate of Benjamin Gicheha (Decesaed) Nairobi High Court succession cause number 692 of 1994 (Koome J)

CASE NO. 209

(The court can under the inherent powers dismiss an application for want of prosecution) Orders were sought under rules 5 and 73 of the Probate and Administration Rules for the dismissal of an application, which had been pending before court for four years, for want of prosecution. The court held that there was jurisdiction under the inherent powers of the court to dismiss such an application.

KOOME J: I have considered this application carefully within the parameters of Rule 73 that gives this court inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

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Parties who file their matters in court should take initiative of prosecuting the same. A party who has been sued in court is obviously kept under suspense and anxiety. The courts should not be used as a weapon of torture by some parties who want to harass others by taking them to court, I find the applicants who filed an action about 4 years ago, and they have not been in touch with their advocates who are representing them for two years to have lost interest in the application. Accordingly the pendency of the application is an abuse of the process... In the Matter of the Estate of Erastus Njoroge Gitau (Deceased) Nairobi High Court succession cause number 1930 of 1997 (Khamoni J) (The Law of Succession Act and the Probate and Administration Rules have no provisions which would empower the court to order the Registrar of the court to sign documents which the administrators have declined to sign and the inherent power of the Court cannot be involved for that purpose.

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CASE NO. 210

Beneficiaries brought an application under rule 49 of the Probate and Administration Rules, asking that the Deputy Registrar of the court do sign land transfer documents and any others that may be required to be signed by the administrators. The court dismissed the application. The court held that there were no provisions in the Law of Succession Act and Rules which empower the court to authorise the Registrar of the court or any other officer of the court to perform the duties beneficiaries were asking the court to perform.

KHAMONI J: ... it should be realised that the Law of Succession Act forms a specialised area in the law of this country. As such it has ousted provisions of the Civil Procedure Act and Rules so that only specially permitted provisions under rules 41 and 63 of the Probate and Administration Rules are allowed to apply in proceedings under the Law of Succession Act. Having carefully considered what has been brought to my attention during the hearing of the summons dated 9 January 2003, the same be and is hereby dismissed with no order as to costs as there are no provisions under the Law of Succession Act and Rules empowering the court to authorise the Registrar, a Deputy Registrar or any other officer of the court to perform the duties the applicants before me want the court authorise the Deputy Registrar to perform. Those provisions are not there, not by accident, but by design because it is undesirable and improper to have them there as I will briefly demonstrate herein under. Rules 49 and 73 of the Probate and Administration Rules do not help the applicant out. Rule 49 enables an applicant to file a summons supported, if necessary, by affidavit where no provision is made elsewhere in the Probate and Administration Rules for the form to be used to file the application. That is all that that rule provides for and

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indeed, the applicants have used the rule to so file the summons before me. The rule does not entitle them to get the order prayed for. Under rule 73 the court is authorised to use its inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. The court must be careful in using this rule so that it is only used in deserving situations where no specific provisions exist to deal with the issue in question. Provisions of the Law of Succession Act and Rules are carefully designed so that an administrator or executor or personal representative comes to be such a person only after a specialised procedure has been put through. Nobody is just picked from the streets and told to exercise the powers and carry out duties of a personal representative without such a person having been appointed personal representative through the specialised procedure set out in the provisions of the Law of Succession Act,

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The personal representative therefore performs his duties and carries out his responsibilities, signing documents like transfers, applications for consent of land control board, mutations and the rest, because he is administering the estate of the deceased and he is a personal representative because he has been granted probate or letters of administration as an executor or an administrator consequent to which, by virtue of section 79 of the Law of Succession Act, the executor or administrator gets all the property of the deceased vest in him. That having been done, the personal representative exercises the powers specifically given to him by section 82 and performs the duties specifically imposed upon him by section 83 of the Law of Succession Act. I do not therefore, I think it will be lawful for this court exercising its inherent powers under rule 73, a mere rule, to overlook the legal effect of substantive provisions like sections 53, 71, 79, 82 and 83 in the main Act bearing in mind that Act, having created such a special personal; representative with powers and duties, has provided sanctions against the same personal representative if he fails to shoulder the powers given him and or fails to perform the duties imposed upon him. If the respondent, as a co-administrator, has refused to sign documents to effect the distribution of the estate, there are proper provisions in the Act, not only for dealing with personal representatives who fail to administer estates for which they have obtained grants of representation, but also for handling such a situation generally. I am not the applicant’s advocate, but those are the provisions the applicant should look for and rules 49 and 73 of the Probate and Administration Rules, as cited in this summons, have no place on that issue.The Registrar of this court or his deputy or any other officer of the court not having been granted probate or letters of administration and therefore having had no property of the deceased vest in him and no powers and duties in accordance with the provisions of the Law of Succession Act cannot become an executor or administrator and as such cannot administer the estate of the deceased person and the court to order him or authorise him to administer by signing any of those documents as requested in this summons is to make an order which is not supportable under the Law of Succession Act and is therefore null and void. It be noted, and as I have said earlier, the Civil Procedure Act and its rules do not apply on this issue in proceedings under the Law of Succession Act and cannot come to the rescue of the applicant.

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Amos Kimondo Ngotho v Margaret Wanjiku Kimondo Nakuru High Court succession cause number 287 of 1998 (Rimita J) CASE NO. 211

(The court can invoke rule 73 of the Probate and Administration Rules to revoke a grant in exercise of its inherent powers where necessary in order to meet the ends of justice or to prevent abuse of the process of the court)57 The facts are as set out in the ruling.

RIMITA J: Amos Kimondo Ngotho died on 7 August 1995 aged 79 years. According to the material before me he was survived by his widow, Margaret Wanjiku Kimondo, three sons and two daughters. His estate comprised of two parcels of land. The widow Margaret Wanjiku Kimondo petitioned for letters of administration of the deceased – estate, the same was advertised in the Kenya Gazette but she died before she was issued with the grant of the letters of administration One of the sons of the deceased applied to have the letters of administration issued to him in place of the deceased widow who was his mother. He was issued with temporary letters of administration. It turned out that he had no consent from his brothers and sisters who had equal rights with him to apply for letters of administration. He could not have done this if he was not out for mischief.

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Mr Mindo for the respondent in the application before me raised important points of law. One was that there was no prayer for revocation of the grant and as such nothing can be done to interfere with its terms. Rule 73 of the Probate and Administration Rules provides as follows: ‘Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court.’ As I said earlier, the respondent’s intentions could not have been good when he excluded his brothers and sisters from the administration of their father’s estate. Had the court been properly briefed on the matter it would not have issued the grant. Consequently I order that the grant issued to the respondent Milton Mathenya Kimondo be cancelled forthwith. He will surrender the same to the court for such cancellation.

57

The invocation of rule 73 of the Probate and Administration Rules is really not necessary for the purpose of the court revoking a grant on its own motion since section 76 of the Law of Succession Act has expressly given the court power to revoke a grant on its own motion. Inherent powers of the court, as a matter of law and practice, are invoked in circumstances where there is no express provision on some particular aspect.

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Temporary letters of administration will issue to the following: (a)

Milton Mathenya Kimondo

(b)

Morrison Muriithi Kimondo

(c)

Eunice Mwihaki Kimondo

(d)

Susan Wanjiru Thuo

The said administrators may apply for confirmation when the issue of distribution is agreed upon Morris Mutuli and another v Alice Mutuli Kola and others Kisumu Court of Appeal civil appeal number 236 of 2000 (Kwach, Omolo and Tunoi JJA) (The court can make orders, in exercise of its inherent powers, restricting the filing of numerous applications by parties if the effect of the filing of such numerous applications is prejudice to the rights of other beneficiaries, especially minors)

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CASE NO. 212

The deceased was survived by three widows and several children; the grant of letters was made to the widows jointly.The sons were unhappy with the grant being made to their mothers, and they complained that the same was made in the absence of a petition; their application for revocation of the grant was dismissed by the court. On appeal they complained that the court had impeded their access to the judicial process when it was directed that no further applications were to be filed in the cause without the consent of the court. The appeal was dismissed. The court held that the court had jurisdiction under rule 73 of the Probate and Administration Rules to make such an order, and given the circumstances of the case the court was justified in making such an order.

KWACH, OMOLO and TUNOI, JJA: The learned judge dismissed the application and at the end of his ruling he said: ‘I note that there have been numerous applications in this cause which as Mr Fwaya has pointed out have deliberately delayed due and proper administration of the estate and hardship is likely to be caused to some of the beneficiaries especially young children of the deceased. For this reason I direct that no further application should be made except with my consent.’

That is the order which the appellants are complaining about in this appeal. They say it restricts their right to unimpeded access to the judicial process; that they were not given an opportunity to be heard before the order was made; and that there was no prayer for it in the application. There is really no substance in any of these complaints. The learned judge did not say that the appellants were permanently barred from making any application. All he said was that such applications would be subject to the consent of the court being obtained. That is a perfectly proper order for a court to make to ensure that a party does not manipulate the process of the court to his own

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advantage and to the detriment of innocent parties. The judge gave his reason for the restriction which was that hardship was likely to be caused to some of the beneficiaries and in particular the deceased’s young children. that is the kind of order the judge was entitled to make, and had the power to make, in exercise of his inherent jurisdiction and was in full accord with rule 73 of the Probate and Administration Rules which states:‘73.

Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court...’

The appellants who are mature adults cannot be allowed to embark on a course of conduct in relation to the administration of the estate of the deceased which would be likely to prejudice the rights of other beneficiaries, and in particular young children some of whom may be younger than or of the same age as their own children. That is to say the least selfish. ***

11.5 THE CIVIL PROCEDURE

AND

PROBATE PRACTICE

The Law of Succession Act is apparently a fairly comprehensive legislation, complete with its own procedures and forms, set out in the Probate and Administration Rules. Consequently, a section of the High Court holds the view that the Law of Succession Act is self-contained, and it is dependent on the Civil Procedure Act and Rules to the extent that the Law of Succession Act has permitted. The law of Succession Act has not referred to any provision in the Civil Procedure Act and the Rules, but rule 63(1) of the Probate and Administration Rules has made reference to some provisions of the Civil Procedure Rules.The only other reference to a provision of the Civil Procedure Rules is made in rule 41(3) of the Probate and Administration Rules.

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Rule 41(3) states: ‘Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.’

Rule 63(1) states: ‘Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX, together with the High Court (Practice and Procedure) Rules, shall apply so far as relevant to proceedings under these Rules.’

There are challenges as to whether the provisions of the Civil Procedure Act and Rules that are not mentioned in the Law of Succession Act and the Probate and Administration Rules are to be applied in probate and administration practice. In cases numbers 213, 214, 217, 218, 219 and 261 the courts decline to apply provisions of the

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Civil Procedure Act and Rules that have not been expressly imported into probate practice by the Law of Succession Act. In case number 215 the court applies a provision of the Civil Procedure Act despite the fact that it has not been expressly imported by the Law of Succession Act or the Probate and Administration Rules. Case number 216 discusses and illustrates the application of the provisions of the Civil Procedure Rules in suits filed under the provisions of the Civil Procedure Act, and which are independent of the succession proceedings. Case number 216 makes the point that where a party seeks to obtain orders that are enforceable against the estate of the deceased or even against a party interested in the estate, ostensibly enforceable under the machinery set up in the Civil Procedure Act and Rules, granted that the succession processes set out in the Law of Succession Act and the Probate and Administration Rules do not have clear enforcement or execution mechanisms, the proper action to bring in the circumstances should be an action under the Civil Procedure Rules. Case number 255 also discusses matters which ought to be adjudicated under the Law of Succession Act, and matters which should be brought under the Civil Procedure Act and Rules. In the Matter of the Estate of Ng’ang’a Kamau (Deceased) Nairobi High Court P and A cause number 875 of 1993 (Khamoni J) (Under the Law of Succession Act there are no provisions allowing the Registrar of the High Court to carry out the responsibilities of the executor of a will or administrator of the estate of the deceased person)

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CASE NO. 213

Two administrators appointed to manage the estate of the deceased failed to cooperate to complete the administration, as one of them declined to sign transfer documents to facilitate the vesting of the property in the heirs.The other administrator moved the court under the provisions of the Civil Procedure Act, asking the court to command the Registrar of the court to sign all the necessary documents relating to the transfer of certain pieces of land. It was held that where such a situation arises the proper course of action would be to move the court under the relevant provisions of the Law of Succession Act, for appropriate orders, instead of moving under the Civil Procedure Act.

KHAMONI J: But as I was saying on 15 April 2002, if Wairimu Ng’ang’a is not cooperating with Karuru Ng’ang’a, her co-administrator, to complete the administration of the estate, this is not simply a situation where a deputy registrar of the court should sign documents for the unco-operating party. It is a case relating to the administration of the estate and a deputy registrar would not fit into the shoes of an administrator whose duty is not only to sign the document in question but also to continue administering the estate to the final end.

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If an administrator does not co-operate on the administration of the estate, it becomes a case of failure to administer the estate and the problem should be dealt with under the provisions of the Law of Succession Act and not under the provisions of the Civil Procedure Act where a deputy registrar could come in to assist. ...From what I am saying above, therefore, Karuru Ng’ang’a’s summons dated 28 January 2002 is incompetent and improper. The same be and is hereby dismissed. In the Matter of the Estate of Joseph Mwinga Mwaganu (deceased) Nairobi High Court succession cause number 1814 of 1996 (Khamoni J)

CASE NO. 214

(An application in a succession cause would only be competent if it is brought within the provisions of the Civil Procedure Act and Rules that have been imported into probate and administration practice) The applicant brought an application seeking stay of execution of a confirmed grant under order XLI rule 4 of the Civil Procedure Rules and section 3A of the Civil Procedure Act. The court declined to grant the orders sought on the grounds that the provisions upon which the application was premised were not recognised by the Law of Succession Act.

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KHAMONI J: The application is brought under Order XLI, rule 4 of the Civil Procedure Rules and section 3A of the Civil Procedure Act. Those provisions are not among the provisions specified in rule 63(1) of the Probate and Administration Rules to apply in probate and administration proceedings which are governed by their own rules of procedure.The courts inherent powers, if to be invoked in probate and administration proceedings, are found in rule 73. In the circumstances therefore, I hold the opinion that this application is misconceived and should be dismissed on that basis. ... The question is whether the administration of a deceased’s estate by the administrator is execution of a decree or a court order in terms of Order XLI, rule 4 of the Civil Procedure Rules. I do doubt very much if it is execution.

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In the Matter of the Estate of Stephen Kemei Asis Eldoret High Court succession cause number 32 of 1997 (Etyang J)

CASE NO. 215

(Where a succession cause is filed at the resident magistrate courts, and the said court lacks pecuniary jurisdiction over the cause, the High Court has power, under section 18 of the Civil Procedure Act, to order the transfer of the matter to the High Court for hearing and disposal) A succession cause, filed at a resident magistrate’s court, was ordered transferred by the court on its own motion under section 18 of the Civil Procedure Act, to the High Court for hearing and disposal. The estate was valued at KShs 1,000,000.00, and the court held that the resident magistrate’s court lacked pecuniary jurisdiction over it.

ETYANG J: It is not clear from the record of proceedings whether the application was granted and when or whether the learned Senior Resident Magistrate Kapsabet is the one who made the order transferring that cause to this court. The position is that Kapsabet Succession Cause number 20 of 1997 was eventually transferred to this court and registered as High Court Succession Cause number 238 of 2001, which is still pending determination.

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Though Mr Momanyi Advocate has submitted that the transfer of the Kapsabet Succession Cause number 20 of 1997 was wrong, I hold the view that it was properly done pursuant to the provisions of section 18 of the Civil Procedure Act. Consequently High Court Succession Cause number 238 of 2001 is properly filed.58

58

If transfer of the lower court succession cause was ordered by the lower court itself, then the transferred cause as filed at the High Court would be incompetent, since it would be improperly before the High Court for the subordinate courts have no power under section 18 of the Civil Procedure Act to order transfers of cases from themselves to the High Court.

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Kangwana and Company Advocates v Solomon I Kisili Nakuru Court of Appeal civil appeal number 41 of 1998 (Platt, Apaloo JJA and Masime AJA) (Suits against executors and administrators could be brought orders XXX, XXXVI and IV of the Civil Procedure Rules, if the party hopes to obtain orders that he can execute against the other)

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CASE NO. 216

The testator, a Catholic priest, left his estate to his two executors and a third person, the respondent in the appeal. There was a general provision leaving the personal effects and the contents of his dwelling houses. The respondent took possession of the personal effects and the contents of the house, upon the testator’s death. The executors were aggrieved and they briefed counsel to intervene on their behalf.The respondent then moved the court under section 31 of the Law of Succession Act and rule 49 of the Probate and Administration Rules claiming that the personal effects and the contents of the houses in his possession were gifts made to him by the deceased in contemplation of death. The other interested persons to the estate were not made parties to the suit, but the application was endorsed for service upon their advocates. The application was heard ex parte and the orders were granted, thereafter contempt orders were obtained against the executors. On an appeal by the advocates for the executors, the Court of Appeal held that the proceedings were a farce as they did not involve the correct parties, and the orders sought could not be enforced against persons who had not been made parties.

PLATT, APALOO JJA and MASIME AJA: Order 30 of the Civil Procedure Rules, makes special provision for suits against executors and trustees in cases which have no application to the facts or the relief sought in this case. Order 36 also enables executors or administrators to obtain the court’s determination of certain questions and incidental relief by originating summons. Again, there is no proper basis for invoking the procedure prescribed by that order. Although we may be wrong on this, in view of our expressed appreciation of the true reliefs that the respondent sought of the executors and trustees of the estate, his proper course would have been to commence a suit against them by plaint under Order 4, rule 1 and name them as defendants. We think the respondent should have proceeded to state the nature of his interest, the capacity in which the defendants were sued and the nature of the relief he sought against them. They would then have been determined and pronounced upon in the normal way. It is only then we think that binding orders capable of enforcement against the executors could have been made. In our opinion, the respondent did not set on foot a proper action that would have resulted in the making of binding and enforceable orders against either the executors or the real and named appellant in this case, that is Kangwana and Company.

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The whole proceeding seems to us, if we may say so without offence, a pious farce. Page 617 Chapter 29 of Tristam and Cootes Probate Practice, (25 ed) provides helpful guidance on how actions, such as the present can be instituted, who may be the parties, the relief that must be endorsed on the writ and the like. In Re Estate of Kilungu (deceased) [2002] 2 KLR 136 (Khamoni J) (A probate court exercising jurisdiction under the Law of Succession Act cannot entertain an application for injunction CASE NO. 217 brought under order XXXIX of the Civil Procedure Rules. Similarly, a probate court cannot exercise inherent power under section 3A of the Civil Procedure Act, but under rule 73 of the Probate and Administration Rules. The rule however cannot be used to do what the Law of Succession Act does not allow the court to do) KHAMONI J: I have posed the question seeking to know the provision of the Law of Succession Act which allows the court to entertain an application for an injunction under order XXXIX of the Civil Procedure Rules in probate and succession proceedings. Mr Kitulu for the applicant/objector has mentioned to me section 45(1) of the Law of Succession Act and has added rules 44, 49 and 63 of the Probate and Administration Rules and claimed that those provisions allow the court to entertain an application for an injunction under order XXXIX of the Civil Procedure Rules in probate and succession proceedings. Mr Wandago for the administrators does not agree. He adds that the objector’s application for an injunction in this matter is incompetent and should be struck out.

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I have looked at the provisions of the Law of Succession Act mentioned by Mr Kitulu during his submissions where he has added rule 73 of the Probate and Administration Rules, and have also looked at his summons dated 2 November 2001 where he mentions section 76 of the Law of Succession Act. The proper position is that none of those provisions allow the court to entertain an application for an injunction under Order XXXIX of the Civil Procedure Rules in probate and administration proceedings where the procedure at each stage is fully provided for under the provisions of the Law of Succession Act and the Rules thereon,. It be noted that rule 63 of the Probate and Administration Rules providing for the use of certain provisions of the Civil Procedure Act and Rules in probate and administration proceedings does not include order XXXIX of the Civil Procedure Rules. It does not even mention a section like section 3A of the Civil Procedure Act. In fact instead of section 3A of the Civil Procedure Act the provisions of the Law of Succession Act have their own rule 73 of the Probate and Administration Rules which specifically gives the court inherent powers in matters of Probate and Administration. That having been done, it does not mean that rule 73 can be used to do what the Law of Succession Act does not allow the court to do. That Rule, just like section 3A in the Civil Procedure Act, has to be used to do what is lawful only and to apply Order XXXIX of the Civil Procedure Rules in probate and succession matters when rule 63 of the Probate and Administration Rules has excluded Order XXXIX from

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the provisions of the Civil Procedure Act permitted to be applied in probate and administration matters, will be to do what is not lawful in probate and administration matters. From what I have been saying above therefore, I agree with what Mr Wandago has said that this summons dated 2 November 2001 is incompetent, as an injunction under order XXXIX of the Civil Procedure Rules in the Civil Procedure Act (Chapter 21 Laws of Kenya) is not available in probate and administration proceedings under the Probate and Administration Rules of the Law of Succession Act (Chapter 160 Laws of Kenya). Mr Wandago said the application should be struck out but I think it deserves a more drastic measure than just striking it out. It deserves dismissal and I hereby dismiss the said summons dated 2 November 2001… In Re Estate of Njuguna (Deceased) [2002] 2 KLR 292 (Khamoni J) (There is no provision in the Law of Succession Act allowing the court to compel the Registrar of the court to perform the duties and carry out the responsibilities of a personal representative)

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CASE NO. 218

A beneficiary brought an application asking the court to order the Registrar of the court to perform the duties and carry out the responsibilities of a personal representative. This was based on the complaint that the personal representative had failed to perform his duties. It was held that the Law of Succession Act did not have provisions that would have allowed the court to make such an order. It was further held that the provisions in the Civil Procedure Act that provide for that sort of thing have not been expressly imported into succession practice by the Law of Succession Act.

KHAMONI J: ...this summons is dismissed because there are no provisions under the Law of Succession Act, Chapter 160 Laws of Kenya together with the relevant rules thereof empowering the Registrar or a Deputy Registrar of the Court to perform the duties and carry out the responsibilities of an administrator or executor of the estate of a deceased person. This is because the administrator or executor of the estate performs his duties and carries out his responsibilities signing documents like transfers, applications for consent of land control board, mutations and the rest because he is administering the estate of the deceased, and he administers because he has been granted Probate or letters of administration, something done through a specialised procedure where there are provisions of the law, which the applicant herein is not invoking, under the Law of Succession Act not only for dealing with executors or administrators who fail to administer the estates they are appointed to administer but also for handling such a situation generally. The Registrar or his deputy not having been granted Probate or letters of administration cannot became executor or administrator and as such, cannot administer the estate of a deceased person under the Law of Succession Act and its

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rules and to order him to sign any documents mentioned above is to make an order which is not supportable under the Law of Succession Act and is therefore null and void as the Civil Procedure Act and its rules do not apply on this issue and cannot therefore come in to rescue the applicant In the Matter of the Estate of Joram Waweru Mogondu (Deceased) Nairobi High Court succession cause number 2721 of 2002 (Koome J) (The provisions of the Civil Procedure Act on execution of court orders have not been imported into probate practice, and they cannot therefore be invoked or applied in succession proceedings) CASE NO. 219

A co-administrator sought orders that certain beneficiaries do comply with the orders of the court, and further that execution of the order of the probate court do issue. The application was premised on section 82 of the Law of Succession Act, rule 49 of the Probate and Administration Rules and section 3A of the Civil Procedure Rules. The application was dismissed; the court found that the orders sought touched on execution of court orders, and the provisions of the Civil Procedure Act on execution of orders had not been imported into probate and succession practice.

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KOOME J: According to the applicant all her efforts to get the co-administrator to settle the ... amounts due to the beneficiaries have not been successful. Unfortunately my reading of the sections under which this application has been made does not provide for execution of the order if the personal representative of the deceased has failed to comply with the order. What the applicant is seeking for is an order to compel the administrators to pay the sum as per the consent order. Order 21 of the Civil Procedure Rules which deals with matters of execution is not one of the orders imported to the Law of Succession Act, In the absence of a law supporting the prayers sought, I have no basis upon which I can grant the order. I am however persuaded that the personal representatives of the deceased estate herein have failed in their duties and in view of the provisions of section 47 of the Law of Succession Act and rule 73 of the P and A rules I hereby direct the personal representatives do produce to the court a full inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith from the date the grant was issued within ninety days from the date of this ruling.

CHAPTER TWELVE NON-CONTENTIOUS PROBATE 12.1 INTRODUCTION Probate and administration proceedings are supposed to be non-contentious. Parties move the court for a grant of representation, and thereafter seek its confirmation to pave way for the distribution of the estate. If directions are necessary, basically for guidance purposes, a party can always go back to court for the same on any aspect of administration. A non-contentious matter, nonetheless, turns contentious if disputes arise which the parties are unable to resolve amicably out of court.

12.2 CITATIONS Citations are notices to a party requiring him to take certain steps with respect to obtaining representation to the estate. The Law of Succession Act provides for citations in section 62 and in Part VI of the Probate and Administration Rules. Cases numbers 220 and 221 show circumstances under which citations issue, and some of the procedures to which they are subject. Section 62 provides: ‘When a person who has been appointed by a will as an executor thereof has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, calling upon the executor to renounce his executorship or apply for a grant of probate of the will: Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

Provided that: (i)

When one or more of several executors have proved a will, the court may, on the death of the survivor of those who have proved, grant letters of administration without citing those who have not proved; and

(ii)

There may be such limited grants of letters of administration in accordance with the provisions of section 54 as may, in the opinion of the court, be necessitated by any special circumstances.’

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Re Mauchauffee [1969] EA 424 (Harris J) (Citations may be dispensed with under certain circumstances) CASE NO. 220

The deceased intestate was survived by two daughters. One of them sought the grant of letters, the other daughter was resident in France and did not reply to letters. The petitioner asked the court to dispense with the requirement for issuance of a citation on the sister, as the estate was insolvent. It was held that given the special circumstances of the insolvency of the estate citation would be dispensed with, but the grant issued to the petitioner was limited until the sister applied for and obtained a grant.

HARRIS J: ...it has long been the practice in this country for the court, in a case such as the present, where the precise whereabouts of one of several persons entitled to the grant are not known so that his consent cannot be obtained, to require the issue of a citation before making a grant to the other or others of them.

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Objection to this course has been taken in the present case owing to the estate being insolvent, and the question arises as to whether the issue of such a citation can properly be dispensed with. Although when there are numerous persons equally entitled to a grant and aware of their rights the court commonly exercises a discretion as to whether all or, if not, which of such persons should be given the grant, it is not entirely clear that a selection can properly be so made as to exclude one who may be without notice¸ actual or imputed, of his rights, and it is to meet this difficulty that normally a citation is issued. If it were not for the factor of insolvency I would find it difficult to dispense with a citation in the present case, but in the special circumstances I direct that a grant may be issued to the petitioner without citing the sister in France but limited until that sister shall herself apply for and obtain a grant.

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In the Matter of the Estate of Stephen Mwangi Mbugua (deceased) Mombasa High Court civil case number 1 of 2003 (Sergon J) CASE NO. 221

(Upon the service of a citation, the person served should enter appearance) A citation was filed by the deceased’s widow citing the mother of the deceased, seeking to be joined as administatrix of the estate. The mother filed a replying affidavit to the citation. It was held that that was no procedural as it did not comply with rule 21(5) of the Probate and Administration Rules.

SERGON J: …. When the deceased’s mother was served she filed through the firm of Gachiri Kariuki and Company Advocates a replying affidavit and a Notice of Appointment of Advocates.This is not what is anticipated under the provisions of rule 21(5) of the Probate and Administration rules which provides: A person who has been cited to appear, may within 15 days of service of the citation upon him, inclusive of the day of such service, or at any time thereafter if no application has been made by the Citor under rule 22(5) or rule 23(2), enter appearance… by filing form 27 and shall forthwith thereafter serve on the Citor a copy of that form sealed with the seal of the Registry. Provided that the Registrar may in any case at the time of issue if the citation increase the period of 15 days to such period as he thinks fit.

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It would appear that these provisions have not been complied with by the person cited. She has decided to file documents which are not recognized by the rules. On the face of it she has not entered appearance as required. I am constrained not to consider the submissions made by Mr. Gachiri Kariuki because he has not come before this court in the manner prescribed. I will therefore treat that as though the person cited has not entered appearance within the prescribed time.There is no application pending for leave to extend time for entering appearance as envisaged under rule 21(5). Where there is no appearance on the part of the person cited, the Citor’ next step is to make the applications specified under rule 22(5) of the Probate and Administration rules. The Chamber Summons dated 6 February 2003 is in my opinion premature because it is presumed that the above provisions have been exhausted/ consequently, I will order for the Chamber Summons dated 6 February 2003 struck out.The replying affidavit of Lilian Wangui Mbugua sworn on 17 June 2003 is ordered struck out also for being improperly before this court. As things stand now, the Citor should follow the rules laid down under part VI citations of the Probate and Administration Rules to seek for the available remedies. The prayers sought before me cannot be granted at this stage. They are refused.` ***

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12.3 RENUNCIATION Executors appointed by will cannot be compelled to act, and they have the liberty to renounce probate if they so wish. Persons with prior right to administration upon intestacy may not wish to apply for administration. Renunciation of executorship is covered by section 59 of the Law of Succession Act and Part V of the Probate and Administration Rules. Under the Rules, it extends to cover renunciation of right to apply for administration in cases of intestacy. Case number 222 illustrates the principles that govern renunciation. Section 59 provides as follows: ‘A person who has been appointed by a will as an executor thereof may, either by oral declaration before the court or by writing under his hand, renounce executorship, and shall thereafter be finally precluded from applying for grant of probate of that will.’

(1873) In the Goods of Gill LR 3 P and D 113 (Sir Hannen J)

CASE NO. 222

(Once a renunciation has been made it can only be retracted by a court order, but only if it can be shown that the retraction is for the benefit of the estate, beneficiaries or creditors)

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An executor filed a formal renunciation, but he later sought to retract the same. At the hearing of citation proceedings, it was held that once a renunciation has been made it cannot be retracted except by an order of the court, if the retraction is beneficial to parties interested in the estate. SIR HANNEN J: Unless, on fuller consideration, I should feel that the words of the statute are imperative, I should not hastily decide that this court is powerless to permit an executor who has renounced on good grounds, to retract his renunciation. I do not; decide the point on the present occasion. For even admitting I have the power, it should not exercise it in the circumstances of this case. The only reason given here is that Mr Philpott has changed his mind; it does not appear that it will be for his own profit or for that of any one else that he shall be allowed to retract. He has only given up his rights as executor; he may still propound the will in another character, either as legatee or as guardian to his minor children who are residuary legatees. ***

12.4 MAKING

OF

GRANTS

The procedure for and the provisions governing the obtaining of grants are set out in sections 51, 52 and 67 of the Law of Succession Act and Part VII of the Probate and Administration Rules. The application takes the form of a petition and it is made in prescribed form. Grant will be made to a party who qualifies to be appointed, subject to the applicant satisfying the requirements of procedure and to the discretion of the court in the case of intestacy. Cases numbers 223, 224, 225, 226, 227, 259 and 220 deal

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with the procedural requirements that are to be satisfied before grant is made to the petitioner. Section 51 states as follows: ‘51(1) An application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner. (2) An application shall include information as to (a)

The full names of the deceased;

(b)

The date and place of his death;

(c)

His last known place of residence;

(d)

The relationship (if any) of the applicant to the deceased;

(e)

Whether or not the deceased left a valid will;

(f)

The present addresses of any executors appointed by any such valid will;

(g)

in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;

(h)

A full inventory of all the assets and liabilities of the deceased; and

(i)

Such other matters as may be prescribed.

(3) Where it is alleged in an application that the deceased left a valid will: (a)

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(b)

if it was written, the original will shall be annexed to the application, or if it is alleged to have been lost, or destroyed otherwise than by way of revocation, or if for any other reason the original cannot be produced, then either: (i)

An authenticated copy thereof shall be so annexed; or

(ii)

The names and addresses of all persons alleged to be able to prove its contents shall be stated in the application;

If it was oral, the names and addresses of all alleged witnesses shall be stated in the application.

(4) No admission of any information from an application shall affect the power of the court to entertain the application. 52.

Any person who, in an application for representation, wilfully or recklessly makes a statement, which is false in any material particular, shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment.

67(1) No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for the grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired. (2) A notice under subsection (1) shall be exhibited conspicuously in the court-house, and also published in such other manner as the court directs.

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Kimari and another v Kimari [1988] KLR 587 (Platt JA, Gicheru and Kwach AJJA) (In granting representation the court has discretion under section 66 of the Law of Succession Act.The provisions give preference to widows, but even then that is not final.Where the deceased was a polygamist all his houses ought to be represented)

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CASE NO. 223

The High Court granted letters of administration to the widow of the deceased jointly with her stepson. She and her son appealed against the decision.The Court of Appeal agreed with the High Court and dismissed the appeal. It was pointed out that section 66 of the Law of Succession Act gives the court discretion when it comes to making a grant of letters of representation, and the court takes into account the interests of all parties concerned.The law gives the widow preference, but that is not final. On the facts, the Court of Appeal agreed with the High Court that the senior house had to be represented in the administration, and since the first wife had predeceased the husband it had to be represented by any of the sons in that house.

PLATT JA, GICHERU and KWACH AJJA: The learned judge in our view correctly construed the phraseology of section 66 and its setting in the family of the deceased person. He noted correctly that section 66 gave him a final discretion to decide to whom letters of administration should be ultimately granted. But he also directed himself that the decision would have to be in the best interest of all concerned. He also noted that the section suggested certain preferences, by way of guidance; and set out section 66(a) of the Act. There is no doubt that the purpose of that section was to place the widow in a stronger position than she had enjoyed at customary law. But the preference is not necessarily final. In this case it was found that the widow was a suitable person to undertake the duties of an administrator.That is not now challenged. However section 66(a) also provides that the widow can be appointed in association with or without another beneficiary. The widow had proposed that she should administer the estate in association with her own son, Shem Kihoro. She thus ignored the children of the senior house, their mother Wanjiru having predeceased their father Kimani Gitere. Here the learned judge thought it advisable to consider the family interests of both houses to appoint the eldest son of the senior house in lieu of Shem Kihoro. In doing so, he referred to the position at customary law. That may well be advisable and in principle it certainly avers in this case. Nevertheless the judge made provision for disputes. Now both houses have been represented. But we note that having done so, the learned judge went on to advise himself that he had a final discretion. That we think is correct. The High Court may take into account all the circumstances pertaining to the family in question, and decide in the best interest of the whole family on the law and what is practicable.

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Musa v Musa [2002] 1 EA 182 (Ringera J) (The letter from the chief is not a requirement under the Act, the requirement of sureties is not mandatory and the omission of some properties from the list of assets - is not fatal to an application for grant. The requirement under section 58, that is in the case of estates where some of the survivors are minors, the grant be made to more than one person is mandatory)

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CASE NO. 224

The application for revocation of grant was founded on the alleged defects. Some of the alleged defects were that a letter from the chief was not presented with the application, only one surety was availed (instead of two), the petition did not disclose all the assets, and that the petitioner did not seek the consent of other persons who were equally entitled to apply for grant. The court found that the letter from the chief is not a requirement under the Act, that the requirement for sureties is not mandatory and even then there is no requirement that the sureties must be two, and that the omission of information on the some of the assets does not affect the power of the court to deal with the matter. The court, however, found that since there were minor survivors of the deceased, and therefore there was a continuing trust, section 58 of the Law of Succession Act, must be complied with, and the grant had to be made to more than one person. Since it was not complied with, and the grant had been made to one person, the process of obtaining the grant was flawed and the grant was revoked.

RINGERA J: The defects in the proceedings to obtain the grant which are set out on the face of the application have not been substantiated. The letter from the chief was not an essential aspect of the proceedings as the same is not required by either the Act or the Probate and Administration Rules. Any error or omission in it cannot therefore be a defect in the substance of the proceedings…As regards the production of sureties, there is no requirement in the Act or the rules that an applicant for grant of letters of administration to the estate of a deceased who died intestate must be accompanied by more than one surety. What is provided for is that the court may as a condition for the grant of letters of administration for reasons to be recorded require one or more sureties to guarantee that they will make good within any limit imposed by the court any loss which any person interested in the administration of the estate of the deceased may suffer in consequence of a breach by the administrator of his duties as such: (see rule 29(3) of the Probate and Administration Rules). It is not therefore a mandatory requirement that the application for grant be accompanied by guarantees of two or more sureties. Be that as it may be, the application for grant herein was accompanied by one form of surety duly executed.There was therefore no defect in the proceedings

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on account of want of more than one surety as claimed. As regards the petitioner’s want of consent from the other persons interested in the estate, it may be stated straight away that as the widow of the deceased, she had priority in petitioning for the grant by virtue of section 66 of the Law of Succession Act and she did not require the consent of any other person under rule 7(7) (b) of the Probate and Administration Rules as no other person was entitled to apply for the grant in priority to her. Accordingly the omission to obtain the consent of any other beneficiary to the estate of the deceased was not a defect of substance or, indeed, even form. Is there any other defect in the proceedings which is disclosed? In paragraph 15 of the supporting affidavit, it is deponed that some children of the deceased have not attained the age of majority and the grant issued to Hadija Nanyama Musa offends the provisions of section 58 of the Law of Succession Act. The replying affidavit does not controvert that disposition. Indeed in her affidavit in support of the application for issue of the grant filed in the Resident Magistrate Court, the petitioner in paragraph 3 thereof expressly depones that other beneficiaries of the deceased are minors. In those circumstances section 58 of the Law of Succession Act is pertinent. It provides: ‘58(1) where a continuing trust arises: (a)

no grant of letters of administration in respect of an intestate estate shall be made to one person alone except where that person is the Public Trustee or a trust corporation.’

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Now, where some of the beneficiaries of the estate are minors a continuing trust arises. It therefore follows that the grant cannot be made to one person. as minors were involved in the proceedings in question it follows that the grant of letters of administration could not be made to the petitioner alone. As it was so made, the proceedings to obtain the grant were defective in substance. As regards the ground that the grant was obtained in consequence of untrue allegations of fact essential in point of law to justify the grant, the applicant relies on the fact that not all beneficiaries of the estate were disclosed and not all the properties forming part of the estate were disclosed by the petitioner. Both allegations of fact are disputed by the petitioner. The petitioner points out that in Form P and A 5 in support of her application for grant she disclosed all the beneficiaries of the estate who are specified in paragraph 5 of the applicant’s affidavit. As regards non-disclosure of properties, the petitioner contends that she disclosed all the properties known to her. She contends that the property known as Ndivisi/Muchi/2576 which is one of those allegedly not disclosed, was and still is in her own name and it was not part of the estate of the deceased. The applicant has not disproved this contention. It is further pointed out that the plot purchased from one Wilson Wanambisi but not yet transferred to the deceased by the time of his death could not be part of his estate. At best the administrator of the estate could sue or otherwise ensure that the same was brought into the estate of the deceased before distribution thereof. It is also pointed out that the property known as Ndivisi/Khalamuli/2166 which is also alleged not to have been disclosed was actually disclosed in Form P and A 5 in the proceedings impugned. All in all the alleged factual untruths do not exist. But even if I had been satisfied that some beneficiaries and some properties were not included in the application for grant, I would have taken the view that the non-inclusion of them would not have been fatal to the grant of the letters of administration. Indeed section 51(4) of the Law of

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Succession Act is clear that no omission of any information from an application shall affect the power of the court to entertain the application. In my opinion, the noninclusion may have formed good grounds to object to the proposed distribution of the estate during proceedings to confirm the grant but it is not a ground for annulling a grant which is otherwise properly given. … In the result, the order of this court is that the grant made to the petitioner in Webuye Succession Cause number 13 of 1999 be revoked on one and only ground, only, namely, that the proceedings to obtain the same were defective in substance in that the grant was made to the applicant alone contrary to law as continuing trusts did arise from the fact that some of the beneficiaries of the deceased were minors. I further order that the costs of this application be in the succession cause. Florence Okutu Nandwa and another v John Atemba Kojwa Kisumu Court of Appeal civil appeal number 306 of 1998 (Kwach, Shah and O’Kubasu JJA) CASE NO. 225

(A grant should only be made to persons who have applied for it, and therefore the court should not proceed in gratis to issue the grant to persons who have not sought it). (Facts are set out in the judgement).

KWACH, SHAH and O’KUBASU JJA: John Atemba Kojwa (the respondent) applied for a grant of letters of administration of the estate of Francis Kamlois Nandwa (the deceased) who died intestate on 4 July 1989.

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In his affidavit in support of the application for grant, the respondent stated that the deceased died intestate and he was survived his brother namely the respondent. The only asset left by the deceased was a parcel of land Marama/Shinamwenyuli/289. Letters of administration were issued to the respondent on 27 June 1984. The respondent concealed or did not disclose to the court that the deceased was survived by two widows namely Florence Okutu and Ruth Atemba and two children. When the widows discovered what had happened they applied to the superior court for revocation of grant made to the respondent on grounds of fraud. This application was heard and granted by Tanui J on 7 May 1998 in the absence of the respondent. The respondent then made an application to the court for the setting aside of the revocation order and for the hearing of the widows application inter partes. The application by the respondent was heard by Tanui J who not only set aside the order of revocation of the grant but he also proceeded in gratis to issue a grant to the respondent jointly with Ruth Atemba. No such order had been asked for either by the respondent or the widows. And it is against this that this appeal has been brought. …In the result we allow this appeal, set aside the ruling and order of Tanui J dated 16September 1998 and substitute therefore an order directing that the widows’ application for revocation of grant filed in court on 11 July 1997 be heard afresh by a judge other than Tanui J.

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In the Matter of the Estate of Gichia Kabiti (deceased) Nairobi High Court succession cause number 2559 of 2002 (Koome J) (A person claiming to be a creditor does not have prior right or entitlement to administration of an intestate’s estate over the surviving members of the family of the intestate) CASE NO. 226

This was an application for revocation of grant by a person who claimed that his father had purchased land from the deceased, and that the administrators, the sons of the deceased, had not factored the purchase in the administration of the estate. He sought to have the grant to the sons revoked so that he could be appointed an administrator alongside the sons.The court found that as per section 66 of the Law of Succession Act, the applicant did not have priority to apply for the grant over the sons, and his application for revocation was rejected.

KOOME J: … The gist of the matters deposed in the affidavit can be summarized as follows: That the applicant’s father was a beneficiary of the estate of the deceased person by virtue of being a purchaser of 0.93 acres of parcel Number CHANIA/KAIRI/228. That the sale took place in 1963 and his father has been in possession of the land and has developed it with coffee trees. That the administrators have subdivided the deceased’s land thereby leaving out the applicant’s father. The applicant therefore contends that he is entitled to be appointed as an administrator alongside the deceased sons.

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The objectors filed a notice of preliminary objection dated 21st October and raised the following issues: The applicant has no locus standing in this matter his father is still alive and therefore he is a total stranger. Secondly and most importantly the applicant’s claim is that of a creditor who purchased land and if there is a breach of a contract entered to with the deceased the applicants remedy lies in filing an application under order 36 of the Civil Procedure Rules, which rules are clearly adopted under the Law of Succession Act but not in filing an objection. I have carefully considered the application and the submissions by both counsel for both parties, and also the provisions of the law. The persons who have priority in law to apply for a grant of representation59 are provided for under section 66 of Chapter 160 and so is the order of preference.

59

This should be letters of administration.The law on the making of grants of probate and letters of administration with will annexed is different, and priority in such cases is different from that in simple administration.

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It is the spouse or spouses with or without association with other beneficiaries. Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests. The Public Trustee, Creditors. In view of the above provision the applicant has no priority in being granted the letters of administration.The applicants did not attach any documents to show the sale agreement or even the document appointing him as the attorney of his father, in this respect I find his application incompetent. I agree with counsel for the administrators that his remedy should be found elsewhere but not in the current application for the revocation of the grant. In the Matter of the Estate of Murathe Mwaria (deceased)

Nairobi High Court civil suit number 825 of 2003 (Koome J) CASE NO. 227

(The surviving spouse has priority in applying for and being granted letters of administration). The application for revocation was by a person who was not a beneficiary, but who claimed an interest in trust. It was held that the grant holder had priority in applying for and the grant being made to her.

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KOOME J: I am not aware whether the applicant has brought these proceedings in his capacity as the personal representative of his father’s estate. However may that as it may, the applicant’s claim is based on trust and I agree with counsel for the respondent that the matter is outside the purview of the Law of Succession Act in a probate and administration matter. Chapter 160 section 76 clearly stipulates the grounds upon which a grant may be revoked and if I may summarise: 1.

it is when the procedure followed in obtaining the grant is defective in substance

2.

when the grant is obtained fraudulently by making a false statement

3.

making an untrue allegation of fact essential in point of law to justify the grant

4.

or when the person who has the grant has failed to proceed diligently with the administration of the estate.

I find the grant was properly applied for by the deceased’s widow who had priority under section 35 of Chapter 160, the children who are beneficiary interested duly consented. The applicant not being a beneficiary and not having priority to the grant was not entitled to be notified. Accordingly the application by the applicant is misconceived. ***

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OF

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GRANTS

The Law of Succession Act requires that the grant of representation be confirmed before the distribution of the estate. Confirmation of grants is governed by sections 55, 71, 72 and 73 of the Act. Section 55 states: 55.

No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets of a net estate, or to make any division of property, unless and until the grant has been confirmed as provided by section 71.’

Section 71 provides that‘71(1) After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.

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(2) The court to which an application is made, or to which any dispute in respect thereof is referred, may(a)

If it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or

(b)

if it is not satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 inclusive, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; or

(c)

order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; or

(d)

Postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case; Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled ; and when confirmed the grant shall specify all such persons and their respective shares.

(3) The court may, on the application of the holder of a grant of representation, direct that the grant be confirmed before the expiration of six months from the date of the grant if it is satisfied-

72.

(a)

That there is no dependant, as defined by section 29, of the deceased; and

(b)

That it would be expedient in all the circumstances of the case so to direct.

No grant of representation shall be confirmed until the court(a)

Is satisfied that no application under Part III is pending; and

(b)

...

(c)

...

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The court shall, within one year from the date of any grant of representation, give notice to the holder of the grant to apply for confirmation thereof.’

Cases numbers 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238 and 263 define the concept of confirmation of grant, and set out the procedural requirements for applying for the same. In the Matter of the Estate of the late Chepsiror Metit Eldoret Probate and Administration cause number 7 of 1987 (Dulu J) CASE NO. 228

(The application for confirmation of grant must contain a proposed mode of distribution of the estate) A review was sought of a certificate of confirmed grant which was issued on the strength of an application for confirmation which did not have a proposed division of the property. The court held that the entire process of confirmation was a nullity, and there was no basis for rectifying the certificate.

DULU J: On the submissions and typed record of proceedings I find that on 8 February, 1988 Aganyanya J confirmed the grant of letters of administration without having the list of beneficiaries and their entitlements as required under section 71 of the Law of Succession Act. The legal requirement as per the provisions of the Act is mandatory. That was an error on the part of the court and the confirmation of the grant of letters of administration was technically not a confirmation. The certificate issued by the Deputy Registrar following that defective grant is therefore void, as the legal basis for the issuance of that certificate does not exist. That certificate cannot be rectified or corrected, as it is not a certificate of confirmation of grant of letters of administration.

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In the Matter of the Estate of Kihagi Wamai (deceased) Nyeri High Court succession cause number 266 of 1995 (Okwengu J)

CASE NO. 229

(Confirmation of grant can only be sought by and made to the holder of a grant of representation). The applicant sought confirmation of a grant of temporary letters of administration that had not been made to him, but to his stepbrother. It was held that the said application was incompetent as an application for confirmation should be made by the person to whom the grant of letters was issued.

OKWENGU J: Section 71 of the Law of Succession Act as read with rule 40 of the Probate and Administration Rules provide for the holder of a temporary grant to apply for confirmation of the grant. There is no provision for any other person to apply for confirmation of the grant to the holder. Indeed in his affidavit in support of the summons for confirmation of the grant the objector misled the court that he was

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the administrator of the estate and that the grant was issued to him on 6th July 1998 a fact which was obviously untrue. The application for confirmation of the grant filed by the objector was therefore incompetent and is accordingly struck off. In the Matter of the Estate of Kahuri Kimani – (Deceased) Nairobi High Court succession cause number 358 of 1996 (Rawal J) (Where the parties are not agreed on distribution the dispute should go for full hearing on the question.) CASE NO. 230

In these confirmation proceedings the two houses of the deceased were not agreed on the mode of distribution, and the dispute on distribution fell for hearing and determination.The court took evidence from both sides, and eventually concluded that there were two properties available for sharing between the two houses. Thereafter the court directed the parties to file a fresh application for confirmation of the letters of administration.60

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RAWAL J: The objectors are children of the first wife which shall be referred to as House A and the original petitioner who is the second wife and her children shall be referred to as House B in this ruling. House B has six children and House A has four children out of which three survived the deceased. It is also not in dispute that the 1st wife died long ago leaving four children and the second wife entered after her death. According to her, she looked after her stepchildren which averment was denied by the three sons who deponed before me, according to them she was not interested in them and their eldest brother now deceased looked after them and also cooked for them. I am mentioning this evidence because the second wife refuses to share a parcel of land at Subukia/White Rock (admeasuring 3 acres) on the basis that she looked after the stepchildren and that they should not have any share in that parcel with House A even though it is agreed that the land was registered in the name of the deceased. Similarly she refuses to share the parcel of land bearing Limuru/Bibirioni/60 with House A on the ground that the deceased during his lifetime gave House A a piece of land known as Githunguri/Gathega/134. Its title was not produced before the court but the copies of green card and transfer form showed that the property was registered in the name of the deceased and he transferred the same to KTDA in February, 1965 for KShs 8 000. A legal officer from KTDA also gave evidence and confirmed and explained the above facts. A suggestion that the transfer was made after a loan in the name of the eldest son of House A was not accepted by House A and was not proved by House B. 60

This approach, with respect, only serves to unnecessarily prolong confirmation proceedings. The court had before it a proper confirmation application. There was no agreement on distribution as the parties presented conflicting proposals. The court should have adjudicated on the proposals before it and made a final order on the distribution of the estate.There is no guarantee that upon filing the fresh application for confirmation they would agree on the distribution, if they fail to come again the court will be invited once again to adjudicate on distribution.

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I have to conclude therefore that the averment that House A was settled in lifetime of the deceased is not proved as required and is thus rejected. The origin of the Limuru plot (which is the only one disclosed by the petitioner – House B) goes back to the year 1974.The deceased, as per letter of DC Kiambu dated 8 May 1984 (P Ex. 6) was allotted 11 acres from a farm known as Kingsford’s Farm in Area ‘C’ Lari. In June 1940 those natives were removed in accordance with section 49(2) of Native Lands Trust Ordinance. Thereafter, according to House A they were settled in the said land at Limuru and all agree that the original area thereof was 11 acres. Four acres were given out to the family of first wife (petitioner) in dowry and now (admeasures 7.1 acres). I am not shown under which title the aforesaid plot is held but it is not disputed that the members of House B and one son from House A namely Joseph Michael Muchemi Kahuri live on that land. The other two sons from House A have acquired their own lands through their personal means and stay in their land. On the other hand 1st wife (the petitioner) has shown that she was allocated the parcel of land Ndeiya/Nguirubi/1224. In absence of any further evidence adduced by the members of House A to show that the said parcel belonged to the deceased, I find that the same is not part of the estate properties.

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The members of House A claim that members of House B cannot inherit the Limuru property on the basis that as per settlement document originally issued, it was for the benefit of the deceased, their mother and three children only. The deceased was their trustee only and has had no right to give out four acres to anyone, and that House B is not entitled to share the same. The land was given to them as a native land and was definitely intended to be held as per the customary law. In 1940, the deceased family comprised of those members only. However I am not shown any customary law to suggest that the additional members of his family are not entitled to inherit the land. Even if I am wrong, I am not shown any title deed acquired by the deceased on that land which has shown their exclusion. As a head of the family he had control over the land and for the purposes of his family, I think he had right to deal with it. In conclusion I find that the deceased left behind two properties to be shared between the two houses, namely (1) Limuru/Bibirioni/60 and (2) Subukia White Rock. ... I therefore direct that a fresh application to confirm the grant of letters of administration be filed with all the required details, as well as proposals for its distribution amongst members of both the houses.

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In the Matter of the Estate of Angeline Anyango Obanda (Deceased) Nairobi High Court succession cause number 2747 of 1997 (Ang’awa J)

CASE NO. 231

(An application for confirmation must conform to the requirements of section 71 and the relevant rules. Succession matters are governed by their own procedure, and the Civil Procedure Act and Rules apply only in such circumstances as may be permitted by the Law of Succession Act and the Probate and Administration Rules) The deceased was survived by his mother and brother, who obtained representation in person. Later a firm of advocates applied for the confirmation of grant, but without placing itself on record in accordance with the relevant provisions of the Probate and Administration Rules. The application for confirmation was premised on section 71 of the Laws of Kenya and section 3A of the Civil Procedure Act, and was not in the format prescribed under the Probate and Administration Rules. The court struck it out as incompetent.

ANG’AWA J: As to the main application on merit, it has been brought under section 71 of Chapter 160 Laws of Kenya and section 3A of the Civil Procedure Act. Under rule 63 of the Probate and Administration rules, section 3A of the Civil Procedure Act is not applicable to the Law of Succession Act. I believe the current section and rules to be used for the confirmation of a grant is section 71, rule 40 of the Probate and Administration rules and if necessary rule 73. The application for confirmation of grant should be in Form 108 and Form 9 of the Probate and Administration Rules where a person has died intestate.

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It should not be way of chamber summons but by way of summons for confirmation of grant (General Form). The content of the application for confirmation of grant must outline the names, ages, addresses and relations to the deceased (see rule 40(3) and (b). The apportionment of each shares (see rule 40(4)). The affidavit in this application is to be in compliance with rule 63 of the probate and administration rules as read with order 18 CPR dealing with or affidavit Order 18, rule 5 CPR reads: Every affidavit shall be drawn in the first person and divided into paragraphs number61 consecutively which shall be confirmed62 as nearby63 as may be as64 to a discreet65 portion of the subject.’

61 62 63 64 65

Should read ‘numbered.’ Should read ‘confined.’ Should read ‘nearly.’ Should not be there. Should read ‘distinct.’

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The application and affidavit before me has been deponed by two administrators in the second persons. Both have jointly deponed and signed one affidavit. I hereby strike out the application as incompetent and defective with no orders... In the Matter of the Estate of Joseph Muchoki Muriuki (deceased) Nyeri High Court succession cause number 396 of 1999 (Khamoni J) (Confirmation of grant refers to the confirmation of the contents of the grant, the appointment of the personal representative and of the proposed distribution of the estate.Where joint administrators are not working together it is unwise to confirm them as administrators, and the best course of action should be to revoke the grant )

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CASE NO. 232

The matter turned on the confirmation of a grant where the joint administrators are not cooperating and working together. The court stated that where the joint administrators are not cooperating or working together it would be unwise to confirm the grant, since upon their being confirmed as administrators they would be to expected move on to distribute assets and complete the administration of the estate. Nothing can be accomplished if they cannot work together, since one of them cannot work alone without the consent of the other. The court counselled that the best course of action in the circumstances would be to apply for the revocation of the grant. The court also pointed out that personal representatives should not be confused with beneficiaries.

KHAMONI J: Confirmation of a grant means confirmation of the contents in the grant so that where a grant contains names of two people as co-personal representatives of the deceased as is the position in the grant before me now in this application; those two people become confirmed as co-personal representatives. Further, confirmation of a grant also includes distribution of the estate of the deceased person involved. But that distribution is a distinct issue and the way it is made should not and cannot be taken to be the appointment of a personal representative. The distribution proposed in paragraph 5 of the affidavit in support in this summons for confirmation of grant does not therefore amount to another appointment of a personal representative. Indeed, those benefiting from the distribution of the estate of a deceased person are given a distinct title as they are referred to as beneficiaries as opposed to personal representatives or administrators or executors. Beneficiaries should not therefore be confused with personal representatives although a personal representative although can also be a beneficiary as it is apparent in this succession cause. Otherwise a personal representative is not necessarily a beneficiary and a beneficiary is not necessarily a personal representative.

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In the instant case therefore, if one of the two personal representatives is not cooperating, to have the administration of the estate of the deceased effected, as Mr Wachira has indicated, it will not be proper to move forward to confirm that grant as doing so will mean both personal representatives remain and will be obliged to act jointly in doing everything under the provisions of Sections 82 and 83 of the Law of Succession Act and anything done by one of them alone without the consent of the other will not be lawful. To move out of such situation therefore is to apply for revocation of the present grant citing section 76(e) of the Law of Succession Act an application which should also be a cross-application for a new grant in the name of the applicant. In the Matter of the Estate of Gachunga Gachamba (Deceased) Nairobi High Court succession cause number 642 of 2000 (Kamau AgJ) (A confirmation application is a mandatory requirement under section 71 of the Law of Succession Act, and any confirmation orders made in the absence of such an application are nullities)

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CASE NO. 233

A grant was ordered confirmed on the basis of findings made on a preliminary objection to an application for revocation of grant. It was held that the said confirmation was a nullity as there was no valid confirmation application before the court to warrant the making of confirmation orders. It was further held that a confirmation application is mandatory requirement under section 71 of the Law of Succession Act, and any confirmation orders made in the absence of a confirmation application are null and void.

KAMAU AJ: There is no valid application on record for confirmation of grant of letters of administration in respect of the estate of the deceased.The confirmation of the said grant vide the orders made on 28 January 1998 following the hearing of the aforesaid preliminary objection is not supported by any known principles of law.The said orders are a nullity and thus void ab initio. An appropriate application should have been filed for confirmation of the said grant as provided under section 71 of the Law of Succession Act and the applicable rules. It is during the hearing of such an application that the aforesaid issues would have been fully canvassed and subsequently adjudicated upon. I hold that an application for confirmation of a grant as provided under section 71 of the Law of Succession Act (Chapter 160) is a mandatory requirement of the law, in the absence of which such confirmed grant is void to the extent of confirmation. I accordingly hereby order that said confirmed grant be and is here by revoked on the singular ground that the procedure adopted in confirming the same was defective in substance. I thus order that this matter be remitted to the said lower court for purposes of inviting the appointed administrators to file the appropriate application for confirmation of grant.

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In the Matter of the Estate of Macharia Ngugi Gaturu (deceased) Nairobi High Court succession cause number 708 of 2000 (Waweru J) (The confirmation of grant where the deceased was a polygamist intestate should take into account the provisions of section 40(1) of the Law of Succession Act)

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CASE NO. 234

The deceased was survived by two houses, the first house being made up of children only, while second house comprised of the widow had her nine children.The grant was made to a son from the first house and to the surviving widow jointly. Confirmation of the grant was made, but the widow was dissatisfied and moved for the cancellation of the certificate of confirmed grant on the grounds that she was not consulted over the confirmation application and that she had been disinherited over some assets, and she wanted the confirmation issue to be reopened. The court allowed some aspects of the application, and ordered that the certificate of confirmation be amended to reflect the orders of the court.

WAWERU J: I have carefully read the affidavits sworn in support of and in opposition to the application. I have also given due consideration to the submissions of the learned counsels appearing. Daniel’s response to the contentions of Priscilla are, first, that the deceased had during his life-time sub-divided his land at South Kinangop into two portions and transferred one portion of four (4) acres to Priscilla. The other portion of 2.2 acres, being land parcel L.R.NYANDARUA/SOUTH KINANGOP/4591, remained in the name of the deceased. Secondly, contended Daniel, this Land, as well as the shares in Njoya Farmers Company Ltd. and the money in the Limuru bank account, were distributed in accordance with the agreement of the deceased’s family, and that it was this agreement that the lower court confirmed when confirming the grant. Priscilla has not disputed that she got some four (4) acres from the deceased inter vivos. Indeed there is annexed to Daniel’s supplementary affidavit sworn on 2 October 2003 a certified copy of the register of L.R. NYANDARU/SOUTH KINANGOP/3360 which shows that it is in her name and further that it was a transfer to her from the deceased, it measures some 1.62 Ha. (4.01 acres). There is also annexed to the affidavit minutes of the deceased’s family meeting of 11 July 1998. These minutes are signed by various persons, including Daniel and Priscilla. But I cannot find in these minutes any mention of the Njoya Farmers Company Ltd. shares. However, there is mention of “SULLMACK SHARES”. If these are the same as the Njoya Farmers Company Ltd shares the agreed provisions in regard to them were as follows. The shares were “handed over to Daniel Ngugi… As the 1st born of the deceased. He was … entitled to:(a)

Represent the family members in Sulmac meetings as a Director.

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(b)

Receive and spend the dividends paid … to the late Macharia.

(c)

… push forward to the High Court matters concerning the transfer of Sulmac shares to Daniel Ngugi

My reading of the above condition is that Daniel was not getting the Sulmac shares absolutely as his own property. The term to “represent the family members in Sulmac meetings as a Director” makes this clear. The shares were to come to him only as a representative of the family. I therefore hold that Priscilla is entitled to make a claim concerning these shares if they are indeed the Njoya Farmers Co. Ltd. shares. In this regard I am mindful of the fact that Priscilla has nine (9) children while the first wife has three (3) children. The provisions of section 40 (1) of the Law of Succession Act, Chapter 160 must therefore be involved. The family agreement with regard to the money in the bank was that the same should be shared equally between Daniel and Isaac Ngugi. Priscilla therefore has no legitimate complaint regarding this money. Likewise, she has no legitimate complaint regarding land parcel L.R. NYANDARUA/SOUTH KINANGOP/4591.This parcel was shared out as agreed by the family.

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In conclusion therefore I will allow the application of Priscilla only in respect to the “SULMAC SHARES” if they are indeed the same as the Njoya Farmers Co. Ltd. shares, in which event the distribution thereof as it appears in the certificate of confirmation of grant is hereby set aside. That issue shall be retrieved and at the conclusion thereof, if the distribution in regard thereto shall be adjudged differently the certificate of confirmation of grant dated 20 December 1999 shall be appropriately amended. It is so orders. Parties shall bear their own costs of this application.

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In the Matter of the Estate of Justus Wangai Muthiru (deceased) Nairobi High Court succession cause number 1949 of 2001 (Waweru J)

CASE NO. 235

(A certificate of confirmation of grant must bear the identities of all persons beneficially entitled and their respective shares. Where the applicant in a revocation application appears to be complaining about distribution no purpose would be served by ordering revocation of the grant, instead the issue of distribution should be re-opened by revoking the certificate of confirmation, but leaving the main grant intact)

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The application for revocation was brought by a daughterin-law of the deceased. Her complaint was that the administrators had in their application for confirmation disinherited her and other beneficiaries by failing to disclose them in the application for confirmation and hence their names did not appear in the certificate of confirmation. The court found that there were deficiencies in the confirmation application and ordered that the certificate of confirmation be cancelled. However the main grant was not revoked. WAWERU J: …It appears to me clear that the administrators have indeed disinherited the applicants and other persons beneficially entitled. This is apparent from the certificate of confirmation of grant which indicates that the Administrators are the only persons beneficially entitled to the estate of the deceased. A certificate of confirmation of grant must bear the identities of all persons beneficially entitled and their respective shares. It matters not that the administrators do indeed intend to give to the applicant and others some shares in the estate as this appears to depend wholly upon the administrators benevolence. Besides, it appears that they also intend to give shares to other persons (some of them their own children) who are otherwise not directly entitled. The dictates of justice therefore demand that the issue of distribution be reopened so that all persons beneficially entitled (including the applicant) may be heard upon that issue.To this end no useful purpose will be served by revocation of the grant in its entirety. I shall therefore order as follows: 1.

The order of confirmation of grant dated 23 October 2002 is hereby set aside and the certificate of confirmation of grant of the same date cancelled.

2.

All transactions involving land parcel LR DAGORETTI/THOGOTO/536 done pursuant to the said certificate of grant are hereby cancelled.

3.

The summons dated 15 August, 2002 for confirmation of grant shall be heard afresh. Before that is done the administrators shall file a supplementary affidavit in which they shall set out their proposals for distribution. The summons together with the supporting and supplementary affidavits shall be served upon the applicant and all other interested persons, and they shall be at liberty to file affidavits in protest.

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4.

For the avoidance of doubt the grant itself issued on 19 October 2001 to the administrators jointly is not revoked and remains in place.

5.

The summons dated 20 February 2003 for revocation of grant is therefore allowed only to the extent indicated above.

Njoroge and another (Deceased), In the Estate of (2003) KLR 73 (Etyang J) (The application for confirmation of grant can only be made by the holders of the grant) CASE NO. 236

The mother and sisters of the deceased applied for a confirmation of a grant previously made to other persons. The mother and sisters argued that as the closest family members of the deceased, they were the most suited persons to administer the estate. The application was dismissed on the grounds that the application for confirmation of grant can only be made by and confirmation can only be made to the persons who have been named in the grant as administrators of the estate.

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ETYANG J: Pursuant to the provisions of section 71 (1) of the Law of Succession Act Chapter 160, the holder/holders of a grant of representation are the ones to apply for confirmation of the same after the expiration of the period of six months or such shorter period as the court may direct on application of such holder of representation. As the applicants are not the holder of the grant of representation, this summons for confirmation of the grant is for rejection. The preliminary objection raised by Mr Nyairo is upheld and the application now before me for confirmation of the grant is dismissed. The applicants, particularly Mary Wamboi Njoroge, Mary Wanjiku Nganga and Clement Kinuthia Njoroge feel very strongly that they are the most suited survivors of the deceased to administer his estate. Mr Clement Kinuthia Njoroge put it bluntly that the property of the deceased should be administered by the children of Susan Wanjiru Njoroge. That the property of a deceased person should remain within the control of his immediate family members is normally the wish of everyone. Unfortunately, not all wishes can be freely granted particularly those wishes, which are subject to the operation of the law. The wishes of the deceased’s brothers and sisters must be given effect only through the operation of the provisions of the Law of Succession Act. The surviving beneficiaries of the deceased who are entitled to shares of his estate are his two adopted children (a) Elizabeth Wanjiru Muhika and Stephen Njoroge Muhika (b). Such of the deceased’s parents, brothers and sisters who were being maintained by him immediately prior to his death. This is provided for under section 29 of the Law of Succession Act/. The duty now lies on the appointed administrators of the deceased’s estate to identify the entire estate and come up with the mode of its distribution. As and when

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they complete that exercise, they may then apply for confirmation of that grant issued to them on 27 July 2000 showing their proposals. In Re the Estate of Lameck Omwoyo (Deceased) [2008] eKLR (Musinga J) (Where some of the survivors are minors, the proposed distribution of the estate of the deceased should be done in such a way as to safeguard the interests of the minors)

CASE NO. 237

The deceased was survived by a widow and two sons. The grant was made to the widow and another person. The proposed distribution of the estate as per the confirmation application envisaged the property being spent on settling debts, completing half done projects, the upkeep of the children of the deceased, satisfying domestic needs and one property was to be transferred to the name of the widow. The court approved all the proposals, except that which would have allowed one real asset to be transferred to the name of the widow.The court directed that the said real property be registered in the joint names of the administrators to be held in trust for the minors.

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MUSINGA J: Section 58 of Law of Succession Act Chapter 160 requires that where a continuing trust arises the grant of letters shall not be made to one person alone except where that person is the Public Trustee or Trust Corporation. The underlying objective of this provision is to safeguard the interests of minor beneficiaries of the estate. The mode of distribution of the deceased’s estate proposed by the administrators herein is not in the best interests of the minors neither is it in strict conformity with the law. Where an intestate leaves behind a spouse and children the surviving spouse is entitled to the personal and household effects of the deceased absolutely and a life interest of the net intestate estate. The spouse holds the property in trust for the children of the deceased.The life interest operates as a safeguard for the children of the deceased in cases where the surviving spouse is likely to waste the estate. In this particular case, I have no objection to utilisation of the deceased’s estate in the manner as proposed by the administrators except with regard to Plot No. 2682. The plot shall be registered in the joint names of the two administrators who shall hold the same in trust for the benefit of the minor beneficiaries, Moses Mogire Omwoyo and Eric Ongau Omwoyo. Upon attainment of the age of majority by the minors, the aforesaid property shall be registered in the joint names of Mary Omwoyo and the two sons of the deceased. The deceased’s spouse shall have life interest of the same.

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Zipporah Onzere v Sammy Mavalah [2008] eKLR (Koome J) (At the confirmation of a grant the court should take into account all the prevailing circumstances)

CASE NO. 238

The deceased was survived by three daughters and a son. The proposed mode of distribution was that the deceased’s only property be registered in the names of all the beneficiaries in equal shares. The son did not consent to this proposed mode of distribution, arguing that he single-handedly paid rates to the local authority and paid off the outstanding loan on the property. He further stated that he was residing on the property after their mother’s death. He wanted these matters to be taken into account by the court while considering the application for the confirmation of the grant.The court held that whereas the Law of Succession Act, by virtue of section 38, envisaged an equal distribution of an estate as between the children, the issues that the son was raising are matters that the court should take into account.

KOOME J: The only issue in this succession cause is the distribution of the deceased’s estate among the deceased’s children. The relevant section of the law is section 38 of the Law of Succession Act which provides as follows:

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‘where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.’

This court cannot exclude any of the children of the deceased. The property of the deceased shall vest upon the four beneficiaries in equal shares. The parties will be at liberty to sell the plot and share the proceeds equally. In the case, Sammy Mavala may opt and will have the first option to buy out his sisters. This will envisage the plot being valued to establish its value. The rental income that the objector has benefited from since he started occupying the premises to the exclusion of the sisters should also be taken into account. The amount of the money paid by the objector towards the National Housing Corporation and the rates to the Municipal Council of Nakuru should also be taken into account. The net proceeds should be shared among the beneficiaries equally. The letters of administration may be confirmed accordingly. ***

12.6 RECTIFICATION

OF

GRANTS

A grant once made can be rectified by the court to correct errors. The provisions governing rectification of grants are to be found in sections 74 and 75 of the Law of Succession Act. Section 74 reads:

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‘Errors in names and descriptions, or in setting out the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.’

Section 75 provides that: ‘If, after the grant of letters of administration with the will annexed or after confirmation thereof, a codicil is discovered, it may be added to the grant on due proof and identification, and the grant altered and amended accordingly.’

Cases numbers 239 and 240 illustrate the principles governing rectification of grants. Apparently rectification is permissible to correct superficial errors, fundamental errors tending to change the character of the grant cannot be rectified, and instead the grant should be revoked altogether. In the Matter of the Estate of Muniu Karugo (Deceased) Nairobi High Court succession cause number 2668 of 1997 (Koome J) (Rectification only deals with obvious errors; it cannot be used to fundamentally change the character of the grant) CASE NO. 239

The intestate was the father of the two administrators, a brother and sister. Rectification of the confirmed grant was sought by the brother alleging that the confirmation introduced the name of a third beneficiary who was not entitled to a share in the estate. The court dismissed the application on the grounds that rectification seeks to deal with obvious errors, and it cannot be used to fundamentally alter the mode of distribution of the estate.

KOOME J: According to section 74 of the Law of Succession Act the court can rectify the following errors: Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

‘Errors in names and descriptions or in setting out the time and place of the deceased death.’

In my humble view, the errors to be rectified should be obvious and if there is contest as regards the mode of distribution that is a substantive issue that is not dealt on an application for rectification. The grant was confirmed pursuant to an inquiry of the competing interests and the applicant is the co-administrator who has been in the picture all through. Accordingly, I agree with counsel for Kezzy Wanjiru Muniu that the confirmed grant cannot be rectified as the confirmation was not a misdescription but a deliberate order made after parties provide material evidence on how the property should be distributed.

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Kamau v Kirima [2002] 2 KLR 172 (Khamoni J)

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(Where a confirmed beneficiary dies, the right procedure to replace him as a beneficiary, is not by the rectification of the grant, but by first obtaining a grant of representation to his estate and thereafter seek rectification of the confirmed grant in the first estate to replace the original beneficiary with the administrator of his estate) The suit before court was between persons who claimed entitlement to some portion of land. The plaintiff was the nephew of the original owner of the land. After the death of the original owner, the plaintiff ’s father obtained representation to the estate of the deceased, and out of the property measuring 8 acres gave himself three acres and gave the balance to the defendant, the widow of the deceased original owner of the property. His application for confirmation was allowed.The defendant then moved the court for the revocation of the grant CASE NO. 240 as she was not satisfied with the mode of distribution adopted by the administrator. The plaintiff ’s father then moved to court to ask that the court do sign the transfer papers since the defendant had refused to cooperate. He died before his application could be heard. His son, the plaintiff, sought to bury him on the disputed three acres; he was resisted by the defendant. He then filed suit, saying that the land belonged to his father, and consequently the father ought to be buried on the land. The suit was dismissed as incompetent. It was held that the plaintiff had no capacity to sue, since he had not yet legally acceded to his late father’s interest in the disputed land. It was ruled that he could only do that by first obtaining representation to his father’s estate, and after confirmation of that grant, ask the administrator of the estate of the original owner of the land, the estate of the defendant’s husband, to seek rectification of the grant so that the plaintiff, as the administrator of his father’s estate, could replace his father as a beneficiary of the three acres in the estate of the defendant’s husband. KHAMONI J: In this matter...the plaintiff is trying to put the cart before the horse. trying to get ownership of the disputed three acres of land decided in his favour under the guise of granting his God given right to bury his deceased father who has died leaving the same dispute over the same three acres of land pending between him and the defendant, in this court’s Succession Cause number 190 of 1995. Properly, therefore, and in accordance with the provisions of section 82 of the Law of Succession Act which is mandatory and relevant for the plaintiff to observe, the

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plaintiff should start by going into Succession Cause number 190 of 1995 as a personal representative of his deceased father Kamau Njoroge as there is no other way lawfully open to the plaintiff. It is the Law of Succession Act to govern inheritance of the three acre portion and the plaintiff will, therefore, get nowhere by trying to run away from the provisions of the Law of Succession Act. Section 82 gives no room for persons other than the deceased’s personal representative. It gives powers to personal representatives and section 83 of the Act spells out the duties of personal representatives. According to the interpretation in section 3(1) of the Law of Succession Act, the term ‘personal representative’ means the executor or administrator of a deceased person. Section 82 of the Law of Succession Act therefore states as follows: ‘Personal representative shall, subject only to any limitation imposed by their grant, have the following powers: (a)

To enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arise out of his death for his estate;

(b)

To sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:

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Provided that: (i)

The purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased;

(ii)

No immovable property shall be sold before confirmation of the grant; (a)

To assent, at any time after confirmation of the grant to the vesting of a specific legacy in the legatee thereof;

(b)

To appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or...’

The plaintiff ’s deceased father Kamau Njoroge having left this court’s Succession Number 190 of 1995 surviving him, the relevant part of section 82 is paragraph (a): ‘to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arise out of his death for his estate.’

According to the of proceedings in Succession Cause Number 190 of 1995, not only was Kamau Njoroge an administrator but was also a beneficiary of the estate of his pre-deceased brother Kirima Kambora. That is the position in which Kamau Njoroge was when he died. He was the administrator of the entire estate and beneficiary from three acres in that estate which comprised of only one parcel of land Loc 1/ Chomo/58. He had not succeeded in completing the administration by sub-dividing that parcel of land and transferring five acres to Esther Nyambura Kirima and the remaining three acres to himself and by having the transfers registered under the provisions of the Registered Land Act. It is the registration of the two transfers under the provisions of the Registered Land Act that would have conferred the legal title in the five acres to Esther Nyambura Kirima and the legal title in the three acres to

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Kamau Njoroge thereby bringing the process of administering the estate to the final end at which land title deeds could subsequently be issued to registered proprietors under the Registered Land Act. Although the parties have not specifically said it, I am mentioning the Registered Land Act because the registration particulars given in pleadings in this matter suggest that parcel of land Loc 1/Chomo/58 is registered under the Registered Land Act. Kamau Njoroge did not succeed in reaching the final end partly because he appears to have been slow after he obtained the certificate of confirmation of grant partly because Esther Nyambura Kirima was opposed to the issuance of that grant to Kamau Njoroge and opposed the distribution of her husband’s estate in the way Kamau Njoroge had done it. She filed her summons for revocation at the stage of the issuance of a certificate of confirmation of grant as the administrator could not move further in the administration of Kirima Kambora’s estate. As I said in this court’s Succession Cause Number 1086 of 1995, In the Matter of the Estate of Ndungu Kariuki (unreported); a certificate of confirmation of grant confers upon a beneficiary under it a beneficial interest. I stated: ‘as a certificate of confirmation of grant, also referred to as a certificate of confirmation, confers upon a beneficiary under it a beneficial interest in the estate of the deceased person, where such a beneficiary subsequently dies before the executor or administrator of the estate for which the certificate of confirmation was issued transfers the resultant legal interest or title to the aforesaid beneficiary, it is not proper and lawful to proceed under rectification of that certificate of confirmation to replace the deceased beneficiary with a person other than a confirmed executor or administrator of the estate of the deceased beneficiary.’

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I should add that that is the legal effect of sections 79, 82 and 83 of the Law of Succession Act, section 79 provides that property of a deceased person vests in his personal representative. Section 82 sets out powers of a personal representative while section 83 sets out duties of a personal representative. As stated earlier, a personal representative means the executor or administrator of the estate of a deceased person. To get to be a confirmed executor or administrator of the estate of a deceased beneficiary, the proper procedure would be for the person aspiring to replace the deceased beneficiary to start the ball rolling in separate proceedings being a petition for the grant of probate or letters of administration in the estate of the deceased beneficiary. The aspirant will start those proceedings either as a petitioner as well as a beneficiary or as a purely beneficiary influencing others interested to have the petition filed. After the confirmation of the grant, it is the executor or administrator of the estate of the deceased beneficiary also referred to as the second deceased., whether or not that executor or administrator is also a beneficiary, who should approach and ask the executor or administrator of the estate of the first deceased person, also referred to as the pre-deceased, to apply for rectification of the certificate of confirmation of grant in the state of the predeceased person so that the executor or administrator of the estate of the deceased beneficiary (the second deceased) replaces the deceased beneficiary (the second deceased). It is after such rectification has taken place that the executor or administrator of the estate of the deceased person (the predeceased) will, as trustee, properly and

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lawfully transfer the resultant legal interest or title to the executor or administrator of the estate of the deceased beneficiary the second deceased) to enable the latter executor or administrator, also a trustee, transfer the same legal interest or title to the entitled or aspiring beneficiary who started the ball rolling in the estate of the deceased beneficiary (the second deceased). From my above analysis of the legal position and the required procedure, therefore, for the applicant /plaintiff to properly start litigation against the respondent/defendant in this matter, he should first instigate court succession proceedings for the estate of his deceased father Kamau Njoroge – so that the administrator of Kamau Njoroge’s estate is known. That administrator may turn out to be somebody else. But whoever may be the administrator of the estate, that is the person who will have the locus standi to go into this court’s Succession Cause No. 190 of 1995 to litigate, on behalf of the estate of Kamau Njoroge, against Esther Nyambura Kirima. If Esther Nyambura Kirima were not opposed to what Kamau Njoroge had done and had not therefore filed her summons dated 6 November 2000 for revocation of grant in Succession Cause No. 190 of 1995, the administrator of the estate of Kamau Njoroge would have simply applied, in that succession cause, to replace the deceased Kamau Njoroge, not only as the administrator of the whole estate of Kamau Kambora, but also as the administrator beneficiary of the portion of three acres which Kamau Njoroge had shared to himself from that estate of Kirima Kambora.

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After that replacement, the administrator of the estate of Kamau Njoroge would have also become the administrator of the estate of Kirima Kambora and would have, therefore, proceeded to complete the administration of the estate of Kirima Kambora by effecting the subdivision of parcel of land No. Loc 1/Chomo/58 into three acres and five acres and transfer and register the portion of the three acres in his name as administrator of the estate of Kamau Njoroge and transfer and register the portion of five acres in the name of Esther Nyambura Kirima as a widow beneficiary in the estate of Kirima Kambora. Thereafter, that person, if not the applicant/plaintiff now before me, and as the administrator of the estate of Kamau Njoroge, would have gone further, back in the succession cause relating to the estate of Kamau Njoroge, to transfer the three acres from the estate of Kirima Kambora to the applicant/plaintiff and would have had it registered in of the applicant’s name in the case the applicant/plaintiff would have been assigned successorship to those three acres during the distribution of assets in the estate of Kamau Njoroge. That is some distance to reach the end and since Esther Nyambura Kirima has filed a summons for revocation of the grant issued to Kamau Njoroge in Succession Cause Number 190 of 1995, that end for Kambora Kamau may never come true.

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CHAPTER 13 CONTENTIOUS PROBATE 13.1 INTRODUCTION Contentious probate refers to the situation where succession proceedings turn into a full fledged dispute requiring the intervention of the court.

13.2

OBJECTIONS

TO THE

MAKING

OF

GRANT

It is a requirement in the process of obtaining grant that a notice be published inviting objections.The relevant law is sections 67, 68, 69 and 70 of the Law of Succession Act. The Act does not set out the grounds upon which an objection could be premised, but they centre fundamentally on the right to administration, suitability of the petitioner, whether or not the deceased died testate or intestate, and where the petition is founded on a will, the invalidity of the will.. Cases numbers 57, 58, 162, 165, 241, 242, 243, 244, 245, 246, 247, 248 and 330 show how the Kenyan courts have handled objections to grant being made, and the various reasons that objectors advance in opposition to the application to the petitioner for grant. Section 67 provides:

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‘67(1) No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for the grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired. (2) A notice under subsection (1) shall be exhibited conspicuously in the court-house, and also published in such other manner as the court directs.’

Section 68 states: ‘68(1) Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by the notice, or such longer period as the court may allow. (2) Where notice of objection has been lodged under subsection (1), the court shall give notice to the objector to file an answer to the application and a cross-application within a specified period.’

Section 69 reads as follows‘69(1) Where a notice of objection has been lodged under subsection 68, but no answer or cross-application has been filed as required under subsection (2) of that section, a grant may be made in accordance with the original application. (2) Where an answer and a cross-application have been filed under subsection (2) of section 68, the court shall proceed to determine the dispute.’

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Section 70 says that: ‘Whether or not there is a dispute as to the grant, a court may, before making a grant of representation(a)

Examine any applicant on oath or affirmation; or

(b)

Call for further evidence as to the due execution or contents of the will or some other will, the making of an oral will, the rights of dependants and of persons claiming interests on intestacy, or any other matter which appears to require further investigation before a grant is made; or

(c)

Issue a special citation to any person to object to the application.’

In the Matter of the Estate of John G. Kinyanjui (deceased) Nairobi High Court Probate and Administration 317 of 1984 (Butler-Sloss J)

CASE NO. 241

(Where parties base their objection on the allegation that the objector has a right to administration founded on a presumed marriage, they have to establish that allegation by way of evidence. Cohabitation could be evidence from which it may be presumed that parties to the cohabitation did marry, but cohabitation alone is not enough to presume marriage).

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The objection to grant being made to the petitioner was brought by a woman claiming to be a wife of the deceased, and who was asking the court to presume that she was such a wife and therefore entitled also to the grant. She led evidence to show that she cohabited with the deceased.The court found that cohabitation without anything else was not enough material from which the court could presume marriage, it’s merely part of the evidence that the court should consider before making such a presumption. BUTLER-SLOSS J: At the outset of the hearing, and before the objector was called to give evidence, Mr Masese, advocate for the applicant, stated the question in issue to be whether or not the objector was married to the deceased. He agreed that if the court held the objector to have been married to the deceased then the applicants would not object to her joining them in the administration of the estate. Mr Kamau Kuria, who then appeared for the objector, conceded that the applicant, Elizabeth Mumbi was a widow of the deceased and that the Joint applicant George Kinyanjui Gathere was a son of the deceased. In evidence, the applicant said that she married the deceased in 1958, and on that point her evidence was not challenged. The marriage was assumed to be a marriage by Kikuyu Customary Law’ In the first paragraph of his written submissions, headed ‘The Law,’ Mr Murungi states that it is not the objector’s case that she, the objector, was married to the deceased under Kikuyu Customary Law. This is an important departure by the objector from the terms of her Notice of objection which have already been quoted, and may be quoted again;-

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‘The objector herein is a lawful wife of the deceased having been married under Kikuyu Customary Law.’

This departure raises the question; - If the objector was not married to the deceased under Kikuyu Customary Law, then what law requires the Court to recognise her relationship with the deceased as a marriage? The answer is to be found in the same paragraph where Mr Murungi says ‘The objector’s case is that in view of her long association with the deceased this court should presume that she was married to the deceased, and she should be declared a widow of the deceased for the purposes of the administration of his estate.’

In support of this contention, Mr Murungi cites the leading case of Mary Njoki v John Kinyanju Mutheru CA Number 71 of 1984, and, in particular, certain passages in the dissenting judgement delivered in that case by Madan JA, as he then wads,. The appellant in that case, Mary Njoki, like the objector in the present case, did not claim to have undergone any ceremony of marriage. Nevertheless she was saying to the court that a presumption of marriage arose, from long co-habitation and repute, that she was the deceased’s wife, sometime referred to as ‘common law wife’ (page 2 line 15). At page 9 line 18, the Learned Judge of Appeal refers to the concept of presumption of marriage which, he says, is not new in Kenya. At line 25 he quotes Wambuzi as saying ‘the presumption has nothing to do with the law of marriage as such, whether this is ecclesiastical, statutory or customary. The presumption is nothing more than an assumption that the parties must be married irrespective of the nature of the marriage actually contracted, I would add also irrespective of marriage if one is not actually contracted.’

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In this, I understand the learned Judge of Appeal to be saying that even where there is clearly no marriage, the Court can and should construct a marriage and that there are advantages in doing so. Such a power is, however, impliedly disclaimed by Kneller JA at page 8 line 24 where the learned Judge of Appeal, after reviewing the authorities, says ‘The authorities do not, to my understanding of them, go so far as to say that cohabitation and repute constitute a marriage.They can be part of a mode of proving one in that they are substituted for some missing element or elements.’

At page 11 line 25, and following on to page 12, Kneller JA lists seven forms of marriage that are available in this country. He concludes, on page 12, with the words ‘These are, I apprehend, enough for all the peoples of this country.’

The learned judge of appeal does not include in his list a marriage that is to be presumed from the fact of cohabitation, a constructive marriage, a marriage by judicial decree or a so-called ‘common law’ marriage. Following, in the present case, the majority judgements delivered in the Mary Njoki’s case, I hold that co-habitation can be evidence from which it may be presumed that the parties to the co-habitation did marry. I further hold that co-habitation is not, in itself, tantamount to marriage, and believe that the two should not be confused since marriage entails clear legal obligations and co-habitation does not. In the present case, I find that there has been, to some degree, co-habitation between the deceased and the objector. I am unable to presume from that co-

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habitation that there was a marriage between the deceased and the objector since the objector, who asks me to make that presumption; herself avers that there was no marriage between the deceased and herself. It follows that the basic question in this case as to whether or not the Objector was a wife of the deceased, must be answered in the negative. The objection fails and is accordingly dismissed. The applicants may proceed with their application for letters of administration in the normal way. As to costs, I order that the applicant’s costs be costs in the administration i.e. they will be payable out of the estate. I make no order for costs against the objector since I consider that the deceased, by his long association with the objector, helped to create the dispute that has had to be resolved through this litigation. Muigai v Muigai and another66 [1995-1998] EA 206 (Amin J) (By virtue of section 3(5) of the Law of Succession Act, a man is not barred by section 37 of the Marriage Act from contracting subsequent marriages, and any such wives married in spite of section 37 of the Marriage Act would be regarded as wives for the purpose of succession)

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CASE NO. 242

On the death of the deceased, his statutory wife moved the court for letters of administration. Two other women objected to her petition alleging that they were customary law wives of the deceased.The petitioner took the position that the deceased had no capacity to marry them by virtue of section 37 of the Marriage Act. The court held that the two were wives for succession purposes by virtue of section 3(5) of the Law of Succession Act, since in view of section 3(5) section 37 of the Marriage Act did not bar the deceased from contracting other marriages under customary law.The court then proceeded to give directions regarding the division of the estate.

AMIN J: The administration of the estate is to be carried out in conformity with section 3 of the Law of Marriage Act. Section 3(5) of the Law of Succession Act came 66

One key weakness of the ruling in this matter is that the judge did not indicate the nature of the proceedings that he was dealing with. It is not clear whether these were objections to the making of the grant to Dorcas, or whether it was an application for revocation of the grant already made to Dorcas, or they were protests to a proposed confirmation of a grant or they were proceedings for reasonable provision for Agnes and Terry .The weakness is made more acute by the nature of orders that the court finally made regarding the distribution of the estate. Fundamentally, the court did not even state whether the deceased had died testate or intestate. The only available indication of what might have been before the court is to be found in the report – that these were objection proceedings to a grant of letters of administration being made to Dorcas. If then that was the matter, then the court should not have proceeded to address issues that were not before it. The issue was whether Dorcas was entitled to the grant of letters to the exclusion of Agnes and Terry. The issue of the division or distribution of the estate was not before the court, and it was even premature to address it since grant was yet to be made and confirmed. The court also adverted to the issue of dependency, yet this was not before the court as there was no application brought properly under section 26 of the Law of Succession Act.

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into effect in 1981 (Act number 10 of 1981 – Statute Law (Repeals and Miscellaneous Amendment) Act). It provides: ‘Notwithstanding the provisions of any written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another wife for the purpose of this Act and particular sections 29 and 40 thereof, and her children within the meaning of this Act.’

I therefore hold that section 37 of the Act does not bar the two subsequent wives for the purposes of succession. A presumed marriage, it is noted, under Kikuyu custom, also amounts to a system of marriage which permits polygamy. I find little merit in the reasoning of the petitioner’s counsel in respect of administration matters and to bar both of the respondents for the purposes of succession. Both the respondents are dependants under section 29 of the Law of Succession Act. I have already held that the children of both objectors Terry Wacheke and Agnes Wambui are the children of Macharia Muigai, deceased. I answer the issues before me thus67: 1.

Yes.

2.

Yes.

3.

By the Trustees Department, Kenya Commercial Bank Limited Nairobi.

4.

Yes.

5.

Yes.

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The court is aware of the fact that the first wife Mrs Dorcas Muigai has spent most of her life with the deceased and gave birth to five daughters. I cannot also close my eyes to the fact that Terry Muigai the second wife for her said companionship to the deceased and in addition presented him with three children, one being Muigai Junior in whose quest the deceased travelled far and wide. Mrs Agnes Muigai was the late Muigai’s last find but one of which he was extremely fond of. His correspondence to her amply described his tender feelings for her and his wish for a son.The photographs do not lie.These lend further credence to the case of Agnes Wambui. Taking everything into consideration, the court makes the division of the estate in the following manner:

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1.

Dorcas Muigai’s house 50%

2.

Terry Wacheke Muigai’s house 30%

3.

Agnes Wambui Muigai’s house 20%

The five issues framed for determination by the court were:

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In the event of special circumstances and the nature of the litigation, each party to bear its own costs. In the Matter of the Estate of James Mberi Muigai Kenyatta Nairobi High Court succession cause number 2269 of 1998 (Aluoch J) (Where an objection is founded on the allegation that the petitioner was not a widow of the deceased, the objector must adduce strong evidence to support that contention) CASE NO. 243

The objection proceedings were taken out by the mother of the deceased on the basis that the petitioner was not a widow of the deceased. Evidence was taken from the petitioner which failed to prove a customary marriage between the deceased and the petitioner; it also fell short of establishing a cohabitation which could lead to a presumption of marriage between them. The court was however satisfied that the children of the petitioner were children for the purposes of succession.

ALUOCH J: I have considered the oral evidence adduced as well as the submissions. The proceedings which resulted in the protracted litigation were filed by Elizabeth Waweru Mberi jointly with her sister in law. As I stated at the beginning of the summary of evidence, Elizabeth petitioned for a Grant of Letters of Administration Intestate, to the estate of her ‘late husband.’ Under the procedure in the Succession Act, the question which the court is required to answer is simply ‘who should be issued with the grant to the estate of the late James Mberi Muigai Kenyatta?

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To answer that question, I have to consider the evidence pertaining to relationship between Elizabeth and James. According to Elizabeth the evidence which symbolised her ‘marriage’ to James was the ‘ngurario ceremony’ performed in her home along Racecourse Road in Nairobi. That evidence was of course disputed by James’s family because none of them were present at the alleged ceremony. Secondly, to show that she was James’s wife, Elizabeth produced the birth certificates of her 2 children saying that she had the children with James. It is on record that the evidence of the birth certificates or details in the birth registers became quite controversial as the evidence of the 2 officers from the Department of the Civil Registration showed. In short, the records do not tally in both cases. There was also the evidence by way of photographs where Elizabeth’s children appeared with James and certain members of his family and Elizabeth herself. This evidence too was used to show parentage as well as the evidence by way of receipts

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of payment of hospital bills and or doctor’s bills. There were also letters of demand of school fees arrears addressed to the deceased as the ‘father’ of the two children. There was also the evidence by way of a text read at the burial of the deceased termed ‘Eulogy of the Late James Mberi Muigai, Deceased.’ The last paragraph of the eulogy read, ‘Mberi was the proud and caring father of two lovely girls, Wambui and Natasha.’ To this evidence, the deceased mother and brother said that they were not responsible for the preparation of the funeral programme but the ‘larger’ Kenyatta family was. I want to take judicial notice of the fact that in a situation where paternity is disputed the best and most reliable evidence would be a DNA blood test or any such similar tests. In the absence of that, it is very difficult or almost impossible to say that A fathered B or C. James considered such a test but never had it done. In the circumstances, I rule that the evidence on record is not sufficient to make a conclusive finding that the deceased ‘fathered’ Stephanie and Natasha. I cannot therefore rely on that evidence for making a finding that Elizabeth was married to James because James ‘fathered’ her two children. I want to take Judicial Notice of the fact that a man and woman do not have to get married in order to have children. I do not find Elizabeth’s argument convincing that she was James’s wife because the two had children together.

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I have to turn to other pieces of evidence in this cause to find if Elizabeth was married to James. to this extent, I turn to the evidence of the ngurario ceremony. What is disturbing about this evidence was the lack of participation of James’ family in order to make it a truly customary rite. further, there was evidence from Okondo, that Elizabeth had approached him during the pendency of this cause and requested him to come and say that the ceremony did take place. if this evidence is true, then the question to ask is, why did Elizabeth do this? does it mean that the ceremony did not take place and evidence was being adduced in court to make it appear as if the ceremony took place? what is really the truth about this ngurario ceremony? does the court have the best available evidence to enable it to make a decision whether the ceremony took place or not, whether it constituted a Kikuyu customary law marriage between known to her Elizabeth and James Mberi Muigai Kenyatta? When I considered the evidence on record as a whole I came to the conclusion that it falls short of establishing that:1.

Elizabeth was ‘married’ to the deceased James under Kikuyu customary law,

2.

That the 2 children Stephanie and Natasha were ‘fathered’ by the deceased James Mberi and

3.

That though James mother denied any knowledge of these children

part from when she said Elizabeth abandoned them at her door at Kitisuru, there is sufficient evidence on record to show that these children were known to her. I find that she was not honest in her further, from the evidence on record the presence of

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these children in James’s life was known to the ‘larger’ or ‘bigger’ Kenyatta family, that is why the family acknowledged them in the funeral or burial programme, where the family tribute was given by James’s aunt Ms. Margaret Kenyatta, the vote of thanks was given by Ngengi Muigai and the announcements were made by Uhuru Kenyatta, James’s uncle. What about the pictures of James’s grandmother Mama Wahu Kenyatta taken with these children and indeed some of James’s brothers and sisters and their children? There is evidence of the receipts from Cavina school where the children went to. The doctor’s receipts of payment of monies were issued in James’s names. There is evidence that he was not working and was not therefore earning a living, but whatever the case is, he did at times spend money on these children. Whether it was pocket money given to him by his mother or money from the rent of his Kitisuru house or indeed money from Elizabeth that is neither here nor there.What is important to note at this point is that he incurred expenses on behalf of these children. he even paid rent of KShs 30, 000 in Kileleshwa the last house he lived in before he died . Elizabeth lived in that house with him and only moved out after his death when she was not able to pay rent. James’s own brother admitted in his evidence that ‘several times James would be with Elizabeth and the children would be in the car.’ He also described Elizabeth and James as ‘friends.’ There was also evidence of David Wachira Chuani, a good friend of James whose evidence was that he viewed James and Elizabeth as a family and that they had two children Wambui and Natasha ‘Whom James took as his own . They were his main driving force in life and everything he did was towards the betterment of the children for example…’

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I find from the totality of this evidence that these children Stephanie and Natasha were children whom James the deceased ‘had taken into his family as his own, and from the reading of section 29 of the Succession Act, Chapter 160 Laws of Kenya, these children qualify as ‘dependants’ as far as James’s estate is concerned. Otherwise I am unable to find from the evidence on record that Elizabeth is entitled to apply for a Grant of Letters of Administration of James’s estate, on account of her having been James’s ‘wife’ and therefore upon death, Jame’s ‘widow.’ Instead I grant leave to James mother Mary Wamuhu Muigai and her daughter Hannah Wahu Muigai Unaka, to proceed with the petition already filed, being Succession Cause Number 1507 of 1998, and obtain Letters of Administration to the estate of the late James Mberi Muigai Kenyatta. As I have ruled that the 2 children are entitled to inherit from James’s estate, I direct that their claim for dependency be made after the grant applied for by James mother and sister has been issued but not yet CONFIRMED. I am giving these directions in conformity with section 26, 28 and 29 of the Succession Act, Chapter 160 Laws of Kenya.

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Section 27 of the same Act gives the court discretion in making order for a specific share of the estate to be given to the dependants.68 However, in this case, it is not clear what is left in James estate after James’s mother had obtained leave from this court (Etyang J) to sell Jame’s house and 2 farms in Juja to pay debts owed by the estate. this was done during the pendency of this cause. the court can only order specific shares to be given to the dependants when it is known what properties and or monies (if any) is available in the estate. This should be established before such orders are made. Finally, I order that each party to these proceedings pays their own expenses. In the Matter of the Estate of Joseph Mungai Njoroge (deceased) Nakuru High Court succession cause number 250 of 1999 CASE NO. 244

(Rimita J) (Where a woman is divorced she would be entitled to grant a of representation, although she may be allowed some limited access to the estate of the deceased) The facts are set out in the judgement.

RIMITA J: Joseph Mungai Njoroge (whom will refer to hereinafter as the deceased) died on 21 March 1999 aged 56 years. He died intestate. This Petition (Cause Number 250 of 1999) was filed on 19 May 1999. Another Petition was filed by the objector on 21 July 1999 (cause number 364/99). Both the Petitions were consolidated in file Number 250 of 1999 and were heard together.The Petitioner in 365 of 1999 was given leave to object and file her objection out of time.

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The objector testified in support of her case and called one witness. Her case is that she is the deceased’s first wife. She separated briefly with the deceased, but they came back together and she was with the deceased at the time of his death. She had one daughter with the deceased who is now married and lives in Thika. The objector testified that the deceased was married to a second wife Margaret Wambui who had five children with the deceased before she died. She died before her husband the deceased in this case. The impression the objector gave to the court is that she does not recognize the Petitioner as the deceased’s wife. She said that she was never introduced to the Petitioner as the deceased’s wife. She only knew her as the deceased’s driver. It is her case therefore that she should be granted letters of administration to administer the deceased’s estate.

68

It is doubted that this was the correct approach to the issue of dependency.The court can only make a finding on dependency and give orders relating to such matters where there is an application before court brought properly under section 26 of the Act. The court cannot proceed suo moto. There was no application under section 26 before the court, no party had invited the court to address the issue of dependency and the court improperly exercised discretion. Indeed it exercised discretion that it did not have in the first place.

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The petitioner also testified in support of her case. She called two witnesses. She admitted that the objector was the deceased’s wife but the two had divorced when the objector was found to be unfaithful to the deceased.When the petitioner was married to the deceased she found the deceased with the second wife Margaret Wambui. The deceased was too sick and needed care. Margaret Wambui thought it was too much and left for Mombasa. When she came back she was too sick and passed away. The petitioner as left to care for Wambui’s children. She has her own children. According to the petitioner the objector came back after learning that her former husband was too sick and about to die. She told him that she had repented and had become a follower of the Akorino sect. they did not however agree and the quarrel that ensued made the deceased weaker and had to be rushed to hospital. The objector took possession of one of the deceased’s houses and stayed there. She insisted that she be involved in the funeral arrangements and to avoid trouble and delay, she was accommodated. I believe the petitioner’s version of the events. All the parties, deceased’s wives were married under Kikuyu customary law. I find that the objector had been divorced under custom. She came back to her husband and repented. There is no believable evidence that she was accepted back. None of the parties attempted to prove Kikuyu customary law ion the point. But I find that the objector came back to benefit from the deceased’s estate as it was clear that he would not live long. But it is in evidence that the Petitioner and the deceased’s family do not wish to disown the objector and drive her away.They would wish to have her retain the Molo plot she occupied. She is lucky as I would not have found her. She cannot eat her cake and have it. The objector will have plot Number 15 Molo. Hers will be life interest only subject to Section 36 of the Law of Succession Act.The interest will revert to the sons of the deceased.

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The petitioner will administer the deceased’s estate as a trustee of herself and deceased’s children. Letters of administration will issue to the petitioner and may apply for confirmation to put the orders in this judgment into effect. The issue of motor vehicle Registration Number KXX 578 was raised. I am not satisfied that it forms part of the deceased’s estate. The objection otherwise fails. I will order each party to pay its own costs rather than have the same paid from the estate.

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Chelang’a v Juma [2002] 1 KLR 339, (A person may be qualified for appointment as an administrator, but he may not be appointed as such for the court may find him unsuitable for some reason or other).

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CASE NO. 245

The widow of the deceased applied for a grant of letters of administration, jointly with her brother, the brotherin-law of the deceased. Twin objections were then filed in the matter; one by the mother of the deceased and the other by the siblings of the deceased. The mother complained that she was not informed by the petitioners that they were applying for the grant, that the brotherin-law of the deceased was not an heir and therefore he was not entitled to apply and that two children of the deceased, who were dependent on him during his lifetime, had not been listed as heirs. The position of the siblings was that as brothers and sister of the deceased they were heirs under Islamic law and ought to have been notified of the petition and listed as heirs.The objections were combined and dealt with simultaneously with other proceedings; for provision of accounts, revocation of grant and reasonable provision, and therefore not all the issues touching on the objections were addressed in the ruling by the court. On the suitability of the appointment of the deceased’s brother-in-law as a joint administrator with her sister, the deceased’s widow, the court found that he was qualified for appointment as such, but he was not suitable given the objections from the deceased’s extended family.

ETYANG J: In the case of Swaleh, the objectors main objection to the issuance of a grant to him as Zaina’s Co-Administrator of the deceased’s estate is that, as the deceased’s brother-in-law Swaleh is an outsider and does not rank in priority to the deceased’s surviving blood brothers and blood sister. According to Chepkole, it is against the customs and practices of the Kalenjin, and the teachings of Islam, to grant letters of administration to a deceased’s brother-in-law as petitioned in this cause. Zaina has explained the suitability and convenience of issuing a grant to Swaleh so that he can administer this estate with her. She gave evidence of several incidents when Martha Cherop and Saleh Kipkemoi Chepkole showed open hostility to her soon after the death of the deceased ; she claimed that Mary Cherop and her sons literally ransacked the deceased’s official residence in Embu and took with them numerous title documents to several properties and other important documents ; she claimed that at one occasion Martha Cherop, Saleh Chepkole and Mary Hadija removed a suit case from the deceased’s residence which was put into a vehicle and driven to unknown destination. She claimed that there was cash money KShs 25 million in that suit case; she complained of other incidents when Saleh Chepkole, both before

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and after the deceased’s death, had threatened to beat her up, had threatened to shoot Swaleh with a gun in Embu but was disarmed in time; and that because of all these incidents she felt insecure and needed protection from Saleh. … When Chepkole was called to testify…he made it quite clear that he had not filed objection because he wanted a share of his late brother’s estate. He even told the court to issue the grant Zaina and Martha Cherop, and to any other brother of the deceased without suggesting that a grant should be issued to him as a co-administrator. He admitted that he knew Swaleh, and talked to him as a person had no problem with him as such. But he conceded that, when Swaleh wants to administer the estate of the deceased with his sister (Zaina) that is where the problem is. Though Swaleh petitioned to be appointed a co-administrator of the estate of the deceased, and attended several sessions of this court, he elected not to give evidence. He did not present himself to court for cross-examination for purpose of establishing his suitability as a co-administrator.

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I am aware that Swaleh may, under the provisions of the Law of Succession Act Chapter 160 Laws of Kenya and under Islamic Law, be entitled to be appointed a co-administrator of the estate of the deceased jointly with Zaina. There is, in other words, no bar to this appointment as such. But I am not persuaded that he is a suitable person to be so appointed on the recorded evidence before me. I therefore decline to appoint him.

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In the Matter of the Estate of Charles Muigai Ndung’u (deceased) of Karinde Kiambu District Nairobi High Court Probate and Administration 2398 of 2002 (Kamau J)

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CASE NO. 246

(Life interest accruing to a surviving spouse is extinguished upon her remarriage. The share of the estate to which minor children are entitled is held in statutory trust until the children attain majority. Section 66 of the Law of Succession Act provides a general guide in hierarchical order of the persons who would be entitled to a grant of letters intestate. The court has discretion under section 66 in the appointment of the administrator. The court can pass over the petitioners and appoint the Public Trustee under section 7 of the Public Trustee Act. The court can in appropriate cases presume marriage from prolonged cohabitation and pronounce the woman cohabiting with the deceased prior to his death an heir to his estate)

Letters of administration intestate were sought by a brother of the deceased jointly with a woman who described herself as his widow. The woman was at the time of filing the petition married to another man. The surviving parents of the deceased filed an objection stating that the deceased was single and that the woman petitioner was not the deceased’s wife. The court, upon the evidence tendered, presumed marriage between the woman and the deceased. It was held that the woman had however lost her right over the estate following her remarriage since her life interest in the estate had thereby been extinguished, and in the circumstances her son with the deceased was the sole heir to the estate. The court further found that owing to the conflicts and tensions between the petitioners and objectors it was only fair that the grant be made to a neutral party – the Public Trustee. KAMAU J: From the evidence tendered, I find that the deceased died intestate. At the time of his demise, he was living with Esther Wambui Saoyo with whom he begot a son Geoffrey Ndungu.They did both construct a house on the deceased’s father’s land. That as they so blissfully lived together, at the family of the deceased and members of the community came to recognise their relationship as that of husband and wife. That having been so recognised, the sister of the deceased managed to secure her employment, and as per tendered evidence, the local administrative officers duly also recommended that she was, at the date of death, a wife of the deceased. I am convinced therefore that a case has been made for presumption of marriage by reason of long cohabitation and conduct. The burden of proof is after all on the party who asserts that there was no marriage. There was no evidence adduced in rebuttal of marriage.

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I therefore find that by habit and repute Esther Wambui Saoyo was by presumption and on basis of the principles laid out in the case of Hortensia Wanjiku Yawe v Public Trustee, (Civil Appeal Number 13 of 1976) wife of the deceased and that Geoffrey Ndungu therefore a lawful son of the deceased. On 1 April 2003, however, the petitioner remarried to one Jacob Kimani and consequently her right title to inherit the estate of the deceased were legally extinguished by virtue of the provisions of section 36(1) proviso. I therefore also find that the sole heir entitled to absolutely to inherit the estate of the deceased is the said minor son of the deceased namely Geoffrey Ndungu to the exclusion of all. By reason of her remarriage, Esther Wambui Saoyo, and by extension Sylvester Kongo Mukono also would not be entitled to administer the estate of the deceased. Who should therefore under the circumstances be entitled to administer the estate of the deceased? Section 66 of the Law of Succession Act (Chapter 160) provides: (a)

When the deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference surviving spouse or spouses, with or without association of other beneficiaries;

(b)

other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c)

the Public Trustee; and

(d)

creditors;

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Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall b e granted to any executor or executors who prove the will.’

I have already made a finding that there is no eligible surviving spouse in respect of the estate of the deceased. In the circumstances, there is no continuing trust in life interest and the net intestate estate of the deceased vests unto the only minor child absolutely but in trust.The custody of the said sole heir is presently and rightly in the hands of the now remarried mother.That is as it should be as provided under the Children Act and I accordingly affirm that custody in her favour. The next persons who in hierarchical order would be entitled to administer the estate of the deceased as a general guide section 66 of the Law of Succession Act are the father, mother, brothers and sisters of the deceased,. In accordance with the tenor of evidence received in these proceedings the Petitioners and the objectors are, for the purposes of the said task, incompatible and cannot jointly administer the said estate in the interests of the said sole minor heir. The mother of the minor heir, and who now is vested with lawful custody of the said minor, does at least relate positively with the father. In all the aforesaid circumstances, and in the best interest of the said sole minor heir, I decline to grant the petitioners or the objector grant of representation to the estate of the deceased. It is hereby accordingly therefore ordered that in pursuance of the exercise of the discretion vested under section 66 of the Law of Succession Act and section 7 of the Public Trustee Act (Chapter 168) the grant of letters of administration to the estate of the deceased do forthwith issue in the present cause to the Public Trustee of Kenya. In the circumstances, the entire net intestate estate of the deceased and

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including all household and personal effects at Karinde shall upon finalisation of the administration of the estate of the deceased vest unto the Public Trustee of Kenya in trust for Geoffrey Ndungu son of the deceased until attains the age of eighteen. For purposes of application of income arising from any trust created, I hereby appoint Esther Wambui Saoyo (mother) and Geoffrey Ndungu Muigai (grandfather) joint guardians of Geoffrey Ndungu. The upshot of this is that both the case for the petitioners and the objectors fails, and that therefore it is ordered that each party bears its own costs. Atemo v Imujaro [2003] KLR 435 (Omolo, Shah and Waki JJA) (A woman will be entitled to a grant of letters if she can establish that she was validly married to the deceased).

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CASE NO. 247

The objection to the petition for grant of letters of administration was made by a woman who cohabited with the deceased and for whom the elders paid dowry under Teso customary law before the burial of the deceased. She claimed that she was also a customary law wife of the deceased and that she was entitled to a share in the estate as well as a right to administer the estate. The High Court found that she was not a widow and dismissed the objection, but the Court of Appeal reversed that order, holding that she became a widow upon the payment of dowry before the deceased’s burial.

OMOLO, SHAH AND WAKI JJA: The learned judge’s reason for holding that the appellant was not a wife appears to be that though she (the judge) herself knows that a marriage can be formalised by the elders before burial yet she (i.e. the judge) could not find that position in Eugene Cotran’s Restatement of African Customary Law dealing with the Teso. It appears that the learned judge’s position on the matter was that what is not contained in Cotran’s Restatement cannot be a valid customary law. Is this the correct position for courts of this country to adopt? We would ourselves emphatically reject that proposition. It cannot and must not be taken that what is not recorded in any of Cotran’s Restatements cannot form part of the customary laws of the various communities in Kenya. We very much doubt whether Cotran himself would make or support any such claim. … So what the witnesses of the appellant were saying is that the appellant became the wife of the deceased when the KShs 10 000 was paid before the burial of the deceased. The learned judge herself says she knows a marriage can be formalised by the elders in the manner narrated by the witnesses. Nobody ever suggested to the witnesses that even if the Shs 10 000 were paid in the circumstances stated by them, such payment could not validate the hitherto existing union between the deceased and the appellant. The only reason which made the judge reject that position was because Cotran did not say in his Restatement that a Teso union could be validated in that manner. in our view, the only inference which can be drawn from the evidence of

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the witnesses for the appellant, and which inference we now draw, is that where a Teso couple cohabit as a man and wife without formalising their union into a marriage by payment of dowry, such union can and is converted into a valid marriage upon the death of either the man or the woman if dowry is paid and accepted by the relatives of the woman. That must be why the witnesses for the appellant were aware of the position, spoke about it, and nobody contradicted them on that issue. Accordingly, the learned trial judge was in error in holding that the appellant was not a widow of the deceased. She became a widow of the deceased when the clan of the deceased paid the KShs 10 000 before the burial of the deceased and which was accepted by the clan of the appellant. …what orders should we make in the matter? It is clear to us that both the appellant and the respondent are legitimate widows of the deceased and are, accordingly, jointly entitled to his estate, the claim by the applicant that she was the sole widow having been abandoned. In those circumstances, we allow the appeal, set aside the orders made by the learned trial judge and substitute them with an order that the appellant and the respondent be jointly granted letters of administration to the estate of their late husband Alfred Imujaro Para. Gachigi v Kamau [2003] 1 EA 69 (Tunoi, Bosire and Owuor JJA) (An objector claiming to be the customary law widow of the deceased has to establish that fact by concrete evidence)

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CASE NO. 248

The petition was filed by the widow of the deceased, whereupon another woman also claiming to be a widow of the deceased brought an objection claiming a right to administration. Oral evidence was taken upon which it was found that the objector was not a widow neither were her children the children of the deceased, and consequently she was not entitled to the administration of the estate.

TUNOI, BOSIRE AND OWUOR JJA: The appellant’s case was, briefly, that she and the deceased got married under Kikuyu Customary Law in 1979. She was the deceased’s first wife and he had paid dowry for her amounting to 13 000 which was converted into a number of goats which she did not know. She knew the respondent as her cowife, the respondent having been married to the deceased in 1981. The respondent lived in Ndundori on their family land together with their mother-in-law while she, the appellant, lived in Nakuru town section 39, in the house she previously resided with the deceased. She had three children with the deceased namely Benson, aged 17 years, Teresia, aged 15 years and Pauline Wanjiru, aged 5 years. Benson was named after the deceased’s father, Teresia after his mother and Pauline after her own mother. The appellant produced in evidence the children’s birth certificates that had been obtained in July 1996 long after the deceased’s death. She also produced Child Health Cards from Nakuru Provincial General Hospital, all prepared and obtained on one day bearing the deceased’s name as the father of the children. In support of her case,Wanjiru testified that both the appellant and the respondent were her son’s wives. The appellant was the first one to be married and she and

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her late husband paid dowry for the appellant amounting to KShs 13 000. On the other hand, although she recognised the respondent as the deceased’s second wife, she did not pay any dowry for her because the deceased kept on telling her to wait. However, she acknowledged her as being her daughter-in-law and all her children as her grandchildren. She was categorical that: ‘The petitioner would be wrong to say that she was the only wife my son had. Both the petitioner and the objector are co-wives. My son had property. Both the wives should inherit the deceased’s property.’

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The respondent’s case was simply that she was the only wife of the deceased and her children were the only children of the deceased. Contrary to what the appellant and her mother-in-law said, she never knew the appellant during the deceased’s life time. She had, during the whole period she had been married, lived at Ngorika at the deceased’s home. The deceased was a veterinary doctor who moved to and worked in several places in the country but who at the time of his death was stationed at Nakuru. He died at Nakuru Nursing Home where he had been hospitalised for two weeks. She looked after him during the time of his illness and upon death; she made funeral arrangements with members of his family and friends. Funeral committees were formed and the burial took place at their home. The appellant, if at all, attended the burial like any other visitors from Nakuru. She did not take part in the burial, nor was she acknowledged or introduced or included in the family pictures taken as is the Kikuyu custom. The programme and eulogy read at the funeral made no mention of any other wife or family of the deceased. The respondent only came to know about the appellant two weeks after the burial when she brought her case to court. The respondent’s story was supported by several witnesses. Josphat Mburu (Mburu), the Chief of Ngorika Location where the deceased had a home knew the deceased’s family well. He was a friend of the deceased and knew the respondent as the deceased’s only wife. He had never seen the objector. Mburu was one of the people that were involved in the arrangement of the funeral while the committee was headed by one Daniel Njenga (Njenga). Njenga likewise was born and lived in Ngorika. He was the Chairman of the funeral committee as well as the Master of Ceremony. During the burial, they had involved the respondent as the deceased’s only wife in all the arrangements of the funeral. He is the one who gave the eulogy which was produced as an exhibit and it clearly indicated that the deceased had only one wife, the respondent. Regarding her marriage to the deceased the respondent’s evidence was that dowry was paid to her parents. She called her brother, Ham Nganga Kamau (Kamau) as a witness. The was present when the deceased, his father, Kiiru Nderi, and Mungai Njuguna came to their home and paid KShs 3 000 dowry to his parents in 1983. Although his father was still alive, he was too old and lived in Nyahururu with his second wife and hence his not being able to testify in the superior court. …The learned judge of the superior court apart from evaluating the evidence as we have also done made a categoric finding that he had watched the demeanour of the objector and was satisfied that she was not telling him the truth. He thus stated:

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‘I have considered all the relevant materials placed before me. I looked at the demeanour of the witness because in a case of this type one has to be careful. This is because generally co-wives would be expected to be rivals…I do not believe the objector.’

Apart from the view expressed in the penultimate sentence which is not supported by evidence, we are not persuaded that we should interfere with the decision and we cannot interfere with it unless it can be shown to us that the learned Judge acted on wrong principle. In addition to the above, he considered three other factors. Firstly, that the objector claimed to have been married to the deceased for a period of almost 21 years and yet there was nobody else who she called to support her story except her alleged mother-in-law. Her own father and mother, the people who had allegedly received the dowry were alive and yet neither of them testified, nor was anybody else that took the dowry to her family called as a witness. Then there was the issue as to where the deceased lived in Nakuru. There was no evidence to support the objector’s allegation that she cohabited with the deceased as husband and wife in the house at Section 39 in Nakuru. The evidence that emerged was that indeed and in fact, the deceased had a house at KITI in which he lived and in which the respondent visited him every now and then.That house according to the evidence, was broken into and some of the deceased’s documents stolen. Finally, there was the evidence from the organisers of the funeral as to what transpired at the funeral. Contrary to what the appellant said, none of the witnesses who arranged for the funeral, programme and eulogy knew of the objector or her children. She was not at the funeral as a wife. She took no part in the heavy responsibility that accompany a funeral. Her children were not present at their alleged father’s funeral, and more importantly she was not included in the ‘picture’ taken of the relatives of the deceased.

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The only wife known to everybody, the Chief, the Chairman of the committee, people who grew up with the deceased and were his neighbours was the respondent. We cannot fault the learned judge in coming to the conclusion that he came, that the appellant had not established her case and she was not a wife of the deceased. As to the second complaint that the learned judge erred in not finding that the appellant’s three children were indeed children of the deceased, the only evidence before the learned judge to establish this important fact were the children’s birth certificates and hospital cards, both set of documents which were obtained after the deceased’s death. Counsel for the appellant conceded, and in our view, rightly so, that these documents were of no evidential value. They were obtained as the learned judge found: ‘She relied on her children’s clinical cards which all appear to be new. They were made by the same hand. This shows that they were prepared for the purpose of this case. The birth certificates were also prepared during the pendency of this case. They were meant in my view to mislead the court.’

We are in full agreement with the view of the learned judge. there was no doubt that the respondent had merely walked into the hospital and had all the cards written out

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for each of the children without any regard as to whether the children had attended any clinic at the hospital in the long period of their infancy or not. We have, as it is our duty as the first appellate court, examined and considered the evidence that was put before the learned Judge of the superior court. We are satisfied as the learned trial judge was that the appellant was not the deceased’s wife nor were her children the children of the deceased, so as to qualify as dependants and beneficiaries of the deceased’s estate. ***

13.3 REVOCATION

OF

GRANTS

A grant once made is liable to revocation, on the application of a party or on the court’s own motion, on any of the grounds set out in section 76 of the Law of Succession Act. Section 76 provides as follows:

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‘76.

A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decided either on application by any interested party or of its own motion(a)

that the proceedings to obtain the grant were defective in substance;

(b)

that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c)

that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d)

that the person to whom the grant was made has failed, after due notice and without reasonable cause either: (i)

to apply for confirmation of the grant within one year from the date thereof, or such period as the court has ordered or allowed; or

(ii)

to proceed diligently with the administration of the estate; or

(iii)

to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

That the grant has become useless and inoperative through subsequent circumstances.’

Cases numbers 224, 226, 227, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273 and 335 illustrate the circumstances under which a will may be revoked and the procedure to be followed in seeking such revocation.

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In the Matter of the Estate of Patrick Mbugua Njoroge (deceased) Nairobi High Court probate and administration number 659 of 1989 (Waweru J)

CASE NO. 249

(Applications premised on section 76 of the Law of Succession Act must be based on the grounds set out in that provision, otherwise they fail). Heirs who were unhappy with the administration of their deceased father’s estate sought to have the grant of administration revoked, basing their application on grounds other than those set out in section 76 of the Law of Succession Act. It was held that the application was bound to fail as any application for revocation of grant has to be premised on the grounds listed in section 76.

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WAWERU J: The application, made under section 76 of the Law of Succession Act, Chapter 160, is based on the grounds: (a)

That the parties’ mother, RACHAEL, is now deceased;

(b)

That there is a decision of the elders and family members of the deceased and Rachael who have fears that Catherine, who is married, may disinherit the other children. It is not stated what that decision is ;

(c)

That Catherine’s actions have become of concern to Stephen and Mary, the elders and family members over her dishonesty and her sole irregular administration of the estate;

(d)

That Stephen is a student in the United States of America and solely dependent on the estate for his upkeep, medication and basic necessities; and

(e)

That the grant was issued without consent of all adult members of the family.

… Section 76 of the Law of Succession Act sets out clear and concise legal grounds upon which a grant of representation may be revoked or annulled. These are: (a)

That the proceedings to obtain the grant were defective in substance;

(b)

That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c)

That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d)

That the person to whom the grant was made has failed, after due notice and without reasonable cause either: (i)

to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; or

(ii)

to proceed diligently with the administration of the estate; or

(iii)

to produce to court, within the time prescribed, any inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of

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section 83 of the Act or has produced any such inventory or account which is false in any material particular; or (e)

That the grant has become useless and in operative through subsequent circumstances.

The first and second grounds of the application do not come within any of the five legal grounds set out above. The third ground seems to allege that the surviving administratrix is not proceeding diligently with the administration of the estate. But there is no evidence of that in the supporting affidavits. In any case, this court (Hon. Aluoch J) by an order dated 09.04.03 stayed operation of the grant of representation pending determination of the present application. So, even if the surviving administratrix wanted to, she would not be able to proceed with the administration of the estate. Ground four of the application also does not fall within the five legal grounds set out above. I disposed of grounds five of the application towards the beginning of this ruling. The upshot of all this is that no legal ground upon which the court can revoke the grant as sought has been established. I must therefore dismiss the application. In the circumstances of this case, each party will bear his own costs. In the Matter of the Estate of Njau Ndungi (deceased) Nairobi High Court probate and administration number 863 of 1991 (Aluoch J) (The court can revoke the grant on its own motion, and a grant which has become useless should be revoked)

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CASE NO. 250

The applicants seeking revocation of grant were brothers of the deceased, challenging the grant made to the children of their deceased brother. Their position was that the land listed in the petition as belonging to the deceased was not his, but that of their late father. The court on its own motion revoked the grant on the grounds that the same had become useless and ineffective since it was meant for division of land which had already been subdivided.

ALUOCH J: The submissions of Bernard on behalf of the other petitioners have shown quite clearly that the parcel of Land known as NDUMBERI/TINGANGA/478, does not exist the same having been subdivided amongst the sons of the deceased by his two wives, Hannah and Damaris, and new title deeds issued. That being so, I find that there is nothing to subdivide because the land does not exist anymore. The objection by way of summons for revocation or annulment filed by Damaris and Francis Mami and Nelson Kungu cannot succeed and I proceed to dismiss it with costs. Having dismissed the objection brought by Damaris and her 2 brothers-in-law, I now move to revoke the grant of letters of administration and the certificate of confirmation issued to Damaris Wanjiku Njau, Francis Mami Ndungi and Nelson Kungu Ndungi. I have moved to revoke this grant out of my own motion under Section 76 of the Succession Act, because it was meant for the subdivision of NDUMBERI/

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TINGANGA/478 which had already been subdivided and transferred by the time this grant was obtained in Kiambu Chief Magistrate’s court. These are the orders of the court. In the Estate of Ezekiel Mulanda Masai Eldoret High Court Probate and Administration 4 of 1992 (Etyang J)

CASE NO. 251

(A grant is liable for revocation where the person who obtained it concealed material information from the court and excluded some of the survivors of the deceased) A revocation was sought of a confirmed grant on the grounds that it was obtained fraudulently without disclosing all the facts and by excluding some of the survivors of the deceased from the list of survivors. The grant was revoked.

ETYANG J: It has been conceded by Ambrose Nambosio Namulanda (the petititoner/ respondent) that Jesicah Mukhwana Namulanda is his step mother (the widow of the deceased) and Wilson Mukiti Mulanda is the eldest son of the applicant.Yet they have been left out from the list of the deceased’s dependants. The petitioner/respondent purported to identify the deceased’s estate in an affidavit filed on 21 May 1996. He applied for and granted letters of administration to administer that whole estate singly. In fact the estate of the deceased has not been distributed to all his surviving widow and children of the deceased. For the above reasons the grant issued to the petitioner/respondent confirmed on 1 July 1993 is hereby revoked as prayed.

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I direct the law firm of BN Munialo and Company, acting for the applicants, now to commence processing a proper application for grant of letters of administration of the deceased’s surviving dependants and his estate for eventual equitable distribution. I award the applicants the costs of this summons. It is so ordered

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In the Matter of the Estate of Ruth Wamucii – Deceased Nairobi High Court P and A number 1012 of 1992 (Ang’awa J)

CASE NO. 252

(An application for revocation of grant founded on section 76 of the Law of Succession Act must conform with the requirements of rule 44 of the Probate and Administration Act, and the provisions of the Civil Procedure Rules governing applications will not apply to applications for revocation unless such provisions are mentioned in rule 63 of the Probate and Administration Rules) The facts of the matter before the court were not set out in the ruling, but the court summarised the procedure to be followed in an application for revocation of grant premised on section 76 of the Law of Succession Act.

ANG’AWA J: The procedure of when a party comes for an application of revocation of a grant is as follows: A party would bring an application under section 76 of the Law of Succession:

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‘A grant of representation whether or not confirmed at any time be revoked or amended, if the court decides to enter an application by any interested party or of its own motion (a)

...

(b)

...

(c)

...

(d)

... (i)

...

(ii)

...

(iii)

...

(iv)

...

This would be done by the aggrieved party filing an application to the High Court for revocation or annulment of grant. He would file FORM 107 and FORM 14. A miscellaneous file would be opened by the registry if the grant was issued in the subordinate court. If the grant is a High Court case, then the application for revocation would be filed in the same file. The application is not served. The file would be immediately set before the registrar (in Nairobi it would be the Registrar in charge of probate matters) whereby the Registrar would issue FORM 70. A notice to the applicant (i.e. the aggrieved party) seeking revocation or annulment of grant.This notice would have the date in which the aggrieved applicant would appear before the judge for directions. The matter would be heard ex parte at this stage. The task of the judge is (under rules 44(3) of the probate rules) to give direction as to:

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What persons (if any) shall be served by the applicant with a copy of the summons (FORM 107) and affidavit (FORM 14) and as the manner of effecting service.

For example, the administrator, the wife and or children may be directed to be served. If land has changed hands and it has been transferred through the probate, the new owner would be served as he also would be affected. Once this ex parte direction has been given by the Honourable the Judge it is then that the applicant would prepare Form P and A 68, being a notice of application to the High Court for revocation or annulment of grant.This notice would be served on ALL the named persons at the stage of directions by the judge. They are also required to be served with the copy of the proceedings (rule 44(4)). Now all those who have been served would each have been served each file an affidavit only stating ‘whether they support or oppose the application and the grounds thereof.’ The matter is placed before the judge and on notice to the applicant and every person served. The court may proceed to determine the matter or may make orders as it sees fit. For example allowing the revocation or requesting the parties to submit or to go for full hearing of the revocation. It is a very simple procedure if followed to the letter. No party is allowed to file grounds of application. This is because rule 63 of the Probate rules the Civil Procedure Rules has never applied save as the rules mentioned there. The rules applicable under the Civil Procedure Rules are: Order XV – Summoning and attendance of witnesses. Order XVIII – affidavit Order XXV – security of69 costs Order V – Service of summons Order X – Interrogations,70 Discovery, Suspension71

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Order XI – Consolidation of suit Order XLIV – Review Order XLIX – Time

The High Court practice rules shall also apply so far as its relevant. Now the grounds of opposition have been repealed and need not be filed. This again does not apply to matter of revocation. A party which is faced with an application for revocation is not to file any documents until he is served with a notice under the probate rule 44(3); Form P and A 68. It is then that an affidavit would be filed. This would not be in reply. It would be an affidavit stating whether the revocation is supported or opposed and the reasons why. The court has powers to revoke a grant 69

This should read ‘for.’

70

The court meant ‘Interrogatories.’

71

This should read ‘Inspection.’

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under its own motion but on condition that a notice to this effect has been given to the parties under form P and A 69. Once a party has been served with such a notice which would state the grounds for revocation then the person affected would file an affidavit stating the grounds opposing the revocation. I hoped to lay down the procedure as contained in the probate rules for clarification as to the procedure for revocation and may be of use to the parties concerned. Samwel Wafula Wasike v Hudson Simiyu Wafula (1993) LLR (CAK) (Kwach, Omolo and Tunoi JJA) CASE NO. 253

(A grant obtained on the strength of false claims, without obtaining the consent of persons who had prior right to the grant and on the basis of facts concealed from the court, is liable to revocation).

KWACH, OMOLO AND TUNOI JJA:This is an appeal from the decision of the High Court at Kakamega (Osiemo J) dated 16 January 1992, by which he granted an application by Hudson Simiyu Wafula (the respondent), for annulment of a grant of probate to Samwel Wafula Wasike (the appellant) in respect of the estate of Matiembu Matulu (the deceased) who died intestate on 1 May 1989.

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The application which was filed on 21 November, 1990, was supported by an affidavit sworn by the respondent in which he alleged among other things The petitioner sought a grant of letters of administration on the grounds that he was the sole heir of the deceased who he purported was his grandmother. It turned out that she was in fact not his grandmother, but the sister of his own grandmother. It was held the grant was obtained fraudulently and it was ordered revoked. That the appellant had deceived the court when he stated in his application for grant he (the appellant) was the grandson of the deceased. In other words, the respondent sought the revocation of succession Act (Chapter 160) (sic) on the ground that the grant had been obtained fraudulently by making of a false statement by the appellant. In his petition for grant, the appellant stated he presented the petition in his capacity as a grandson of the deceased. He also stated that every person having an equal or prior right to a grant of representation had consented to his application for grant of representation. That was not the end. When the appellant applied for the confirmation of the grant on 8 June 1990 he sought to inherit a parcel of land No. Bungoma/Khalumuli/1935, as the sole heir of the deceased. In the supporting affidavit he deposed that he was the only heir left by the deceased. All these claims by the appellant were false. As it turned out, the deceased was not his grandmother but the sister of his own grandmother, one Maria Nasimiyu. Secondly, the respondent who had prior right to representation had not given his consent to the application by the appellant. Thirdly, the appellant’s claim that he was the deceased’s legitimate and sole heir was the respondent (sic), a material fact which was concealed from the court…We agree with the submission of Mr Juma, for the

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respondent, that if the appellant had placed the true facts before the court a grant would not have been made in his favour. In the Matter of the Estate of Ngaii Gatumbi alias James Ngaii Gatumbi (deceased) Nairobi High Court succession cause number 783 of 1993 (Koome J)

CASE NO. 254

(A grant will be revoked where a person who is entitled to apply is notified by the petitioner of their intention to apply and that person’s consent to the petitioner’s application is not sought) The application for revocation was brought by persons who were omitted from the petition for grant although they were equally entitled to apply, but were not notified of the petition neither were their respective consents obtained. The court revoked the grant on the ground that it had been obtained by a defective or irregular process.

KOOME J: I have given due consideration to the submissions by both counsels. I have also taken considerable time to go through the records of the Githunguri court, the Senior Principal Magistrate’s proceedings in Kiambu. This grant was issued on 28 February 1992 and confirmed on 22 April 1992 within a period of about two months. I have not seen any application which was brought under section 71(3) directing the grant to be confirmed before the expiration of six months.

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The other anomaly I have noted is to do with the fact that there is no evidence that the objectors were ever notified of the petition for the Letters of Administration. Rules 26 and 40(8) of the P and A rules are quite clear that Letters of Administration shall not be granted to any applicant without notice to every person entitled in the same degree as or in priority to the applicant. I am satisfied that all the applicants rank in the same priority with the respondent. I also find that the consents of the applicants in writing were not obtained. … In view of the above, I am satisfied that the grant of Letters of Administration issued on 28 February 1992 and confirmed on 22 April 1992 should be revoked and all the consequential transactions that were effected with the said grant. In the interest of justice and to avoid unnecessary delay I order that another grant should be issued jointly to Joseph Waweru Ngai, Elizabeth Nyagichai and Peter Ndua Ngai. The joint administrators should forthwith file an application for confirmation suggesting the agreed mode of distribution of the deceased only parcel of land.

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In the Matter of the Estate of Chege Njuguna (deceased) Nairobi High Court succession cause number 832 of 1993 (Koome J) (A party wishing to be heard in opposition or upon any application and who had not previously appeared in the proceedings must file an appearance in accordance with the rules. A party who claims an interest in the property making up the estate, and who is not entitled in intestacy to the estate should bring a separate suit for determination of his rights to the property, since the succession cause is not the appropriate forum for the adjudication of such interests)

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CASE NO. 255

A revocation of grant application was made by a brother and a daughter of the deceased.The brother’s argument was that the land listed as the assets making up the estate was in fact family land to which he was entitled. The daughter’s complaint was the deceased was a polygamist, and that she and other members of her side of the family were not disclosed as survivors of the deceased. On the brother’s claim, the court found that his remedy lay in bringing a separate suit under Order 36 of the Civil Procedure Rules to claim that the land was held in trust or an ordinary suit for a declaration that the deceased held the land in trust for him. On the daughter’s claim the court found that she had not brought a proper application as she had not filed an appearance in accordance with rule 60 of the Probate and Administration Rules.

KOOME J: According to section 76 one has to show that he has an interest in the estate. The present applicant is a brother of the deceased and according to section 66, the order of priority of persons entitled to be appointed as administrators is given. Since the widow of the deceased is alive and she is the petitioner nobody can challenge her priority to apply for the grant. The other person named is the second petitioner who is a disclosed creditor. Leave to purchase the land as per sale agreement entered with the deceased was granted by court at the stage of confirmation of the grant. His presence as a petitioner was necessitated by the fact that as at the time the petition was made there were minor children and Section 75 of the Law of Succession Act provides that there should be two administrators where there is a continuing trust. The second petitioner is a creditor named under section 60(d) of the Law of Succession Act a creditor can also apply for grant of letters of administration. Even if this application was properly before the court. Section 93 of the Law of Succession Act gives protection to a transfer made to a third party. The transfer of a parcel number Ndarugu/Gakoe/578 was validly transferred, with leave of the court. Under section 82 the administrator can purchase (sic) the assets of the deceased but the purchaser’s rights can be voided if the beneficiaries have made an application.The interested party herein has not applied to avoid the transaction that was approved by the court. The applicant opposed the preliminary objection and in his arguments raised the following points:

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The objection is properly before the court as provided by rule 17(1) of the P and A rules which they have duly complied with.The applicants submitted that the second petitioner cannot be a purchaser as the role and responsibilities are clearly defined under section 82(2), (1) which prohibits personal representatives from purchasing any of the assets of the deceased.The objectors were not disclosed during the proceedings, nor were the interests of the second administrator disclosed at the time of making the application for grant. The fact that the petitioner did not disclose to the objectors, the grant was obtained by fraud and misrepresentation as the second petitioner failed to disclose that he was a creditor. The objector is a brother of the deceased and the land is a family land which was held on trust for the whole family. In evaluation of the above evidence I have to address myself to the following issues: (i)

where (sic) the proceedings to obtain the grant defective in substance

(ii)

Was the grant obtained fraudulently by making false statement and concealment from court of material acts (sic).

(iii)

Is the objection void ab initio.

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In answering the above questions I refer to sections 35, 37, 38 and 39 of the Law of Succession Act which clearly sets out the order of priority of the persons entitled to inherit the deceased estate (sic). First it is the spouse and then the children of the deceased. It is alleged that the deceased had another wife Esther Nyakango who passed away in 1977 leaving two daughters Jane Njeri Mwaura and Dorcas Wambui Karumbine. As at the time this application was made the first petitioner had the prior rights to do so. The second petitioner is said to be a stranger who had no interest in the matter and who should not be included as the application for grant does not even disclose the second petitioner as a creditor. I am persuaded by reading section 66(d) of the Law of Succession Act that even creditors can be included as administrators of a deceased estate. What is then the applicant’s cause of action? Firstly as I understand it the first petitioner did not disclose material information such as the existence of other beneficiaries and that land parcel number Gakoe/Ndarugu/578 is a family land held in trust. This argument in my view holds. If the first petitioner failed to disclose the existence of beneficiaries I would be convinced that is a valid ground to be set aside the grant. I am not convinced that the objector who has filed this application is properly before the court. He claims that the land cited above is family land, I am persuaded that he ought to bring a separate suit under Order 36 of the Civil Procedure to claim the land held in trust. Alternatively the objector could have applied for determination of trust before the grant was confirmed as provided in rule 41. That is the proper procedure of establishing the trust held by a deceased. As I pointed out, if Jane Njeri Mwaura and Dorcas Wambui Karumburu are deceased children (sic) then they ought to have been disclosed in the petition for grant. I am not able to say they are the children of the deceased at this stage save to ask myself whether they have objected to the grant as I am convinced if indeed they are deceased children (sic), they would be interested party (sic) who have been left out in these proceedings. Jane Njeri Mwaura has filed an affidavit supporting the objection raised herein by the applicant who is her uncle. The main contention is that they

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had agreed to sell and indeed started the sale transaction of land parcel No. Gakoe/ Ndarugu/578. Jane Njeri Mwaura has not complied with rule 60 of the P and A rule (sic) which provides and I quote: ‘Every interested person (whether or not he has been served with notice thereof) who wished to be heard upon or to oppose any application and has not already appeared in the proceedings shall enter an appearance in Form 26 in the registry in which the application is made giving his address for service, and may file such applications as he considers proper, to each of which the applicant may with leave of the court file on application in reply.’

I am of the humble view that Jane is the person who could raise a valid objection as a daughter but due to the fact that she has not complied with the rules I find that she has not filed a valid objection herein. In this regard I agree with the petitioner’s advocate that there is no valid objection before this court and dismiss the same. Since this matter involves members of the same family I will order every party to bear their own costs. In the Matter of the Estate of Isaac Kireru Njuguna (deceased) Nairobi High Court succession cause number 1064 of 1994 (Aluoch J)

CASE NO. 256

(A grant is liable for revocation where all the heirs have not consented to the mode of distribution and all the properties which make up the estate are not taken into account or distributed)72

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The parties seeking revocation of the grant were complaining about the distribution of the estate, that they were not being involved in the process, that not all of them had consented to the proposed mode of distribution and that all the assets making up the estate had not been distributed. The grant was revoked on those grounds. ALUOCH J: I have also scrutinised the consent form attached to the replying affidavit of Kimani Njuguna, the deceased’s brother and one of the petitioners.The form shows that it was consent in respect of the proposed administrators. There is also another handwritten document headed ‘Sharing Agreement Between Evan Kimani Njuguna and Hannah Mwihaki Kireru.’ It has some calculations of proposed properties, both moveable and immovable, and sharing of proceeds between Evan Kimani Njuguna and Hannah Mwihaki Kireri, but not the other beneficiaries. This was said to be the mode of distribution of the deceased’s estate, yet there is no consent of all the other beneficiaries. I noted that this ‘sharing agreement,’ did not take into account all the assets of the deceased listed in Form P and A 5.

72

The practice of revoking grants because of defects or flaws in the confirmation process does not appear to be altogether proper. It is not captured by section 76 of the Law of Succession Act. Although it may still be argued that mistakes made by the administrator at the confirmation process are indicators of lack of diligence in the administration of the estate.

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When I considered all this evidence, I came to the conclusion that the mode of distribution of the assets of the deceased in this Succession Case was flawed! The deceased survivors, who were adults as shown in P and A 5, never consented to the mode of distribution as required by law. Secondly, not all the properties were ‘distributed’ so to speak. See the list in Form P and A 5. Thirdly the deceased brother Evan Kimani Njuguna was named as a survivor. this went against the Law in that the Succession Act gives a list of survivors where a deceased had left a spouse and children surviving him or her. See Section 35 of the Succession Act. How does the brother come in? If, however the property in question is said to have been jointly owned by the deceased and his brother Evan Kimani Njuguna, where is such evidence of joint ownership to enable the deceased brother to inherit from his estate? For the reasons I have considered above, I find that I must proceed under section 76 of the Succession Act, and Revoke the Grant of Letters of Administration issued to Njuguna Kimani and Patrick Njuguna on 13th December, 1994 and subsequently confirmed, vide Certificate of Confirmation dated 24 May, 1996. It is now upto the deceased’s family to either retain the previous administrators, or agree on who should be the administrator to the deceased’s estate.

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Whoever the administrators are, they must ensure that all the survivors of the deceased agree to a mode of distribution of the deceased’s estate.

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In the Matter of the Estate of Yusuf Mohamed – Deceased Mombasa High Court probate and administration number 434 of 1995 (Waki J) (The provisions of section 76 of the Law of Succession Act and rule 44(2) of the Probate and Administration Rules make a distinction between applications for revocation and those for annulment of grants)

CASE NO. 257

The application for revocation of the confirmed grant was made by an alleged first-born son of the deceased, stating that the petitioners falsely alleged that the deceased was survived by three children only, and that he did not consent to the issue of the grant to the petitioners. The court found that there were other survivors of the deceased who were not disclosed in the petition and who were not notified of the same, and proceeded to revoke the grant.The court also directed the administrators to file accounts of their administration of the estate. The court pointed out that section 76 of the Law of Succession Act and rule 44(2) of the Probate and Administration Rules, makes a difference between application for revocation and that for annulment.

WAKI J: The starting point in the matter is the law under which the application is made. There is no doubt that the court has the power under section 76 of the Succession Act to revoke or nullify a grant whether or not confirmed if inter alia: ‘The grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case.’

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There are however procedural requirements under rule 44 of the Probate and Administration Rules which are expressed in mandatory form, to wit: ‘44(2) there shall be filed with the summons an affidavit of the applicant in Form 14 for revocation or annulment identifying the cause and the grant and containing the following particulars so far as they are known to him: (a)

Whether the applicant seeks to have the grant revoked or annulled and the grounds upon which the application is based; and

(b)

The extent to which the estate of the deceased has been or is believed to have been administered or to remain unadministered, together with any other material information.’

I take it that the requirement under section 2(a) arises because there is a difference between annulment and revocation and the applicant must choose the one or the other. Annulment would entail a declaration that the document never existed and had no legal effect while revocation simply means cancellation or withdrawal.

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The requirement under (b) I believe is made to address the interests of third parties who may have acquired valid interests without notice of any irregularities and enables the court to address inequitable issues. While the applicant herein has expressed the summons to be one for ‘Revocation of Grant’ and therefore complies with (a) it says little about (b) which ought to be in Form Number 14. The consequences of that omission will be reflected in the final orders. On the merits of the application I do, as did Mr Khatib for the applicant, prefer the evidence of Rukiya who was the wife of the deceased and who, unlike Salem, was alive when Miriam, her sister was living before 1963 and must have known whether she was the deceased’s wife. She would also know and did confirm that the children of Mariam were the deceased’s. In her honesty she acknowledged the existence of the other two wives and child of the deceased whom, even the applicant intended to dismiss as inconsequential, and who are entitled to inherit from the deceased under Islamic law. I believe that although Rukia is one of the administrators of the estate, the prime mover in the petition was Salem and Rukiya was not actuated by fraud. Salem also appears to have acted out of youthful ignorance as he confessed that he never enquired whether Hassan and other siblings around the house of his father were his brothers and sisters or his cousins. The fact of the matter is that material facts have now come to light which entitled other dependants of the deceased to either apply for grant of letters in parity or give their consent to such application to the two administrators named in the grant. There is no denying nevertheless that the two qualify as the deceased’s dependants and were entitled to apply for the grant also.73

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To redress that position it is inevitable that the grant issued to the two should be revoked. A fresh grant shall be issued to the petitioner or such persons as the court may decide, upon compliance with the provisions of rule 26 of the Probate and Administration Rules. There is evidence which I accept, that the only asset of the estate has been sold to third parties and there are even ‘fourth’ parties involved as lenders of money on security thereof.There is no indication that those parties were privy to the irregularities alleged in the processing of the grant. The delay caused in seeking revocation did not help matters either and I do not agree with the applicant that it was perfectly in order for him to know about the death of his father, and even attend his burial and yet as the first born son, ignore a public notice in the Kenya Gazette and lie low for four years until he seeks revocation of a confirmed grant. I think with respect that section 92 and 93 of the Succession Act were intended to protect innocent parties in such circumstances. In this case the interests of the innocent third parties shall remain unaffected but the administrators cannot escape

73

The right to apply for grant of letters of administration is not pegged on dependency as defined in Part III of the Act, rather it depends on whether one has survived the deceased as defined in Part V of the Act. Section 66 (a), (b) of the Act, which spells out who may be granted letters of administration gives priority to the persons who have survived the deceased as set out in Part V of the Act, with preference going to the surviving spouse, followed by the surviving children of the deceased, the surviving parents, surviving siblings, in that order. The issue of determining whether a person was a dependant of the deceased only arises where the court has to consider an application for reasonable provision brought under section 26 of the Act.

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responsibility to the estate as provided for under section 83(g) of the Act which I invoke on my own motion and order that the respondents do produce to the court a full and accurate account of all dealings therewith up to the date of the account. The order shall be complied with within 60 days. In the Matter of the Estate of Hemed Abdalla Kaniki (deceased) Nairobi High Court succession cause number 1831 of 1996 (Kamau AJ)

CASE NO. 258

(The failure to prosecute objection proceedings brought under section 68 of the Law of Succession Act is not a bar to the prosecution of revocation proceedings brought subsequently under section 76 of the Law of Succession Act)

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The administrators sought, by way of preliminary objection, to have the applicants in an application for revocation stopped from prosecuting the same, arguing that having abandoned an objection that they had brought earlier under section 68 of the Law of Succession Act, they were not entitled to be heard on the application for revocation. The court rejected the preliminary objection upon the holding that the abandonment of objection proceedings was no bar to the revocation proceedings. KAMAU AJ: The provisions of S. 68 and 69 of the Law of Succession Act (Chapter 160) provide for the initial prescribed process in the making of a grant of representation. Read together with Rule 17 of the Probate and Administration Rules, the said provisions are in my considered view available to those persons who are entitled as provided under section 66 of the Law of Succession Act (Chapter 160) to apply for a grant of representation intestate. Nowhere do the said provision provide that failure to either take advantage thereunder or to prosecute to the fullest intended objection bars one from seeking remedies provided under section 76 of the Law of Succession Act (Chapter 160). The only inhibition is to be found at Sub-rule 7 proviso which states; ‘Provided that an objector who has withdrawn his objection shall not be entitled to file a further objection in respect of the same application for a grant.’

The said sections and related rules are therefore simply enabling and not restraining and thus a party who fails in good faith to prosecute his filed objection is not injuncted against pursuing remedies provided under section 76 of the Law of Succession Act Chapter 160. The provisions of section 76 of the Law of Succession Act (Chapter 160) are quite the opposite. They are open to any person who may be interested in the administration of the estate of the deceased person.This is further emphasised in Rule 44 of the Probate and Administration Rules which rule is clearly open-ended as it does not contain any limitations or inhibitions. The said provisions are intended to determine greater fundamental legal issues and hence ensure proper administration and finalisation of the estate of the deceased within the framework of the due process.

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I hold therefore that failure to utilise the remedies of objection proceeding does not bar one from seeking remedies of revocation or annulment of a grant and so long as there is no mala fides. The applicants in this case come to this court not as heirs of the deceased but as claimants in constructive or implied trust. The only remedy open to them in respect of their claim against the appointed personal representatives is as provided under section 76 of the Law of Succession Act (Chapter 160).they can only seek for annulment of grant in the pursuit and to the extent of their said claim. That they have somewhat abandoned their earlier application by way of objection proceedings is as I have held above not a barrier to initiating these present proceedings. It is even understandable. By the time the mandatory statutory notice by the Registrar under section 68(2) of the Law of Succession Act (Chapter 160) was issued and subsequently served on the applicants, a grant of letters of administration had already been granted and issued by this court. No doubt, they were entitled to fee +=l apprehensive which apprehension precipitated in good faith the present application for revocation of the said grant. In the circumstances aforesaid I hold that the said application for revocation of grant is valid on record and is not an abuse of process. In the Matter of the Estate of Dr Arvinder Singh Dhingra (deceased) Nairobi High Court succession cause number 2572 of 1996 (Aluoch J) (A grant should only be made to persons who have applied for it).

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CASE NO. 259

A court issued a grant of letters of administration to the advocates for the parties who had not applied for the grant. The court appeared to have considered that the interests of the parties in the highly contested matter could only be best tackled by making a joint grant to their advocates. The order was later reviewed and the grant revoked by the court on its own motion on the grounds that the proceedings where a grant is made to persons who had not applied for it were defective.

ALUOCH J: One of the orders recorded as I have already stated was to the effect that: ‘That the advocates Mrs Rawal and Mr Oyatsi be joint administrators confirmed grant be issued in their joint names.’

This order directed that the two advocates be joint administrators yet they had not petitioned for the grant. An order that a confirmed grant be in the joint names of two advocates who both had not petitioned for a grant therefore went against the Probate and Administration Rules, and for that reason, and relying on section 76 of the Succession Act, I proceed to revoke that grant.

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Section 76 reads, ‘A Grant of Representation whether or not confirmed may at any time be revoked or annulled if the court decides either on application by an interested party or of its own motion (a)

that the proceedings to obtain grant were defective in substance.’

I find the proceedings of 2 April 1998 in so far as the appointment of the 2 administrators and the direction to confirm grant to have been defective in substance and I have proceeded to revoke that grant of my own motion. By doing this, I have in effect reviewed the orders of 2 April 1998 by Owuor J (as she then was). The procedure for review is provided by Rule 63(1) of the Probate and Administration Rules. In the Matter of the Estate of Mohamed Mussa (deceased) Mombasa High Court succession cause number 9 of 1997 (Khaminwa J) CASE NO. 260

(A grant will be revoked for lack of diligence in the administration of the estate on the part of the administrators). The administrators had not kept proper records and one of the administrators was too old and senile. The grant was revoked for failure to keep proper accounts and also on the grounds that the grant had been obtained fraudulently.

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KHAMINWA J: From evidence of parties it is clear that the second administrator Mwanahawa Khamis Tangai is very old and is also of unstable mind and unable to perform the duties of the administrator. The fact has always been known to the first administrator. It is also admitted by the first administrator that she does not keep any records of accounts of her dealings with the estate. She cannot tell how much she has collected and how she spent the income. She also admits of having omitted to include the applicant from the list of beneficiaries. I find that the second administrator is not capable of performing the duties of an administrator on ground of mental health and old age. I also find that the administrators have not diligently proceeded with proper administration of the estate being unable to keep records or make accounts of the dealings of the estate.The grant was obtained by making false statements and concealing the full list of beneficiaries.

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In the Matter of the Estate of Makali Nzyoka Machakos High Court probate and administration cause 60 of 1997 (Wendoh J)

CASE NO. 261

(An application for revocation made under section 76 of the Law of Succession Act must conform with the procedure set out in rule 44(2) of the Probate and Administration Rules, and order XXXIX of the Civil Procedure Rules is not one of the provisions of the Civil Procedure Rules that have been applied to probate practice by rule 63 of the Probate and Administration Rules)

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A preliminary objection was raised to an application for revocation made under section 76 of the Law of Succession Act and order XXXIX of the Civil Procedure Rules. The gist of the objection was that the application for revocation did not conform with the procedure set out in rule 44(2) of the Probate and Administration Rules, and that order XXXIX of the Civil Procedure Rules was not one of the provisions of the Civil Procedure Rules imported into succession practice by rule 63 of the Probate and Administration Rules. The court upheld the objection. WENDOH J: The first limb of the objection to the application is dated 29 November 2001 is that it offends the provisions of rule 44(1) Probate and Administration Rules which provides that an application brought under section 76 of the Law of Succession Act, shall be by summons in Form 107 and shall be issued by the registry of the particular High Court. I have had a look at Form 107 of the Probate and Administration Rules and I do agree that the form of the application does not conform with Form 107. Besides this application is not issued by the Deputy Registrar as provided in Form 107. The provisions of rule 44(1) are mandatory and the applicant should comply. The other limb of the preliminary objection is that the application offends provisions of rule 44(2). It provides as follows: ‘There shall be filed with the summons an affidavit of the applicant in Form 14 for revocation or annulment identifying the cause and the grant and containing the following particulars so far as they are known to him ... ’

The affidavit filed in support of the application in issue does not identify the cause, that is whether it is for revocation or annulment. The affidavit indicates that it is summons for revocation or annulment. That form is again defective as the provisions of rule 44(2) are mandatory the ‘shall’ having been used.Though the court will always look at the substance rather than the form, the form here is crucial as the court has to know what the applicant seeks. He cannot beat about the bush and purport to seek annulment or revocation. He has to be specific. It is the applicants’ contention that the beneficiaries have no legal status in this matter but are mere observers and hence have no locus to raise preliminary objection

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and that the application dated 29 November 2001 is between the applicants and the Public Trustee to whom grant is confirmed on behalf of the beneficiaries and if beneficiaries are to be heard they should come by way of substantive application, and that as of now they are mere observers,.

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I have had a chance to read the proceedings of the court on 12 June 2003 and the ruling of the court.The court observed that though the Public Trustee holds the letters of administration, when he was about to distribute the estate an objection was filed and it is now upon the court to determine who the beneficiaries are and the court further directed that since the beneficiaries already identified by the Public Trustee had not had the case determined, they have to defend their interests whether they choose to act through another lawyer or on their own or go as per information of Public Trustee. Mrs Nzei says that it is upon this direction by the court that the beneficiaries who the Public Trustee identified instructed her to come on record to protect her interests. Rule 60 of Probate and Administration Rules provides that every interested person, who wishes to be heard upon or to oppose any application and has not already appeared in the proceedings, shall enter an appearance and may file such affidavits in reply. It means that the beneficiaries can come in and oppose the application filed. There is no requirement that they file a substantive application as suggested by the counsel for applicants. They have to come on record through representation by Mrs Nzei. They are opposed to the application and have filed a preliminary objection on points of law. In my view the beneficiaries have a legal standing in the matter and are properly on record and have properly raised the preliminary objection. If indeed there is merit in their objection, there is no way they would have filed affidavits in response to an improper application. Another limb of the objection raised is that this application offends provisions of Rule 63 of Probate and Administration Act.74 Under that Rule only Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX shall apply to proceedings under the Probate and Administration Rules. The applicant has brought the application dated 29 November 2001 under Order 39 Civil Procedure Rules which is not one of the orders listed under rule 63. Order 39 Civil Procedure Rules is not applicable under the said Probate and Administration Rules. Provisions of Rule 63 are mandatory and have to be complied with. From the foregoing observations, I do find that the application dated 29 November2001 is fatally defective. A preliminary objection can be entertained by the court at any stage of the proceedings and it is irrelevant that directions had been taken on how to proceed in this case. The court will normally look at the substance other than the form but in this case the applicant will not be locked out as he can bring another application. Besides the defects in the application are so grave that it is proper that the application has to be struck out. The application dated 29 November 2001 is accordingly struck out with costs to the beneficiaries.

74

This is a mistake. There is no such Act; it should be referring to the Probate and Administration Rules.

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In the Matter of the Estate of Eunice Wanjeri Kibia (deceased) Nairobi High Court succession cause number 926 of 1997 (Osiemo J) (Transfer of an asset under administration to a third party is protected under section 93 of the Law of Succession Act, and a revocation order will not affect such transfer) CASE NO. 262

The application was brought under section 93 of the Law of Succession Act and sought for an order that following the revocation of a grant of letters of administration the pieces of land that had been subdivided and transferred to the administrator and others to third parties who had bought them before the grant was revoked. It was held the revocation only affected properties that had not been transferred to third parties, since third party purchasers for value are protected under section 93 of the Act.

OSIEMO J: An application came before me on 27 March 2000 which sought orders that the grant issued to the petitioner having been revoked, the deceased’s property should revert to her name which application I granted on 31 March 2000. This application seeks orders to vacate and set aside my said order of 31 March 2000 as far as it related to the said parcels, which had been transferred to other persons. Namely; (a)

Guthunguri/Githunguri/2057

(b)

Githunguri/Githunguri/2058

(c)

Githunguri/Githunguri/2059

(d)

Githunguri/Githunguri/2062.

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This application is brought under section 93 of the Succession Act Chapter 160. The application is opposed on the ground that the grant was revoked because the Court, which issued it, has no jurisdiction to do so, and therefore the same was a nullity. Section 93 of the Law of Succession Act Cahapter160 protects the interest of a purchase of immovable property of any interest in immovable property in there vent the grant issued is subsequently revoked; it says; ‘A transfer of any interest in immovable property or movable property made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.’

In the circumstances the properties mentioned above; Githunguri/Githunguri/2057, 2058, 2059 and 2062 which had been transferred to lawful purchasers could not revert back to the estate of the deceased.

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This application therefore succeeds and accordingly varied as follows;- my order dated 31 March, 2000 is vacated as it relates to parcels of land known as;(a)

LR Githunguri/Githunguri/2057

(b)

LR Githunguri/Githunguri/2058

(c)

LR Githunguri/Githunguri/2059

(d)

LR Githunguri/Githunguri/2062.

In the Matter of the Estate of Wilson Wamagata (deceased) Nairobi High Court succession cause number 261 of 1998 (Githinji J) (Where there are defects in the process of confirming the grant, the court need not revoke the grant, instead it should cancel the confirmation to pave way for a fresh confirmation application)

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CASE NO. 263

The complaint was that the grant was confirmed fraudulently as the purported consent of two of the beneficiaries was forged, the application for confirmation was filed two days after the confirmation and the person seeking revocation of grant was not informed of the date for the hearing of the confirmation and did not attend court for the hearing of the confirmation. Evidently, one of the administrators was acting without the knowledge of the other three and had distributed the estate unilaterally allocating himself the prime properties. Some of the children of the deceased had also been disinherited. The court declined to revoke the grant; instead it set aside the confirmation, revoked the certificate of confirmation and directed that the process of confirmation be started afresh.

GITHINJI J: The grant was given to the applicant and three of his brothers on 16 April 1998. Paragraph 4 of the affidavit to support the petition shows that there are six beneficiaries (children of the deceased. It is admitted by both parties that Evans Ndungu and Damaris Wanjiru are abroad. Nelson Ng’ang’a claims that the two who are abroad had given the administrators to deal with the estate as they wished as deceased had distributed his properties. It is conceded that the two who are abroad did not attend court on 25 May 1999. However I notice their consent to confirmation dated 4 May 1999. That consent must be a forgery because the two are abroad. The two have not filed a disclaimer to the estate of their father. It is credible that applicant was not informed of the application for confirmation of the grant and did not attend court on 25 May 1999 because he would not be complaining of absence of confirmation in his first affidavit. Secondly, if he had consented to confirmation of the grant and mode of distribution he would not have failed to execute necessary documents to warrant the filing of an application dated

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27 May 1999 asking the Deputy Registrar to execute necessary documents. It is noteworthy that that application was filed only 2 days after the grant was confirmed. Thirdly, the record of the court made on 25 May 1999 does not show that the applicant attended the hearing of the application for confirmation of the grant. The letter dated 24 June 1999 from KCB shows that although grant was given to four persons some of them have been acting without the knowledge of the others. There is a serious complaint that the respondent distributed the estate unilaterally allocating himself and another prime properties.The affidavit to support the application for confirmation and which stipulates the mode of distribution was sworn by only the respondent whom there are four appointed administrators thereby, justifying the applicants complaint. The more serious observation is that two of the children of the deceased who are abroad have been disinherited. There is no evidence that they disclaimed their share of inheritance. There is also no evidence that deceased had distributed his estate and evidence of how he had distributed it. I do not find it necessary to revoke the grant but it is just and equitable that the confirmation be revoked in the circumstances of this case so that the estate can be distributed through consensus and if there is none through a determination by the court.

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Consequently I allow the application dated 6 August 1999 to that extent that and I order that: 1.

The order dated 25 May 1999 confirming the grant is set aside.

2.

The certificate of confirmation of the grant dated 25 May 1999 is revoked.

3.

The Land Registrar to rectify the Register of Land titles numbers Dagoretti/ Kinoo/207, Dagoretti/Kinoo/T.77/2, Dagoretti/Kinoo/365 and Dagoretti/ Kinoo/384/22 by deleting the names of the respective owners and registering the names of the four administrators – names Francis Kairu, john Muriu, Nelson Nganga and James Gitingu: Tarabeti Company, to rectify the register by deleting the name of Damaris Wanjiru and restoring the names of the four administrators in 2 above on the register.

4.

As it is unlikely that a concession distribution of the estate will be reached, Francis Kairu Wamagata and any other beneficiary not satisfied with the identity of the beneficiaries and share of each contained in the affidavit of Nelson Ng’ang’a sworn on 4 May 1999 to file an affidavit in protest as provided in Rule 40(6) of Probate and Administration Rules to the application for confirmation within 21 days.

5.

Thereafter the dispute to be fixed for hearing.

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In the Matter of the Estate of Thareki Wangunyu also known as Thareka Wangunyo Nairobi High Court succession cause number 1996 of 1999 (Khamoni J)

CASE NO. 264

(Section 76 of the Law of Succession Act is discretionary, and although a party may establish a case for revocation the court rather than revoke the grant may make other orders which fit the circumstances of the case). A widow obtained a grant of representation without disclosing one of her stepchildren and some of her own children as beneficiaries. The court held that the matter merited the revocation of the grant, but ordered that instead it would order that the stepchild left out be included in the list of beneficiaries without interfering with the grant.

KHAMONI J: In my view, I think the petitioner is an important administrator of the estate of her late husband and I do not think the objector would be a better substitute, in view of their imminent failure to co-operate in the administration of the estate in case they are made co-administrators.What is important is the objector to be included as a beneficiary of the estate to share in the distribution of the estate. Section 76 of the Laws of Succession Act, is not mandatory that the grant must be revoked. It says the grant may be revoked.

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There is evidence that the petitioner also left out three of her own children. Two married daughters, Loise Wanjiku and Esther Wanjuhi and one son James Ng’ang’a. but she explained that since the three are all to benefit under her, she did not see anything wrong with their exclusion which was done because they were not near. Consequently from the truth that the name of the objector was excluded from the list of beneficiaries to the estate of Thareki Wangunyu, there can be no doubt that the objector has proved her case that the petitioner made a false statement when she excluded the objector or that the petitioner concealed the fact that the objector was one of the beneficiaries to the estate. That is ground (b) and is sufficient ground for revocation of the grant herein…But now that the parties have come before me with a written consent to record as evidenced by their letter dated 23 June 2000 and filed in this court same day … I conclude this ruling by adding that the objector be and is hereby deemed included as one of the beneficiaries of the estate of Thareki Wangunyu (Deceased) in Form P and 5 herein dated 31 March 1999; and the grant of letters of administration intestate made on 1 February 2000 do remain unrevoked.

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In the Matter of the Estate of Robert Napunyi Wangila Nairobi High Court succession cause number 2203 of 1999 (Koome J) (A grant obtained on the basis of false information is liable for revocation)

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CASE NO. 265

A grant of letters of administration intestate was revoked on the grounds that the same had been obtained fraudulently.The deceased had died testate and an executor had been properly appointed under the terms of the will. The deceased was survived by a widow and children. The issue of the burial of the remains of the deceased had been contested in court, and this was a matter of national interest that was widely covered by the daily press. The fact that there was a valid will in existence came up at the burial trial, and so did the fact of his valid marriage to the widow. These facts were well-known to the stepsister of the deceased who subsequently petitioned for and obtained a grant of letters on the allegation that she was the sole survivior of the deceased.

KOOME J: From the material placed before this court, it is clear that the deceased left a written will dated 28 November 1989. The said will and testament of the deceased is duly witnessed by two witnesses and Willy Mutunga, Advocate is named as the executor. Paragraphs 7 and 8 of the said will and testament of the deceased bequeaths the properties comprising the house in South C to his daughter Zina Wangila and all his other property to his wife Grace Akinyi and other children that may be born. It would appear that the will was written before the birth of the second child Farouq Wangila was born in 1992. I am satisfied that the deceased was survived by a widow Grace Wangila who has a higher priority to be issued with the grant than the petitioner/applicant. But since there is a valid will and a named executor I find that the grant issued to the petitioner herein on 20 June 2000 was obtained fraudulently and through concealment of material facts essential to the law. The grant therefore issued to Margaret Kwamboka Moturi on 20 June 2000 be and is hereby revoked. Since the applicant has cross-petitioned for the grant of probate of written will, I will direct that the same be issued after the due notification in the Kenya Gazette.

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Contentious Probate

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In the Matter of the Estate of Abdehusein Ebrahimji, alias Abdehusein Nurbhai Adamji (deceased) Mombasa High Court succession cause number 91 of 2001 (Khaminwa J) CASE NO. 266

(Issues touching on the validity of a will are not suitable for determination in an application for revocation of grant.75A person claiming a share in the estate of a testate should move the court for reasonable provision under section 26 of the Law of Succession Act) The facts are set out in the ruling.

KHAMINWA J: The application dated 8 May 2002 is supported by affidavit sworn on 9 May 2002 and a further affidavit sworn on 6 September 2002 seeking to revoke the Grant of Probate of a written will. The grant was issued on 6 February 2002 to the executor named in the will. The ground upon which the application is made is that: 1.

The will appointing the executor is contrary to Muslim law of devolution of an estate of a deceased Muslim and as such null and void.

2.

The grant has been obtained fraudulently by means of making false statements and concealment from court of material facts.

3.

That the grant has been obtained by means of untrue allegation of essential fact.

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The facts in support are that the applicant is the cousin of the deceased and that the deceased was a Muslim by faith and therefore bound by Muslim laws of devolution and further that the applicant is entitled to ¾ of the deceased estate. And also that the executor failed to indicate to court that the deceased estate should be administered in accordance with Muslim law. And the executor has stated that she is the only beneficiary. An examination of the documents filed to support the petition for grant it will be seen that the deceased was aged 63 years at the time of his death in November 2000. The deceased had made a will on 15 November 1999 naming the executor and trustee of his will his wife. He also left all his personal and real property including his inherited property to his wife absolutely.

75

Contrast with situations in objection and revocation proceedings where the courts have made determinations as to the validity of a will; such as In the Matter of the Estate of Manibhai Kishabhai Patel alias Manibhai Kisabhai Patel – Deceased Nairobi (Milimani) High Court succession cause number 2340 of 1996 (Onyango-Otieno J), Mwathi v Mwathi (1995 – 98) 1 EA 229 (Gicheru, Kwach and Shah, JJA), In the Matter of the Estate of Naomi Wanjiku Mwangi (Deceased) Nairobi High Court succession cause number 1781 of 2001 (Koome J), In the Matter of the Estate of Humphrey Edward Githuru Kamuyu Nairobi High Court succession cause number 2322 of 1995(Visram J), Karanja and another v Karanja Nyanjugu and another v Karanja (2002) 2 KLR 22 (Githinji J), In the Matter of Estate of Jefferson Gathecha, Deceased Nyeri High Court Succession Cause Number 75 of 1995 (Juma J), and John Kinuthia Githinji v Githua Kiarie and others Court of Appeal civil appeal number 99 of 1988 (Gachuhi, Gicheru and Muli JJA). Given this body of judicial authority the court in the instant matter ought to have gone into the question of whether or not the will in question was valid.

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This will is not challenged except that the grant of probate is objected to by the applicant.76 The applicant swears that the deceased was a devout Muslim. This is not supported by any evidence. The document of will does not indicate so. It is quite common in these modern times for persons to change their faith or adopt a way of life which does not conform to his faith.77 Under section 5(1) of Succession Act Chapter 160 Laws of Kenya provides that any person who is of sound mind and not a minor may dispose of all or any of his free property by will and may thereby make any disposition by reference to any secular or religious law that he chooses. In this case the deceased did not choose to make disposition by reference to the Muslim law or any other religion. I have perused the petition of grant and supporting affidavit. The executor stated clearly that she was petitioning for probate because she was named executor in the will. This is a true statement. She said she was the sole beneficiary named in the will. This is true. It is not fraudulent to make such statements. I therefore find that she did not obtain the grant by not disclosing any material facts or by fraud or by making false statement. There is provision under Part III of the Succession Act where court may make provision for the dependants of a deceased whether there is a written will or not. The application has to be made to court and this does not involve the revocation of the grant. This the applicant has not done.78 Serious argument raised by counsel for the applicant on issue of Mohammedan law of inheritance authorities were quoted on prominent authorities. It is my view these arguments are relevant to a suit for annulment of the will and not on this present application.79 I find that the application has no merit and the same is dismissed with costs. 76

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77

78

79

With respect, it is not clear what exactly the court meant by saying that the will was not being challenged. Earlier in the ruling the court had stated that one of the grounds raised in support of the application for revocation was that the will, upon which the grant was predicated, was contrary to Muslim law of devolution and therefore it was null and void. Clearly the validity of the will was an issue. Where the will upon which a grant is made is invalid, the process upon which the grant is made becomes defective. See Mwathi v Mwathi and another [1995-98] 1 EA 229, (Gicheru, Kwach and Shah JJA). This is a conclusion that the court should only come to upon hearing evidence from the parties. It is unsafe and unjust to draw such a conclusion purely on the basis of documentary evidence. The issue whether the deceased was a Muslim infact raises a question as to the court’s jurisdiction. One would have expected that the court would examine the provisions of section 2(3) (4) of the Law of Succession Act which map out the scope of the application of the Law of Succession Act to the estate of a person who dies a Muslim. Whether a person dies a Muslim and therefore Islamic law applied to them is a matter of fact that can only be disposed of upon hearing oral evidence from the parties. One cannot determine in question whether a person was a devout muslim or not by merely examining documents filed in court. Part III of the Law of Succession Act does not apply to the estate of a Muslim, and therefore this was a remedy that was not available to the applicant. Needless to say that heirs to the estate of a deceased Muslim are entitled to fixed shares in the estate, which is not a matter that the probate court can address under section 26 of the Law of Succession Act, although the High Court in Anarali Museraza (as a minor by his next friend) Mohamedtaki A P Champsi v Mohamedali Nazerali Jiwa and others (1966) EA 117 (Wicks J) appeared prepared to hold that a Muslim could dispose of the fixed shares by will so long as the same was willed to those entitled under Islamic law. The Law of Succession Act does not provide a special procedure for the annulment of a will. The issue of invalidation or annulment of a will is dealt with during the hearing of objections under section 68 and revocation proceedings under section 76 of the Law of Succession Act. See Mwathi v Mwathi and another [1995-98] 1 EA 229, (Gicheru, Kwach and Shah JJA), Karanja and another v Karanja, Nyanjugu and another v Karanja [2002] 2 KLR 22 (Githinji J), In the Matter of the Estate of Naomi Wanjiku Mwangi (deceased) Nairobi High Court succession cause number 1781 of 2001 (Koome J), In the Matter of the Estate of Philly Nyarangi Otundo, (deceased) Nairobi High Court succession cause number 2078 of 1997 (Aluoch J) and In the Matter of Manubhai Kishabhai Patel alias Manibhai Kishabhai Patel, deceased Nairobi (Milimani) High Court civil case number 2340 of 1996 (Onyango-Otieno J).

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In the Matter of the Estate of Lydia Karuru Ahmed (deceased) Mombasa High Court Probate and Administration 122 of 2001 (Khaminwa J) CASE NO. 267

(Where the administrators appear to be exercising powers other than those conferred upon them by the grant, engage in disputes amongst themselves and have not rendered accounts of the administration of the estate, the court may on its own motion revoke the grant) Facts are set out in the ruling of the court.

KHAMINWA J: The applicant is one of the two Administrators of the Estate of Lydia Karuru Ahmed who died on 11 May 2001. A limited grant was issued to the two administrators on 3 August 2001 for the purpose of filing a suit and seek orders to preserve the property of the deceased. A full grant has not yet been applied for. It is clear the administrators have misunderstood the powers granted to them. They are now engaged in disputes as to how the income of the estate has to be utilised. They have not rendered any accounts of the affairs of the estate to date. Upon perusing the application now presented to this court by Joyce Hawa, one of the administrators and the affidavit in support and in opposition, I am convinced that the fairest manner to resolve the dispute is to revoke the limited grant issued to these two Administrators and in the interest of the beneficiaries of the estate, some of whom are minors, a full grant be taken out to enable the proper administration of the estate and fair distribution of the assets

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For these reasons the application dated 1 October 2002 is allowed. Orders granted as prayed. Each party to bear own costs. Further, it is ordered that the two administrators shall file accounts regarding the affairs of the estate from 3 August 2001 when they were appointed to-date within the next 21 days.

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In Re Estate of Murimi (Deceased) [2002] 2 KLR 158 (Khamoni J)

CASE NO. 268

(An application for revocation of a grant of representation ought to be brought by way of a Summons for Revocation of Grant, and not by way of Notice of Motion or Chamber Summons) An application for revocation of grant was brought by way of a Notice of Motion. It was held that this was not the proper procedure for seeking revocation of grant. The motion was struck out since it is not the procedure envisaged by the Probate and Administration Rules, specifically by rule 44

KHAMONI J: Properly, the application for revocation of grant should be by way of Summons for Revocation or Annulment of Grant being Form 107 filed under section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules. Those provisions do not make room for the application being brought by way of a Notice of Motion or Chamber Summons or any other form.

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The filing of the summons in Form 107 is done together with the filing of a supporting affidavit in Form 14. After the applicant has filed those two forms, the Registrar of the High Court issues Form 70 giving notice to the applicant to attend court in chambers for the giving of directions as to which persons, if any, should be served by the applicant, with a copy of the summons for revocation and of the affidavit in support and as to the manner of effecting service. The persons who would be named to be served would include the deceased’s personal representative, beneficiaries or other dependants and any other person who any be affected by the revocation of grant. If the grant sought to be revoked was made by a Magistrate’s Court, the directions given at this stage should also state that the relevant case file from the Magistrate’s Court be brought to the High Court to be filed in the High Court case file. It is important to note that service of the summons for revocation and its supporting affidavit together with a notice in Form 68 upon the people referred to above gives them the opportunity to file their respective affidavits in reply stating whether they support or oppose the application and why. After the people served have filed their papers, and the magistrate’s relevant case file has been brought, if the grant was made in a Magistrate’s Court, the cause may be set down for determination where it is felt there is no need for further directions. otherwise the cause should be set down, when the applicant together with the persons served will attend court, for further directions as to the facts to be proved and as to the mode of hearing, it being advisable to prove the facts listed or whether submissions on the basis of filed affidavits will suffice. When further directions have been taken, the summons for revocation may be set down for hearing. In this matter before me, no summons for revocation in Form 107 supported by an affidavit in Form 14 have been filed in Succession Cause Number 619 of 2000

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under section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules and Forms 70 and 68 have not therefore been used. In short, the procedure has not been followed. It follows that there is no summons for revocation of grant for me to properly hear under the provisions of the Law of Succession Act and the rules thereof. In the Matter of the Estate of David Kamethu alias David Maina Kinyanjui (Deceased) Nairobi High Court PandA Cause Number 1301 of 2002 (Koome J)

CASE NO. 269

(A grant is liable for revocation for failure to disclose in the petition some of the survivors of the deceased).

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The application for revocation was by the brothers of petitioner, with respect to the estate of their deceased unmarried brother. The petitioner had in his application stated that he was the only person who survived the deceased. It was held that the grant was obtained fraudulently by the making of a false statement of material fact. KOOME J: The petitioner in this cause petitioned for the grant of the letters of administration in respect of the deceased estate. In form P A5, he indicated that he is the only surviving brother of the deceased. He also produced a letter from the Assistant Chief Ngegu sub/location in Kiambu which introduced the petitioner as the only survivor of the deceased. On the basis of that information a grant of letters administration was issued to the petitioner on 14 August 2002 and subsequently confirmed on 18 June 2003. In the proceedings of 18 June 2003 the petitioner confirmed that he was the only brother of the deceased. It was not until 8 June 2003 when the petitioner uprooted and started interfering with the deceased parcel number Kiambaa/Kanuga/1192 when the objectors visited the Lands Office in Kiambu and were shocked to learn that there was a succession cause. The objectors are the other three brothers of the deceased, they are also entitled to the deceased estate in equal priority with the petitioner. I have considered the application seeking revocation of the grant as well as the supporting affidavit. When the cause came up for the hearing the petitioner had not complied with the order directing him to file a replying affidavit. He however admitted in court that the three objectors are his brothers. In this regard therefore, I find that the grant herein was obtained fraudulently by the making of a false statement of material fact. Accordingly the grant issued herein and all the consequential orders and transactions carried out pursuant to the grant issued and confirmed on 18 June 2003 and in particular transfer of Kiambaa/Kanuga/1192 are hereby nullified.

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In the Matter of the Estate of Mutambu Ndekei (deceased) Nairobi High Court succession cause number 2688 of 2002 (Koome J)

CASE NO. 270

(A grant is liable to be revoked on account of irregularities in the making of the grant). The application for revocation in this matter was made by a daughter-in-law of the deceased (that is, the widow of a deceased son of the deceased), on the grounds that she had not consented to the petition being lodged by the grant holder, her sister-in-law. It was held that the grant had been obtained through a defective process and it was ordered revoked.

KOOME J: According to the information disclosed by the petitioner in form P and A 5 the deceased was survived by seven married daughters as well as the applicant who is described as a wife of the deceased son…The grant was made to Anne Wangari Kamau and confirmed.

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… The applicant did not give her consent. The applicant now applies for the grant to be annulled since the proceedings were conducted without her participation. Moreover, the confirmed grant has excluded her and she as a person having equal priority as the applicant shall be prejudiced. … I am aware of the provisions of rule 27 of the P and A rules whereby the court may grant the letters of administration to any person to whom the grant, or may be required to be made under the Act. However upon the grant of letters of administration rule 40(8) of the P and A rules clearly provide that all the dependants or other persons who may be beneficially entitled to the deceased estate shall file their consent or affidavit of protest. It is quite clear that the applicant herein was not given an opportunity to file her consent to affidavit of protest. The applicant has been able to persuade this court that the grant of letters of administration was contained and confirmed irregularly. I accordingly allow the application to revoke the grant that was issued to the respondent and all consequential transactions effected with the grant including transfer of land reference Chania/Ngorongo/33.

W Musyoka

Contentious Probate

489

In the Matter of the Estate of Muriranja Mboro Njiri Nairobi High Court succession cause number 890 of 2003 (Kamau Ag J) (A grant is liable for revocation where the proceedings leading up to its making are defective and irregular) CASE NO. 271

A grant was made to the two widows of the deceased. It however transpired that one widow had not signed the petition or all the other relevant documents. She did not sign any consent to allow the other widow to apply for the grant nor was she cited as required. The court on its own motion found that the grant was not made in accordance with the laid down statutory procedures, and revoked it.

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KAMAU AJ: After having heard the counsel for the applicants and the respondent, I am satisfied that Grant obtained in Nakuru court was not made in accordance with the laid down statutory requirement. The consent of Milka Njeri Muriranja widow of the deceased was not obtained. She never participated in the proceedings in that she never executed any of the mandatory forms to support the application. She never thus participated in the proceeding as the law would require of any intending administrator. In the absence of Milka’s physical participation it would have been expected that the applicant in the Nakuru cause would proceed and apply for citations. This was never done. In view of the ensuing anticipated continuing trust under section 58 of the Law of Succession Act, it was necessary there be two administrators in the application for grant. That Milka never signed the pleadings certainly offended this requirement. The gazettement of the application, though a prima facie notice to all, does not operate to prohibit an application for revocation under section 76 of the Law of Succession Act. This present application is therefore valid on record. Under rule 26 of the Probate and Administration Rules, consent of heir in equal degree is mandatory. The consent was never obtained from MILKA. Citations were never obtained and MILKA never signed any of the application forms although her name was disclosed.This disclosure amounts to a reasonable expression of good faith in respect of the applicant in the Nakuru Cause. It would be unjust to rule concealment. In the circumstances mentioned above and upon its own motion, this court hereby revokes the grant issued under Nakuru High Court Succession Cause Number 108 of 2001 to Mary Nyambura Muriranja and Milka Njeri Muriranja on the grounds that the proceedings to obtain the grant were defective in substance.

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In the Matter of the Estate of James Kiarie Muiruri (deceased) Nairobi High Court succession cause number, 2413 of 2003 (Koome J)

CASE NO. 272

(A grant is liable to be revoked for irregularities and especially where a grant is made in respect of two estates). The applicants were the siblings of the grant holder, who had obtained a single grant for the estates of his deceased father and deceased mother without first obtaining the consents of his brothers and sisters.The court found it was irregular to have one grant in respect of two estates, and also noted the lack of the siblings’ consents to the grant holder’s application for the grant, and revoked the same.

KOOME J: I have given due consideration to the application and all the evidence adduced for or against the revocation of the grant. It is clear from the records that the consents of the beneficiaries were not obtained when the grant was issued and when it was confirmed. It would appear the grant was irregularly issued in respect of two deceased persons. There was no plausible reason why grant of representation would be issued in respect of two deceased persons in one grant. Another anomaly with the grant is in regard to the confirmation which was done only after six weeks instead of the statutory period of six months; it is also not clear from the records how the application for confirmation was made. There is no application under section 71(3) on record.

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In view of the above findings, the grant made herein and confirmed on 3 April 2003 and all consequential transactions done pursuant thereto are hereby revoked. Since the procedure of obtaining grant was totally defective, the parties are at liberty to make fresh application for separate grant of letters of administration in respect of each estate.

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Matheka and another v Matheka Nairobi [2005] 1 EA 251 (Omolo, O’Kubasu and Onyango-Otieno JJA) (An order for revocation of grant by the court on its own motion must be based on the grounds for revoking grants set out in section 76 of the Law of Succession Act)

CASE NO. 273

The court heard an objection to grant of letters, a crossapplication, an application for detailed accounts and reasonable provision and a protest to confirmation filed by a person claiming to be a child of the deceased born out of marriage, brought against the administrators of the intestate estate of the deceased, the administrators being widow and daughter respectively of the deceased. The court found that the applicant was a son of the deceased, and upon that finding, and in the absence of an application for revocation of grant, decided to revoke the grant on its own motion. On appeal the Court of Appeal held that where a court chooses to revoke a grant on its own motion the said revocation must be founded on the grounds for revocation of grant set out in section 76 of the Law of Succession Act.

OMOLO, O’KUBASU AND ONYANGO-OTIENO JJA: The main complaint in this appeal is that Aluoch J was wrong when she proceeded to revoke the grant which had been issued to the appellants when she proceeded to revoke the grant which had been issued to the appellants. The learned Judge stated that she had decided on her own motion under section 76 of the Succession Act to revoke the Grant of Letters of Administration Intestate issued to the appellants. Section 76 of the Law of Succession Act (Chapter 160 Laws of Kenya) provides: Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

’76.

a grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decided either on application by any interested party or of its own motion(a)

that the proceedings to obtain the grant were defective in substance;

(b)

that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c)

that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d)

that the person to whom the grant was made has failed, after due notice and without reasonable cause either(i)

to apply for confirmation of the grant within one year from the date thereof, or such period as the court has ordered or allowed ; or

(ii)

to proceed diligently with the administration of the estate; or

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(iii)

(e)

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to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

That the grant has become useless and inoperative through subsequent circumstances.’

From the foregoing, it is clear that a grant may be revoked either by application by an interested party or on the court’s own motion. but even when revocation is by the court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement or by concealment of something material to the case, or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate.The grant may also be revoked if it can be shown to the court that the person to whom the grant has been issued has failed to produce to the court such inventory or account of administration as may be required. Mr Thangei submitted that the grant was properly revoked on account of concealment of assets of the deceased. But what was the position before learned Judge? The protest by the respondent was that he was the son of the deceased and hence a beneficiary. He, however, went further by insisting that he be made one of the administrators. We have carefully considered what was before the learned Judge and it would appear that the respondent’s main objection was that as he was a beneficiary as the son of the deceased with another woman he should have been included as an administrator. On the issue of grant of letters of administration, we would refer to section 66 of the Law of Succession Act which provides:

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‘66.

When a deceased has died intestate, the court, shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference (a)

surviving spouse or spouses, with or without association of other beneficiaries;

(b)

other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c)

the Public Trustee

(d)

Creditors. Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.’

In view of the provisions of sections 66 and 76 of the Law of Succession Act and the facts of this case which do not appear to be in any dispute as relates to the status of the respondent vis-à-vis the deceased, we are satisfied that the learned judge (Aluoch J) was in error when she proceeded to revoke the grant. We hasten to add that the learned judge had the noble intention of protecting the interest of the respondent who, in her view, was a beneficiary of the deceased’s estate, but that noble intention

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could not, in our view, be achieved by revoking the grant. All the matters upon which the respondent relied before Aluoch J, for revocation of the grant issued by Githinji J had been placed before the latter judge and had been considered by him. Nothing new was brought before Aluoch J to warrant the revocation. For the foregoing reasons, we allow this appeal and set aside the High Court order given on 27 June 2002 and remit the cause for hearing in the superior court as to the respondent’s protest for inclusion and provision as a beneficiary/dependant of the deceased. We further order that the grant of letters of administration given on 27 October 1999 do proceed to confirmation showing the assets identities and shares of those beneficially entitled. Costs shall be borne by the estate. ***

13.4 REVOCATION

AND

CONFIRMATION

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Some of the revocation applications that find their way to court apparently touch on issues relating to the confirmation process. In such cases the complaint of the party would not be on the integrity of the grant making process or the manner the administrator has gone about administering the estate, but that the confirmation process was not in conformity with the law. The courts have stated in Cases numbers 133, 263, 274, 275, 276 and 277 that the revocation process is not the best way of addressing those concerns, the right procedure in such cases should be to apply for cancellation of the certificate issued upon the confirmation of the grant.

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In the Matter of the Estate of Laban King’ori Macharia (Deceased) Nairobi High Court probate and administration cause number 16 of 1988 (Waweru J) (Where a party is only complaining about the confirmation process or the distribution of the estate there is no reason to disturb the grant, the confirmation ought to be nullified instead)

CASE NO. 274

The court was confronted with a revocation application where the applicants were complaining about the confirmation process.The deceased died testate, and a grant of probate was duly and properly made. Confirmation of the grant was subsequently sought and obtained. The applicants in the revocation proceedings complained that certain requirements of rule 40 of the Probate and Administration Rules on the confirmation application were not complied with and that the confirmation was not in conformity with the deceased’s instructions in his will as to the distribution of his residuary estate. It was held that since the grant of probate had been properly made there was no reason to disturb it, but the confirmation of the grant was found to be unprocedural. The said confirmation was set aside and the certificate of confirmation based on it was cancelled.

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WAWERU J: Let it be known from the outset that Nelly and Francis are not challenging the validity of the deceased’s will. This was made clear by their learned counsel at the time of taking directions and also during the hearing of the application. I have seen in the court record written consents by both Rishiba and Nelly dated 13 October 1988 by which they, in effect, renounced their right as named co-executors of the deceased’s will to apply for grant in favour of the third executor, the petitioner. Those consents were executed before an advocate of this court who certified in the documents themselves that the contents thereof had been read over and explained to them in the Kikuyu language before he executed them. It is true that renunciation/consent was made/given some months after the grant had been issued to the petitioner. But in the circumstances of this case I find nothing inherently sinister in this. Rishiba and Nelly were old and illiterate ladies living in Murang’a, and may well have felt that they would not manage the hustle and bustle of following up the matter in court and elsewhere. I also note that the affidavit filed in support of the summons filed on 27 October 1988 for confirmation of grant was sworn jointly by the three executors and duly attested by an advocate of this court, again under certificate similar to that already indicated above. In the circumstances I do not find that there was breach of rule 7(6) of the Probate and Administration Rules as urged, which sub rule, in any event, is applicable where the grant sought is one of letters of administration with the will annexed. In this case the petition was for probate of a written will. Likewise there was no obligation for the petitioner to disclose in

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the affidavit sworn in support of the petition the names, addresses, marital status and descriptions of all surviving spouses and children of the deceased. That requirement is necessary and mandatory in cases of total or partial intestacy. see rule 7(1)(e) of the P and A Rules. However, disclosure of the names, ages and addresses of the deceased’s children was required when applying for confirmation of the grant. See rule 40(3)(a), P and A Rules. I find no such disclosure in the affidavit (already referred to) sworn by the three executors in support of the summons for confirmation of grant. This was a breach of a mandatory requirement. Likewise, consent of the deceased’s dependants (as defined in section 29 of the Law of Succession Act. Chapter 160) was required by Rule 40(8), P and A Rules before the grant could be summarily confirmed as was done in this case. It is common ground that the consents of such of the deceased’s children as were adults was neither sought nor obtained. In addition to the above –stated shortcomings, Nelly and Francis have argued that the certificate of confirmation of grant is not in consonance with the deceased’s will. Even a casual perusal of both the will and the certificate of confirmation of grant will bear out this assertion. The only properties that the deceased bequeathed outright in his will were two: (a)

A ‘piece of land situate at Chinga Location in Nyeri District’ – to Rishiba and John King’ori to be divided between them equally for their use absolutely; and

(b)

A ‘piece of land situate at Ihoe in Murang’a District’ – to Rishiba and Nelly to be divided between them equally for their own use absolutely.

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The residuary estate, which must comprise all other assets the deceased died possessed of, was provided for in clauses 3 and 4 of the will. There are detailed instructions in those clauses regarding the residuary estate. Clause4(c), which is the very last instruction in the will, is in the following terms: ‘4(c) the trustees whether appointed or substituted as provided by the law that will be in force at the time shall hold my residuary estate in trust in equal shares for my three houses provided that if at any time my trustees find it fit to distribute my residuary estate the distribution shall be by houses equally each shall be entitled to an equal share whether it has more children or less than the others.’

If the schedule in the certificate of conformation of grant was prepared in intended execution of the above sub clause, it is apparent that the deceased’s instructions were not followed. In that schedule the executors were each allocated absolutely certain properties. it is not stated that they are to hold these properties in trust for their respective siblings or children as the case may be. There were also no valuations done of the properties comprising the residuary estate to ensure that there was equitable distribution between the deceased’s three houses as intended. It is also clear that certain assets like shares in some companies were omitted. In all these circumstances then, what is to be done? I have already indicated that the grant of probate was properly and duly obtained by the petitioner/executor. But confirmation thereof was done without regard to mandatory provisions of the law as already indicated above. The order confirming the grant must therefore be set aside and the certificate of confirmation of grant cancelled. It is so ordered. The application to confirm the grant must be reheard after the petitioner/executor satisfies the

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requirements of the law, preferably by way of supplementary affidavit. All the surviving children of the deceased and of course the surviving widow shall be at liberty to make representations at the rehearing of the summons for confirmation of grant. This will give the family an opportunity to sit down and agree on distribution of the residuary estate, regard being had to the instructions of the deceased contained in the will and also to what has transpired in all these years since the grant was confirmed. In Re Estate of Gitau (deceased) [2002] 2 KLR 430 (Khamoni J) (The revocation proceedings are not the appropriate procedure for a party who is unhappy with the mode of the distribution of the estate and is only interested in challenging the distribution) CASE NO. 275

The applicants moved the court under section 76 of the Law of Succession Act asking for revocation of the grant, but essentially raising issues relating to the distribution of the estate. The application was refused. The court held that an application under section 76 of the Law of Succession Act is not the proper procedure for challenging the mode of the distribution of the estate. A party unhappy with the mode of distribution should move the court under the relevant procedure, but should not seek the revocation of the grant.

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KHAMONI J: ... I look at the summons dated 29 September 1998 for annulment of grant as filed by the objector and note that he is relying on the grounds set out in section 76 of the Law of Succession Act that the grant was obtained by means of untrue allegation of fact and that the grant was obtained fraudulently by the concealment from the court of material facts and that the transfers effected by the administrator were fraudulent. But when I read those grounds together with the objector’s affidavit in support of the summons I find that the said affidavit does not in fact support the summons as the summons is against the petition and issuance of the grant while the affidavit purported to support the summons says nothing against the petition for the issuance of the grant. The affidavit is complaining about the distribution of the estate of the deceased. Distribution of the estate comes during the proceedings to confirm the relevant grant and a party dissatisfied with the distribution may not necessarily be dissatisfied with the grant of letters of administration and vice versa. That being the position, it becomes unreasonable for a person dissatisfied with the distribution of the estate only to proceed to ask for revocation or annulment of the grant which, as in this case, has nothing wrong. While section 76 of the Law of Succession Act should therefore be relied upon to revoke or annul a grant, it is not proper to use the same section where the objector is challenging the distribution only. There are relevant provisions to be used for that purpose and section 76 is not one of them.

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In Re Estate of Ngugi (Deceased) [2002] 2 KLR 434 (Khamoni J)

CASE NO. 276

(Where a party is unhappy with the confirmation process, it is not prudent to seek revocation of the parent grant; instead the confirmation process should be dealt with without affecting the parent grant) A co-administrator sought revocation of grant saying that the same was obtained without his knowledge. It transpired that he had consented to the application for confirmation and that there was no protest to it. It was held that where a party is complaining about irregularities in the confirmation, it is not prudent to seek revocation of the parent grant.

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KHAMONI J: It follows that when Mr Mugo says that his client does not want the grant of letters of administration issued on 7 February 1995 revoked, the applicant finds nothing wrong with that grant and that therefore the grounds relied upon by the applicant as set out in the body of his summons dated 11 July 2001 have no genuine basis. It seems to me that the applicant being desirous of filing an application to complain about the respondent’s application for confirmation of grant and the issuance of the certificate of confirmation thereof, went to section 76 of the Law of Succession Act and blindly picked out grounds (a) to (c0 without stopping to think whether those grounds are really relevant for the application he was making. As a result the affidavit dated 11 July 2001 filed by the applicant in support of this summons dated 11 July 2001 does not support the summons. The summons is complaining about the grant while the affidavit is only complaining about what happened during the application for confirmation of the grant. It is a situation similar to a case where the evidence adduced does not support the charge, if criminal, or does not support the plaint, if civil. The applicant having relied upon the grounds in section 76 of the Law of Succession Act never cited that section nor did he cite any provision of the law. Where a person is aggrieved by what happened during the application for confirmation of a grant of letters of administration, there are relevant provisions of the law to use to have the resulting certificate of confirmation revoked or set aside or rectified. I am not the applicant’s advocate and should not say more than that. I should however add that it is not proper to use section 76 or talk about revocation of grant in those cases. In other words where the complaint of the applicant relates to the certificate of confirmation only, revocation or annulment of the relevant grant should not be asked for in the application as the certificate of confirmation of a grant can be dealt with without affecting the validity or soundness of the parent grant of letters of administration or the parent grant of probate. From what I have been saying above therefore, not only do I find this summons dated 11 July 2001 lacking in merit but also find it improper and incompetent.

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In the Matter of the Estate of John Kamau Gichuhi (deceased) Nairobi High Court succession cause number 833 of 2003 (Waweru J) (Grandchildren are entitled in equal shares to the estate of their deceased grandfather where their own parents are dead. Rather than revoke a grant, even where a case has been made out for such revocation, the court may instead vacate the confirmation so as to re-open the estate for distribution following the inclusion of the objectors in the list of beneficiaries)

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CASE NO. 277

The applicants in this revocation matter, inappropriately described as objectors in the ruling, were granddaughters of the deceased, and their complaint was that administrators in their petition for grant omitted them from the list of beneficiaries although they were entitled to the estate equally with them. The administrators defence was that the applicants were not entitled to a share in the estate since they were married women. The court held that as grandchildren of the deceased, in the absence of the children of the deceased, they were entitled to a share in the estate of their deceased grandfather. The law did not allow discrimination of female children or grandchildren with respect to them inheriting their father or grandfather. The court further decided that although a case had been made out for revocation of grant, it would instead cancel the certificate of confirmation and the matter be thereafter heard afresh on the confirmation of the grant.

WAWERU J: The objectors main complaint is that being the grandchildren of the deceased, just as the respondents and other persons adjudged to be beneficially entitled, they were also beneficially entitled to the deceased’s estate. It not denied by the respondents that the objectors were also grandchildren of the deceased. It would appear that the deceased’s children pre-deceased him. The respondents and other persons inherited his estate through their deceased parents (children of the deceased). The objectors were equally entitled to inherit their parents’ share in the deceased estate. The respondents answer to the objectors’ claim is that they were already married and therefore not entitled to inherit, apparently under Kikuyu customary law. The death certificate of the deceased discloses that he died on 3 December 1983. This was after the commencement of the Law of Succession Act, Chapter 160, on 1 July 1981 (Legal Notice number 93 of 1981). The law applicable to the deceased’s estate was therefore Chapter 160 aforesaid, which does not discriminate against female children or grandchildren, married or otherwise, of a deceased person. . The objectors should have been consulted when the grant was sought. I therefore find that there was concealment from court of a material fact, to wit, that the objectors were also entitled as beneficiaries of the deceased’s estate.

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I will therefore allow this application, but only to the extent of setting aside the order of confirmation of grant dated 12 August 1999 and cancellation of the certificate of confirmation of grant of the same date. Any transactions involving land parcel LR GITHUNGURI/GATHANGARI/252 pursuant to the said certificate of confirmation are hereby cancelled. All this will have the effect of re-opening the issue of distribution to enable the objectors to make representations in regard thereto. The application for confirmation of grant shall thus be reheard after service thereof upon the objectors. For the avoidance of doubt, the grant itself as issued and amended is not revoked and remains in place. ***

13.5

REVIEW

OF

PROBATE ORDERS

AND

DECREES

Where the orders or decrees issued by the court in succession causes have errors on the face of the record or a new and important piece of evidence has been discovered subsequent to the making of the order or decree, the court may on the application of a party review the order or decree on these grounds or for any other sufficient reason. The application is provided for under Order XLIV of the Civil Procedure Rules, one of the provisions imported into succession practice through rule 63 of the Probate and Administration Rules. The principles governing review in succession causes are the same as those applied in the pure civil matters governed by the Civil Procedure Act and Rules, as shown in cases numbers 278 and 279. In the Matter of the Estate of Hannah Nyangahu Mwenja (Deceased) Nairobi High Court probate and administration cause number 901 of 1996 (Koome J)

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CASE NO. 278

(Review orders cannot be granted to disentitle a party to inheritance) Review was sought of the orders of the court regarding the distribution, subdivision and transfer of certain parcels of land. It was held that orders cannot be reviewed to change their character and disentitle a party to their right of inheritance.

KOOME J: In this regard, this court has the inherent power to give effect to its own orders as may be expedient and to prevent abuse of the process. In my view, judgement or ruling cannot be reviewed to change its character and disentitle a party his right of inheritance. That is a matter that can properly be handled on appeal. I say this because the judge heard all the parties and after considering their evidence, issued the orders, I consider deleting the name of the first respondent as a major departure and I would be changing the judgement to disinherit the first respondent of the property replying on the applicant’s application and supporting affidavit.

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However, adjusting the ruling to ensure that the orders of the court can be given effect is like amending the judgement or what is known as effecting the slip rule. The land in this case should be distributed on pro rata basis to ensure that each party gets a pro rata portion after Mary Mugure Mutoto’s ¼ of an hectare. That is to say that each of the 4 beneficiaries’ portions be reduced on a pro rata basis and the District Surveyor do work out the appropriate subdivision. The ruling of 16 May 2001 is hereby reviewed and each of the four beneficiaries’ portions will be reduced on pro rata basis to accommodate the co-owner. In the Matter of the Estate of Waruru Kairu Nairobi High Court succession cause number 2525 of 1997 (Koome J) (An extract of the order or decree sought to be reviewed must be attached to the application for review under order XLIV of the Civil Procedure Rules)

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CASE NO. 279

The court was faced with an application for review under Order XLIV of the Civil Procedure Rules, on the ground that there was an error apparent on the face of the record. The court was not convinced that there was an error apparent on the face of the record and dismissed the application for review. It was pointed out that in an application for review under order XLIV of the Civil Procedure Rules it is a mandatory requirement that an extract of the order or decree sought to be reviewed must be attached to the application.

KOOME J: I have given due consideration to the application for review. I have also given attention to both rulings by Mulwa J and Kuloba J and more so the provisions of section 40 of the Law of Succession Act which deals with the intestate polygamous estates. It is imperative that the deceased estate be shared equally amongst the houses, according to the number of children in each house but also adding any wife surviving him as an additional unit to the number of children. The intention of the court in the two rulings was to have Alice treated like all other beneficiaries of the deceased children from the third house. Hence be allocated an equitable share of the deceased properties in both parcels of land. Accordingly, I see no error on the face of the record. Secondly, this application for review is brought under Order 44 of the Civil Procedure Rules that the party who wishes to apply for a review of a decree or order it is mandatory for the party to draw up the decree or order that is sought to be reviewed and attach it to the application for review. Refer to the case of Gulamhussein Mulla Jiranji and another v Ebrahim Julla Jiranji and Another CA for East Africa 1929/1930 (Law refer of KenyaVXII). In this regard, the applicant did not draw up the order or decree as none was attached to the application for review. The upshot of the above is that the applicants summons for review dated 28 November 2003 should fail. ***

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13.6 APPLICATIONS UNDER SECTION 9

OF THE

501

PUBLIC TRUSTEE ACT

For estates that are under administration by the Public Trustee, there is provision under section 9 of the Public Trustee Act for the making of relevant applications. Section 9 of the Public Trustee provides that ‘9(1) At any time after a grant of letters of administration to the Public Trustee under this Act, any person to whom the court might have committed administration if no such grant had been made may apply to the court for the revocation of the grant and for a grant to himself of probate of the will or letters of administration; but no such application shall be made until seven days after notice in writing of intention to make it has been given to the Public Trustee. (2) Upon such application the court, after hearing the Public Trustee if he appears, may revoke the grant of the Public Trustee and grant probate or letters of administration to the applicant subject to such limitations and conditions as the court thinks fit: Provided that letters of administration granted to the Public Trustee shall not be so revoked unless the application is made within six months after the grant to the Public Trustee and the court is satisfied that there has been no unreasonable delay in the making of the application, or in transmitting the authority under which the application is made.

Cases numbers 280 and 283 are illustrations of two of the various applications that could be made under section 9 of the Public Trustee Act. Hortensiah Wanjiku Yawe v Public Trustee Court of Appeal for East Africa civil appeal number 13 of 1976 (Wambuzi P, Mustafa and Musoke JJA)

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CASE NO. 280

(Where the court finds that a woman who cohabited with the deceased was a wife following presumption of marriage, it follows that such a woman is to be treated as a widow for the purposes of succession) The Public Trustee moved the High Court for directions on several issues touching on the estate of the deceased, among them whether the deceased was lawfully married to the appellant. The High Court found that she was not the deceased’s wife, hence the appeal. On appeal, the Court of Appeal found that the appellant was not married to the deceased under any system of law, but presumed marriage between the appellant and the deceased from the circumstances of their prolonged cohabitation.

MUSTAFA JA: Paul Makumbi Yawe, a Muganda by birth, and resident in Nairobi, was killed in a motor vehicle accident in Uganda on 2 May 1972. He was employed as a pilot by the East African Airways Corporation at the time of his death. He died intestate. The Public Trustee of Kenya was granted letters of administration to his estate in Kenya on 4 July 1972.

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The report of the death of the deceased to the Public Trustee was made by Hortensia, the appellant, who claimed that she was the deceased’s widow and that she had four children with him. Upon enquiries being made by the Public Trustee, the Administrator General of Uganda supplied certain information about the Ugandan claimants to the estate. Then the Ugandan claimants, by their advocate, gave their particulars to the Public Trustee and also alleged that the appellant was not married to the deceased. The Public Trustee, in January, 1973 by way of petition, applied to the High Court for directions to determine the following questions: (1)

The domicile of the deceased at the time of death,

(2)

Was the deceased properly married to the appellant,

(3)

Were the appellant’s four children entitled to a share of the estate,

(4)

Which of the relatives should share in the estate,

(5)

The amounts to be paid to the rightful claimants.

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The High Court (Kneller, J.) after a long hearing decided the questions as follows: (1)

The deceased was domiciled in Uganda.

(2)

The appellant was not the deceased’s wife.

(3)

The appellant’s four children Joseph Makumbi, Mary Ann Yawe, Paul Bobby and Joy were the deceased’s children and entitled to inherit.

(4)

The deceased’s lineal descendants in Uganda namely Dorothy, Bukirwa, Pauline and Paul Joseph; his mother, and his brothers Leonard 7 Edward, are all entitled to inherit. Something called a customary heir has to be appointed (Ugandan Succession Act – section 28).

(5)

The estate to be divided according to the Uganda Succession Act as follows: (a)

costs of the Public Trustee to come out of the estate

(b)

the customary heir to get 1% of balance of estate

(c)

deceased’s mother to get 5% of balance

(d)

deceased’s two brothers each to get 5% of balance

(e)

each child (lineal descendant) to get an equal proportion of residue

The appellant is only appealing against the finding that she was not the deceased’s wife; both parties before us having agreed with the other findings of the High Court. Kneller, J dealt with the evidence adduced before him in a careful manner. He said: “I saw all these witnesses testify and I wrote down most of what they said, so, at the end of the trial, I had the ‘feeling’ of the case. None spoke the whole truth the whole time because of their bias and fading recollections and, sometimes, they refused to concede any point which they thought was in favour of the other side. I have tried to sort the wheat from the chaff. So much for credibility.”

Then the trial judge went on to analyse the evidence adduced and came to the conclusions stated above. As regards the issue of the appellant’s marriage to the deceased, he said:

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“Secondly, was Hortensia Wanjiku his wife according to Kikuyu custom? She had to prove this and the standard of proof required was the usual in a civil matter, namely, ‘on the balance of probabilities.’The custom of Kikuyus for their marriages is documented in the Restatement of African Law: The Law of Marriage and Divorce, (1968) by Eugene Cotran Ch. 2 section IV, pages 15, 16. It was agreed to be so. Evidence was led as to the consent of the parties and their respective families, the Ngurario, the Rurachio and so on but was not proved to the standard required, of, Mwagiru v Mumbi [1967] EA 639. I answer the second question by saying that Mrs Hortensia Wanjiku was not the wife of Mr. Paul Yawe, the deceased, by Kikuyu custom or at all.”

Mr Muite, for the appellant, has submitted before us that this finding by the trial judge was against the weight of evidence and based on a misdirection as regards the onus of proof and that the trial judge had failed to consider the presumption of marriage in favour of the appellant arising out from long cohabitation. Mr Muite has asked us to re-assess the evidence on this point, as this is a first appeal. The appellant testified that she met the deceased in 1962, that they decided to marry, and in March 1963 she went through a Kikuyu customary marriage with him, and had since lived with him as husband and wife until his death, and during that period bore him 4 children. They had a matrimonial home in Nairobi West. That she had lived for over 9 years with the deceased and bore him children was not challenged. A witness Mr Christopher Malavu, one of the two witnesses who, the judge found “told the truth as far as they are aware of it”, and one of the deceased’s friends, stated that the deceased used to call the appellant his wife and that the appellant was regarded as the deceased’s wife for all purposes. Mary Rose Namwadu the mother of the deceased, a resident of Uganda and a witness for the Ugandan claimants, testified saying, “He (deceased) told me of his marriage to Wanjiku. I said “Never you may show me the mother of your children”. That is why he showed me Wanjiku.”

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She visited the deceased’s house many times in Nairobi and used to see the appellant with her children. In fact, she had two meals in that house. She also visited the appellant’s parents’ accompanied by the deceased and one of her daughters. The evidence of these witnesses indicated that the appellant and the deceased were living together as man and wife in a matrimonial home with the children of their union, and from uncontradicted evidence, for a period of over 9 years. A number of Kikuyu witnesses were called who testified to the performance of various ceremonies connected with the alleged Kikuyu marriage between the appellant and the deceased. The deceased’s mother Mary Rose Namwadu, who was alleged to have been present at some of the ceremonies, denied that any ceremonies took place. The witnesses were among those whom the trial judge found were biased and did not speak the whole truth. In support of the Kikuyu marriage, a little book (exhibit I) was produced by a witness alleged to contain certain payments of money made by the deceased. The trial judge found that the book was probably forged. The trial judge said: “There were discrepancies in the Order and details of the ceremony and ritual outlined in the evidence of the Wakikuyu witnesses. The impression they gave was that they were working backwards from the union of Paul Yawe and Hortensia Wanjiku through the book, as it were, and trying to prove the ingredients of a customary marriage, but because it never happened they were unable or forgot to cover the essentials. The account ….in a little book

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(exhibit I) ….was probably a forgery ….witnesses feel there must be something in writing to support their testimony about a certain event so when litigation begins they write out in some book a report of what happened….”

However in Exhibit J, an application for employment dated 29 December, 1966 to the East African Airways, filled in and signed by the deceased, he had put down the appellant as his wife.

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The position seems to me to be this. The appellant had testified that she was married to the deceased; the deceased had told Christopher Malavu that the appellant was his wife, and the deceased in an application in 1966 had stated that the appellant was his wife. By general repute and in fact the parties had co-habited as man and wife in a matrimonial home for over 9 years before the deceased died in an accident, and during that period the appellant bore him four children. Evidence was led on behalf of the appellant that a Kikuyu customary marriage between her and the deceased took place and that various ceremonies and rituals were duly performed. The deceased’s mother appeared to deny that such ceremonies took place in her presence as alleged by the appellant and her witnesses. Despite Mr. Muite’s submissions to the contrary, I agree with the trial judge that the onus of proving that she was married to the deceased was on the appellant. But in assessing the evidence on this issue, the trial judge omitted to take into consideration a very important factor. Long cohabitation as a man and wife gives rise to a presumption of marriage in favour of the appellant. Only cogent evidence to the contrary can rebut such a presumption, see Re: Taplin – Watson v Tate [1937] 3 All ER 105. the trial judge did not consider this factor. The trial judge was not satisfied that the appellant had established on a balance of probabilites that the Kikuyu customary marriage was performed in accordance with all the necessary ceremonial rituals. It is not clear whether he found that the marriage was not valid because all the rituals had not been performed, or no marriage of any kind had taken place at all. However in considering whether there was a marriage the trial judge ought to have taken account of the presumption of marriage in the appellant’s favour. Such a presumption carries considerable weight in the assessment of evidence. Once that factor is put into the balance in the appellant’s favour, he must tilt in her direction. In this case there was evidence of the deceased’s oral and written declarations that the appellant was his wife, and the visits to the appellant’s parents’ home by the deceased’s mother which was of some matrimonial significance. If the trial judge had taken all these matters into consideration when he was assessing and evaluating the evidence, there can be little doubt that he would have come to a contrary finding on this issue. Even of the proper ceremonial rituals were not carried out, that could not invalidate the marriage, see Sastry Aronegary v Sembecutty Vaigalil (1880 -1881) 6 Appeal Cases 364, and Re Shepherd – George v Thyer (1904) I ch. 456. Mr. Oluoch for the Ugandan group of claimants, submitted that the trial judge had held that no marriage, Kikuyu customary or otherwise, had taken place at all. He referred to the Restatement of African Law 1 by Eugene Cotran, and contended that if no ram was slaughtered then no marriage could take place. He submitted that the appellant had taken on herself to prove a Kikuyu customary marriage, and had failed to do so. He appeared to doubt whether a presumption arising from long cohabitation based on English Common Law was an element in Kikuyu Customary marriage, and in any event he stated that it was for the appellant to establish that it was so applicable,

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which the appellant did not do. He suggested that perhaps the presumption on English Common Law arose because of the public concern regarding illegitimate issue and inheritance; in the Uganda Law of Succession, illegitimacy is no bar to inheritance. He also submitted that the appellant did not, in the High Court, rely on cohabitation as a factor in her favour, and he doubted if this matter can now be raised before us. Mr. Kithyoma for the Public Trustee associated himself with Mr. Oluoch’s submissions. I can find nothing in the Restatement of African Law to suggest that Kikuyu customary law is opposed to the concept of presumption of marriage arising from long cohabitation. In my view all marriages whatever form they take, civil or customary or religious, are basically similar, with the usual attributes and incidents attaching to them. I do not see why the concept of presumption of marriage in favour of the appellant in this case should not apply just because she was not married according to Kikuyu customary law. It is a concept which is beneficial to the institution of marriage, to the status of the parties involved and to the issue of their union, and in my view, is applicable to all marriages howsoever celebrated.The evidence concerning cohabitation was adduced at the hearing, and formed part of the issue concerning the fact of marriage, and even if no specific submission on that point was made by Mr. Muite, I do not think that he is precluded from relying on it before us. It is directly concerned with the burden of proof to be discharged by the appellant, and this presumption enhances the quality of the evidence adduced on her behalf and weighs heavily in her favour. There was no evidence adduced in rebuttal of that presumption. The trial judge omitted to take this crucial matter into consideration: if he had, he would probably have held that the appellant was married to the deceased and was his wife. I would allow the appeal and declare that the appellant was the deceased’s wife. It follows that the appellant is entitled to her share of the inheritance as the widow together with the other beneficiaries. I would set aside the decree of the High Court (which incidentally does not appear to accord with the order made) and substitute the following:

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The Public Trustee of Kenya to distribute the assets of the deceased’s estate in Kenya in accordance with the law of Uganda.

I would order that the costs of the appellant and the Public Trustee in this appeal be paid out of the estate, and that the costs of the Uganda claimants be paid by themselves. I would leave the order for costs in the High Court undisturbed. ***

13.7 VIVA VOCE

OR

ORAL EVIDENCE

The provisions of the Law of Succession Act envisage that most of the contentious applications are filed in court in the nature of applications, except perhaps for the objection proceedings. The hearing of applications takes the form of oral arguments presented by the parties. However, this usual procedure for hearing applications may prove unsuitable for highly contested matters and the court on occasion allows parties to lead viva voce or oral evidence. Cases numbers 281 and 282 are illustrations of circumstances where the court would be inclined to take oral evidence at the hearing of an application.

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In the Matter of Estate of Gerald Kuria Thiara Nakuru High Court succession cause number 127 of 1995 CASE NO. 281

(Lesiit J) (Certain pertinent issues need deeper exercitation and testing which can be achieved only by way of viva voce evidence). The facts are set out in the ruling

LESIIT J: Having considered the submissions and the affidavits filed by various persons in relation to this application, I realise that certain pertinent issues needed deeper exercitation and testing which can be achieved only be by way of viva voce evidence. The most important issue that needed to be determined is ownership of a parcel of land LR Number 530/177 and whether or not there existed a trust over the said land. Such issues can only be determined after a thorough hearing of the case and most appropriately through viva voce evidence. It is trite law that a trust over land has to be established and this can be achieved best through evidence. In all due respect affidavit evidence is inappropriate. Such oral evidence would be subjected to thorough crossexamination and during which the demeanour of the witnesses will be under scrutiny. On these grounds I find that it will not serve the interest of justice to dispose of the application merely on the evidence of depositions placed before the court. Let the application be disposed of by way of viva voce evidence. In the meantime in relation to the grant of letters of administration in issue herein, I direct that there shall be no disposal or intermeddling with the land LR 530/177 by the petitioner or her servants or agents or by any other party whether interested party to this petition or not. It is so ordered. In the Matter of the Estate of Ndegwa Kariuki (deceased)

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Nairobi High Court succession cause number 2799 of 1999 (Ang’awa J) CASE NO. 282

(Where an affidavit in support of an application for revocation contains considerable allegations of fraud the determination of the issues raised can only be dealt with effectively through the taking of oral evidence).

The facts are set out in the ruling. ANG’AWA J: This is an application for revocation of grant issued by this court (Aluoch J) on 12 March 1999. NK a male adult aged 90 years old at the time of his death on 21 March 1983 left surviving him a widow and a daughter. They applied for letters of grant (sic) and the same was issued to them (widow and the husband of the deceased daughter, i.e. the son-in-law). An application to revoke that grant spoke of the applicant having lived on the land for a considerable time and was entitled to the land being the only asset of the deceased.

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Rule 44 of the Act (sic) requires that I determine this matter at this stage. My determination is that the allegations contained in the affidavit contains (sic) quite a considerable amount of allegation of fraud. That the issue of facts requires to be established, I hereby determine that this matter cannot be dealt with in a summary manner. It must therefore be dealt with by a full hearing of evidence by the parties before any judge. Namely, viva voce evidence to be taken … ***

13.8 COSTS Succession causes are civil in nature, and in contested proceedings the court has the discretion to award costs to the successful party. The Law of Succession Act does not provide for costs, but rule 69 of the Probate and Administration Rules provides that: ‘The costs of all proceedings under the Rules shall be in the discretion of the court.’ Cases number 283 and 284 are on costs. Anastacia Mutheu Benjamin v Lakeli Benjamin and another Nairobi Court of Appeal civil appeal number 6 of 1979 (Madan, Law and Potter JJA) (Where litigation is caused by the acts or conduct of the deceased the costs of the same should be borne by the estate).

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CASE NO. 283

The matter related to an application by the Public Trustee asking the court to decide a dispute as to the succession of the estate of the deceased.The issue was whether the two women claiming to be his widows were in fact married to him during his lifetime. The court found that one of them was a customary law wife, while the other was not a wife at all, as she had no capacity to contract marriage with the deceased as she had been married to another man under statute and that statutory marriage was still subsisting. The High Court, upon this finding, held that the second woman should shoulder her own costs, but the Court of Appeal found that her costs should come out of the estate – saying that the woman had cohabited with the deceased for a long time, was reputed to be his wife and she contributed substantially to the acquisition of some of the assets which made up the estate.

MADAN, LAW AND POTTER JJA: As regards the costs of the petition in the High Court the learned judge ordered that the costs of Regina and the Public Trustee should be paid out of the estate, but that Anastasia should bear her own costs. We think that her costs in the High Court should have been paid out of the estate, as was prayed in the petition, and we order that the judgement and decree be amended accordingly. As regards the costs of this appeal, we are influenced by the fact that Anastasia cohabited with the deceased for many years as his reputed wife and that she also contributed substantial sums towards the cost of constructing the deceased’s house and the purchase of his car, to the benefit of the estate. We order that the costs of Regina and Anastasia

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in this appeal be paid out of the estate, but not the costs of the Public Trustee who has not thought fit to appear today or to inform the Court that he did not intend to appear. In Re Estate of Karanja [2002] 2 KLR 34 (Khamoni J)

CASE NO. 284

(Where order XXV of the Civil Procedure Rules is applied in probate and succession matters, being one of the provisions of the Civil Procedure Rules imported into probate practice, the petitioner in a probate cause is treated as a plaintiff, while the objectors, protestors, and applicants in the applications for reasonable provision and for revocation of grant, may be regarded as defendants) The court awarded costs against a party, to be paid personally by that party, following the dismissal of their various applications. The court held that for the purpose of order XXV of the Civil Procedure Rules the petitioner in a probate or succession cause may be regarded as a plaintiff in, while objectors, protestors, and applicants seeking revocation of grant and reasonable provision may be regarded as defendants.

KHAMONI J:There is no doubt that under order XXV of the Civil Procedure Rules, the person in whose favour the order for security for costs should be made is the defendant and the person who should be ordered to give security is the plaintiff.

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Here again none of the authorities brought to my attention has considered the question of security for costs as between the petitioner on the one hand, and the objector or protestor or beneficiary or an applicant for provision, on the other in probate and administration proceedings. That application for provision under section 26 of the Act was, in accordance with rule 45(1) of the Probate and Administration Rules, properly filed in this succession cause, and here I mean the claim of the objector in so far as it falls squarely within the limits of section 26 of the Act and not beyond. Rule 45 (1) states: ‘Every application to the court under section 26 of the Act shall, where a grant has been applied for or made but not confirmed, be brought by summons in Form 106 in that cause, or, where no grant has been applied for, brought by petition in Form 96; and the summons or petition and supporting affidavit shall be filed in the registry and copies thereof served upon the personal representative of the deceased: Provided that, if representation has not been granted to any person, a copy of the petition and supporting affidavit shall be served upon the persons who appear to be entitled to apply for a grant under the Act.’

It means that an applicant for provision under section 26 of the Probate and Administration Act can file such an application before a petition for a grant is filed. But when that application under section 26 is filed, it is filed by way of a petition

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(not summons) in Form 96. Here., the applicant for provisions, unlike the caveator in the case of Emery v Emery (ibid), will have gone on to institute the proceedings by herself and if the deceased’s personal representative or any person appearing to be the deceased’s personal representative will only go in as a defendant although he may be described variously, as respondent for example. This is because that application under section 26 will remain a separate case when the petition for a grant is applied for as the petition for a grant should not be filed in the petition for provision under section 26 of the Act. The objector before me is not a similar situation. Hers is a mere summons, not a petition, in the succession cause where there is a petition for a grant. She is therefore described as an objector or an applicant for provision where a grant has been applied for. Hers is an interlocutory application. It has been seen that in section 2 of the Civil Procedure Act, a ‘suit’ is interpreted as meaning ‘all civil proceedings commenced in any manner prescribed.’ Probate and administration proceedings, are ‘commenced’ in a ‘manner prescribed,’ by the filing of a petition for a grant of probate and for the purpose of rule 63 of the Probate and Administration Rules as read with Order XXV of the Civil Procedure Rules, those proceedings are civil proceedings, so that a probate and administration cause becomes a ‘suit.’ A similar situation obtains in succession proceedings for a grant of letters of administration (intestate).

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The person who files the petition is called the petitioner and therefore, for the purpose of order XXV, that person is the plaintiff and an order can be made against him under order XXV of the Civil Procedure Rules if, for example, he files his petition where, following the filing of a prior petition in which he participated, a valid grant of probate or letters of administration intestate were made and remain intact. Fellow participants in the proceedings in the first petition would, as objectors in the second petition, be defendants for the purpose of Order XXV of the Civil Procedure Rules, to obtain a court order for security for costs against the petitioner in the second probate and administration cause.

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PART SIX

ADMINISTRATION ESTATES OF

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Administration of estates is the function of personal representatives. It entails the collection and realisation of property belonging to the estate, payment of funeral and administration expenses, settlement of debts and liabilities, and eventually the division of the estate. The relevant provisions on administration of estates are in Part VII of the Law of Succession Act. To enable personal representatives discharge their function effectively, the law gives them a variety of powers, and since the property of the estate vests in them and they hold the same in trust for beneficiaries, heirs and creditors, they operate under certain duties. The provisions of Part VII of the Act should be read together with the provisions of the Trustee Act and the Trusts of Land Act. Section 3(1) of the Trustee Act provides: ‘3(1) This Act, except where otherwise expressly provided, applies to trusts including, so far as this Act applies thereto, executorships and administratorships constituted or created either before or after the commencement of this Act.’

Personal representatives of the deceased are given several powers and duties under the Law of Succession Act, the Trustee Act and the Trusts of Land Act. These are designed to assist them in the administration of the estate.The relevant provisions of the Law of Succession Act on the administration of estates are sections 79, 81, 82, 83, 84, 85, 86, 87, 89, 90, 91, 92, 93, 94 and 95. Section 82 of the Law of Succession Act provides: ‘82.

Personal representative shall, subject only to any limitation imposed by their grant, have the following powers: (a)

To enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arise out of his death for his estate;

(b)

To sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that:

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(i)

The purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased;

(ii) No immovable property shall be sold before confirmation of the grant; (c)

To assent, at any time after confirmation of the grant to the vesting of a specific legacy in the legatee thereof;

(d)

To appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or ... Chapter fourteen carries cases on powers and duties of personal representatives with respect to collection, realization, preservation and management of estates. Chapter fifteen deals with pecuniary legacies,as well as the meeting of expenses connected with or related to the administration of estates. Payment of debts paves the way for the distribution of the estate, and chapter sixteen deals with this. The cases contained in chapter sixteen cover the principles governing the distribution of estates. During the process of administration court action is in most cases inevitable. Personal representatives may require directions from

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the court, or they may require court orders to facilitate recovery of debts, or to restrain trespassers or intermeddlers. Beneficiaries and creditors may be unhappy with aspects of the process of administration, and may require the court to intervene with a view of giving directions. The law gives a variety of remedies to all these groups. Chapter seventeen has cases dealing with such matters, and these cases provide principles which govern administration suits in general. Administrators of estates are required to keep records of their administration, and often have to account to beneficiaries, creditors and the court. These matters are dealt with in the cases in chapter eighteen.

CHAPTER 14 COLLECTION, REALISATION AND MANAGEMENT ESTATES

OF

14.1 INTRODUCTION The property making up the estate of the deceased vest in the personal representatives. The role of the personal representative is generally the collection of the assets, preservation of the such assets, payment of debts and liabilities and eventually the distribution of the property among the heirs and beneficiaries. The Armed Forces Act at section 220 makes provision for administration of estates of deceased members of the armed forces. The provision states as follows: ‘220(1) Where a member of the armed forces dies leaving a valid will, the paymaster or any officer having in his charge or control any pay, accumulation of pay, gratuity or other money or any other movable property belonging to the member shall pay or deliver it to the executor of the member. (2) Where a member of the armed forces dies without leaving a valid will, the paymaster or any officer having in his charge or control any pay, accumulation of pay, gratuity or other money or any movable property, belonging to the member shall pay or deliver it to the Public Trustee together with a copy of the record specified in section 218 of this Act, and the Public Trustee shall administer and distribute the money or property in accordance with the Public Trustee Act, or may grant a certificate as provided in section 4 of that Act.’

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14.2

COLLECTION

AND

PRESERVATION

OF

ASSETS

The personal representatives are under a duty to collect and preserve the assets making up the estate. For them to discharge this duty effectively, they should not be inhibited in any way by anybody.The relevant provision in the Law of Succession Act governing collection and preservation of assets is section 83(b).The Public Trustee Act has similar provisions in sections 15(1) and 25(2) for those estates managed by the Public Trustee. Section 83(b) states: ‘83

Personal representatives shall have the following duties(b)

To get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death ...

Section 15(1) of the Public Trustee Act provides that: ‘15(1) Where a person dies leaving an estate in Kenya consisting of movable property only and also estate in Uganda,Tanzania and Malawi, administration whereof is committed to the Administrator-General or Public Trustee of any such territory, the Public Trustee may, if requested so to do by the Administrator-General or Public Trustee of

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the territory, and if satisfied that reciprocal legislation exists in that territory and that the interests of creditors in Kenya will not thereby be prejudiced, apply to the court for an order, which order the court is hereby empowered to make, authorising him to collect the assets of the estate in Kenya and hand them over to the AdministratorGeneral or Public Trustee of that territory; and, upon the making of the order, the Public Trustee shall have the same rights and duties as regards the collection and realisation of the estate as if administration had been committed to him, and shall not be liable therefor to any creditor or claimant, but shall be discharged from all liabilities upon handing over the assets or the proceeds of the realisation thereof to the Administrator-General or Public Trustee of that territory.’

Section 25(2) of the Public Trustee Act states: ‘25(2) The Public Trustee shall appoint such person or persons as he shall think fit to act as his agents in the managing, collecting and getting in of property belonging to the deceased persons whose estates are in course of administration by him or of any estate of which he is the trustee; and the agents shall(a)

In all respects act in the management, collection and getting in of property under the direction of the Public Trustee, who shall be answerable for any act or omission of an agent not in conformity with his direction or which has not happened by the Public Trustee’s own fault or neglect;

(b)

Find security to the satisfaction of the Public Trustee for the performance of his duty;

(c)

Be remunerated either by salary or portion thereof chargeable under this Act as the Minister shall fix.’

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Cases numbers 285, 286 287 and 319 state the position that the personal representative should be given a freehand to manage the estate without interference. Case number 288 demonstrates that the personal representative is expected to collect property that belongs to the estate.

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In the Matter of the Estate of the late James Shiraku Inyundo (deceased) Nairobi High Court probate and administration number 920 of 1986 (Kuloba J) (A beneficiary who is not an administrator should not interfere with the administrator’s work and should give the administrator a freehand to discharge his duties. A beneficiary cannot compel the disposal of assets)

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CASE NO. 285

A beneficiary sought orders to sell an asset and thereafter apply the proceeds to settle medical bills, legal fees, pay rates and retain the balance for the maintenance of the widow of the deceased.The said beneficiary was not the administrator of the estate. His application was rejected. The court held that a beneficiary has no right to compel the sale of assets, particularly those enjoyed by him in common with other beneficiaries. A beneficiary should not interfere with the administration of an estate and should generally give the administrator a freehand to discharge his duties.

KULOBA J: As a matter of law, it is not right for one beneficiary in residue to compel a sale of a part of the estate which is still to be enjoyed by the other beneficiaries either before him or in common with him. A beneficiary has no right to compel administrators to dance to his tune. Where administrators are not committing any wrong to the estate, they must be left to administer the estate in the best interests of the estate and the beneficiaries. It is not for one beneficiary to go looking for bills and rates which have not been addressed to the estate. In the first place, those bills and rates are not incurred by the estate or administrators. In the second place, the administrators have not received demand for payment of those bills and rates, by creditors, who ought to make demand. In the third place, the applicant is not a debt-collector for hospitals, nursing homes and City Council; he is neither commissioned nor employed to collect outstanding hospital and doctors ‘bills, legal fees and City Council rates. If any creditors wish, they are the ones to demand payments from the administrators, and if they satisfy the administrators as to the alleged bills, legal fees and rates unless and until they are proved as debts owed by the estate to the claimants. But it would be wrong for a beneficiary to demand the settlement of unproved liabilities.This what the present applicant is essentially asking. As to his demand that after sale and payment of bills and rates and lawyers’ legal fees, the balance shall be shared in the proportions he shows, he is usurping the powers of the administrators. In the first place, he does not show how he arrives at his suggested one-third and two-thirds ratios. In the second place, it has not been shown that the sharing in the proceeds will have to keep to the rule of equality amongst the beneficiaries. In the third place, the administrators may see good reasons not too share

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out the proceeds immediately, and in the fourth place, given the fact that the applicant seems to be standing on one side alone against the rest of the family members his proposed scheme of sharing may be disputed by the rest of the family, and, in such circumstances, to accede to the applicant’s wish, may be sawing seeds of discord in the family in advance. The court should not do such a thing.

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Furthermore, according to a copy of a formal order extracted from the order of Tanui J, given on 17 November 1988, in the matter, at paragraph 5, the learned judge ordered that the plot in question and the building thereon was granted to ‘Martha Akhanyisi Shiraku and her children.’ it is possible to take this order to mean that Martha Akhanyisi Shiraku is to enjoy the plot and the house for her life, and thereafter the property is to devolve to her children. If that understanding carries the day, then the property should not compulsorily be sold during the lifetime of the said Martha Akhanyisi Shiraku, and it has to be preserved for her children to take it after she dies. It is also possible to take that order as meaning that the property is to be enjoyed by the said lady either in common with her children, or as joint in common or joint tenants. There is no evidence to prove that the estate is being wasted or otherwise mal administered by the administrators. To the contrary, Martha Akhanyisi Shiraku and the rest of her children (except the applicant) are happy with the present status quo. The will of one beneficiary cannot overshadow the greater interests of the estate and the rest of the body of beneficiaries and administrators, and in the absence of compellingly good reasons, it should not be allowed to prevail to the detriment of other beneficiaries. And when the whole case is fairly considered, the rest of the family seems to have good reasons to be contented with the present status quo. The mother needs this house for income for her upkeep, and she undeniably says that she gets remittances every month paid to her out of rent. The alleged liabilities (like hospital bills and rates) appear not to have been agreed to be paid out of monies to be found by selling the house.The timing of the suggested distribution of the estate is not shown to be due.There is no mal administration and mismanagement of the estate. In all fairness and justice, the applicant does not have any good reason to justify an order that the suit property be sold and its proceeds be applied as he proposes in his application. the sale of this property at this point in time, for the reasons given by the applicant would be a terrible loss to his mother and his other brothers and sisters, and it would be an unnecessary dissipation of the estate of the deceased on things which would probably not have been within the contemplation of the deceased. It is for these reasons that I find that there are no merits in the application, and that is why the application should be dismissed. The application is accordingly dismissed. As this is a family matter, a fair order as to costs is that each party bears its own costs of this application.

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In the Matter of the Estate of David Murage Muchina (Deceased) Nairobi High Court succession cause number 2077 of 2002 (Kamau AJ)

CASE NO. 286

(The estate of a deceased person vests in the personal representative, who should be afforded the opportunity to take care of the estate, given that in the end he will be required to account to the beneficiaries and third parties for his administration of the estate) The executors filed a summons within the cause asking for restraining orders against an intermeddler who was not a beneficiary. The deceased died testate, and in his will he did not name the intermeddler a beneficiary, but the will duly provided for ten children. The validity of the will was not formally challenged. The court gave restraining orders, but directed that she be allowed to remain in possession of the land where she resided pending the completion of the administration.

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KAMAU AJ: It is imperative that there be at all times a personal representative on record for any estate of a deceased person so as to prevent or arrest any waste or damage pending distribution. The said personal representative is under a statutory duty to account to all the beneficiaries and other interested third parties as was pronounced in the case of Charity Stephens and others v Joseph Stephens and another (Civil Appeal Number 18 of 1987). An estate of a deceased person should therefore not and any time be in a state of limbo for want of a personal representative. The said personal representative should save as may be provided under the law, be afforded free hand to perform his duties for in law, the gross estate vests unto him to the exclusion of all others as provided under section 79 of the Law of Succession Act (Chapter 160). I accordingly therefore grant to the applicants orders as prayed, inter alia, restraining the said respondent from intermeddling in any manner whatsoever with any assets of the estate of the deceased until final determination of the said application for revocation of the said grant of probate.80 I further order that the said respondent do continue to reside on the shamba of the deceased she presently resides, and no more, until the said determination and further that the status quo in respect of all assets of the deceased be, save for determination, collection and preservation, maintained until then.

80

The proper course of action by the personal rrepresentative should have been to commence an administration suit, by way of plaint, asking for an injunction under the Civil Procedure Act and Rules since there are no provisions in the Law of Succession Act giving the court the power to make restraining orders. The probate court, ideally, should only exercise such powers as it is given by the governing law, where powers to restrains heirs are not granted by statute the court cannot purport to exercise them under the inherent powers of the court. Those powers are available elsewhere and the executor, being a representative of the deceased and having rights similar to those of the deceased, including suing and being sued on behalf of the estate, should take advantage of the remedies availed by the Civil Procedure Act, and in this case the executor should have brought a civil suit against the the intermeddler who was not named in the will of the deceased as a beneficiary. The court should have dismissed the application, and advised the executor to commence an administration suit against the person allegedly intermeddling with the estate.

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In the Matter of the Estate of Hemed Abdullah Kaniki (deceased) Nairobi High Court succession cause number 1831 of 1996 (Kamau AJ) (The holders of a grant of letters are under a statutory obligation to protect all the property making up the estate, and a duty to account for their administration of the same, in the circumstances they should not be inhibited in the discharge of that obligation on account of the pendency of a revocation application)

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CASE NO. 287

The applicants were the administrators of the estate, while the respondents were the applicants with respect to a pending application for the revocation of the grant made to the administrators. There were orders made in the revocation application pending the hearing and disposal of the revocation application restraining the applicants from doing certain things with regard to the estate. The applicants argued in the instant application that those orders were prejudicial to the estate, and the estate was being exposed to wastage as the administrators could not collect rent from the tenants nor pay the rates due to the local authority. The applicants sought the variation or the setting of those orders.The court found in favour of the applicants and varied the orders. The court stated that the personal representatives had a duty to administer the estate and in the end to account for the said administration, and therefore there was no need to restrain them from exercising their duties pending the hearing and disposal of the revocation application.

KAMAU AJ: … At the very onset, and for the ends of justice, and in pursuance of the provisions of rule 73 of the Probate and Administration Rules read together with section 47 of the Law of Succession Act I admit the application file herein together with the affidavit of Ali Hussein Ali (the interested party) dated 17 June 2004 as being properly on record, notwithstanding the procedural but curable defects alluded to. I also hold that there is no statutory time limit set for commencing this application and an order may be set aside or and varied in the interests of justice so long as such recourse will not cause any prejudice. It is not in dispute that the ownership of the subject properties of this application is contested between the parties herein. It is also not disputed that the applicants herein were issued with a grant of letters of administration validity of issuance of which is contested only to the extent of the said subject properties. the role of a personal representative in respect of the property of an estate is very well defined under the Law of Succession Act which provides under section 79 that:

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‘The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all property of the deceased shall vest in him as personal representative.’

A personal representative is thus vested with the statutory duties of protecting all the properties of an intestate under his administration. Such duties are conferred unto such personal representative as a trustee thereof and are clearly more expressly defined under section 83 of the Law of Succession Act which provides inter alia that the personal representative is duty bound: ‘…to ascertain and pay, out of the estate of the deceased, all debts.’ until such time that as he is legally discharged, the personal representative is thus duty bound to take all necessary steps and protect the estate of a deceased person from waste and damage so as to obviate an action in devastavit. The grant of letters of administration issued to the applicants herein has been challenged to the extent only of the said subject properties. Until such other orders are made, the said grant stands valid for execution subject to the determination of the main suit herein by reason of the pending suit, ownership of the said properties is sub judice and ultimately, the applicants’ powers thereto are severely constricted. They can only ensure that the said subject properties are retained in status quo prevailing at death and that the same are not subjected to waste or damage. The said applicants are therefore at the moment under a duty to ensure that income realisable from the said subject properties is duly remitted and that all the outgoings and in particular all statutory claims are settled on time and no more and no less.To otherwise abdicate would place the estate status quo ante in a state of limbo to the detriment of all interested parties. The said applicants are after all duty bound to account.

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This court takes full cognisance of the claim in trust lodged by the respondents herein against the said subject properties under the main suit. In the circumstances and by reasons aforesaid and until final determination it is ordered that: 1.

All tenants of the said subject properties are hereby ordered to commence payment of monthly rent to the Registrar High Court of Kenya with effect from 1st July 2004 and in default thereof the applicants herein will be at liberty but with leave of court to initiate the necessary recovery proceedings against the defaulting tenant or tenants.

2.

The applicants herein as administrators of the estate of the deceased do forthwith ensure that an account of income from the said subject properties realised since the death of the deceased is compiled and filed in court and at any rate within thirty days hereof.

3.

All previous orders made hereinbefore are accordingly set aside or varied.

4.

This order is served on all the tenants.

5.

Costs of the application be in the cause.

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In the Matter of the Estate of Elizabeth Wamaitha Ngaruiya (deceased) Nairobi High Court civil number 2499 of 2001 (Waweru J)

CASE NO. 288

(An overriding interest over land which is recognised under section 30 of the Registered Land Act does not confer ownership of property and such an interest cannot be passed by the deceased to his heirs under the law of succession)

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The issue before the court was determination of the question whether the property listed in the petition as the only asset making up the estate actually belonged to the deceassed. The court found that the deceased had only an overriding interest in that property under section 30 of the Registered Land Act, and the said overriding interest died with the deceased. WAWERU J: I note that in for P and A 5 (affidavit in support of the petition of grant) it is stated that the asset of the deceased’s estate is LR KOMOTHAI/KIAMBURURU/456. But the certified copy of the register of the land filed together with that form shows that the registered proprietor of the land is MBURU KIMUKU and not the deceased. It is however noted in the register that there are rights under section 30(g) of the Registered Land Act pursuant to High Court civil case number 669 of 1978. All the information above appears in the certificate of official search similarly filed. Section 30 of the Registered Land Act, Chapter 300 provides for the overriding interests set out therein. it is clear from the proceedings of Nairobi High Court civil case number 665 of 1978 annexed in paragraph 7 of the further affidavit of the objector filed on 3 June 2002 that the court granted only a life interest to the deceased over four (4) acres of land in the original parcel, LR KOMOTHAI/KIAMBURURU/332. The court further ordered that the land be subdivided in order to safeguard the deceased’s life interest in the four (4) acres. That was done, and hence the creation of LR KOMOTHAI/KIAMBURURU/456. Needless to say, ownership of the parcel remained with MBURU KIMUKU. The deceased’s life interest was noted on the register of the parcel as an overriding interest, again as ordered by the court. So, what happened to the life interest of the deceased in LR KOMOTHAI/ KIAMBURURU/456 when she died on 18 September 1998? Obviously, it died with her. The parcel of land could therefore not be administered as part of her estate as it was indeed not her asset. The lower court therefore proceeded on the very erroneous premise that the parcel of land was an asset of the deceased’s estate. It was not! The grant issued to Grace Wanjiru Mburu on 24 February 2000 and subsequently confirmed was so issued and confirmed in error and must be revoked. I so order. I also order that the certificate of confirmation of grant dated 28 September 2000 be and is hereby cancelled. All transactions involving parcel of land LR KOMOTHAI/ KIAMBURURU/456 done pursuant to the said certificate of confirmation are also hereby ordered cancelled. ***

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14.3 POWER

Collection, Realisation and Management of Estates

TO

ENFORCE CAUSES

OF

523

ACTION

To facilitate the collection of assets the personal representatives are given power under section 82(a) of the Law of Succession Act to sue and to defend suits filed against the estate. A similar provision is found in section 25(3) of the Public Trustee Act for those estates managed by the Public Trustee. Section 82(a) states as follows: ‘82.

Personal representative shall, subject only to any limitation imposed by their grant, have the following powers: (a)

To enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arise out of his death for his estate ... ’

Section 25(3) of the Public Trustee Act says as follows: ‘25(3) In all proceedings under this Act and in all proceedings at law, the Public Trustee shall sue and be sued by the name of the Public Trustee, and it shall be necessary to state and prove his authority and title in the specific estate to which the proceedings may relate, but not his general authority or appointment.’

Case number 289 sets out the procedure that should be followed in suits by or against the estate. Case number 290 states the position that an administrator would succeed in collecting only those assets that are set out in the succession cause papers. Case number 291 demonstrates that the property recoverable by the administrators would be property that accrues to the estate. Sargent v Gautama [1968] EA 338 (Sir Clement de Lestang VP, Duffus and Spry JJA)

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CASE NO. 289

(Where an estate is to be joined in an action all the legal representatives of the deceased should be added as parties and not just one of them) An executor sought to be joined to an action to ventilate an estate’s claim, while the other executor did not wish to be involved. The court directed that all the legal representatives of the estate be joined to the suit as a parties and not just one executor.

DUFFUS JA: Mr Khanna in his submissions quite properly pointed out that the claimant Sheikh Mohamed Bashir is only one of the executors of the Estate of Sheikh Abdul Rashid and that the other executor does not apparently desire to contest the claim of Farouq Investments Limited to the £5 000. The Estate of Sheikh Abdul Rashid does appear to have a claim requiring investigation. I agree that the order of the court should be that the legal personal representatives of the Estate of Sheikh Abdul Rashid should be joined as a party and not only one of his executors. If the dispute between the executors is not resolved this might have to be the subject of a separate application to the court.

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The Public Trustee v Jotham Kinoti and another Nairobi High Court civil case number 3111 of 1985 (Khamoni J) (The authority of an administrator only covers property that has been set out in the succession cause) CASE NO. 290

The Public Trustee, as administrator of the estate of the deceased, sued the defendants seeking, among other orders, their eviction from property allegedly belonging to the deceased. It was found that the land in question did not belong to the estate as the family of the deceased had sold the same before the Public Trustee was appointed as administrator of the estate.

KHAMONI J: It is the grant in cause number 17 of 1977 which gives the plaintiff the authority to administer the estate of the deceased as set out in that succession cause. That authority does not extend to assets not set out in that succession cause. If any other asset is to be included, which had not been included before, that inclusion must be done in probate and administration cause number 17 of 1977. It cannot be done in a different cause or suit. …The Public Trustee is a trustee of the family of the deceased. But he cannot claim for the family what the family sold before he was appointed the family’s trustee and which, as a result, was not included in The estate the Public Trustee was appointed, under the grant of letters of administration, to administer. In the Matter of the Estate of Kahiro Kabunyi (Deceased) Nairobi High Court succession cause number 467 of 1986

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(Githinji J) (A right to occupy the land of another is an overriding interest which terminates with the death of the person to whom such right accrues) CASE NO. 291

The applicant was claiming a share in the land of the deceased. She claimed that her late grandfather had an interest in the land before it was adjudicated and subsequently registered in favour of the deceased. The court held that the deceased got a first registration, and by it any interests of the deceased grandfather of the applicant were extinguished, and the applicant’s grandmother, who lived on the land till her death, only acquired an overriding interest taking the form of a right to occupy the land, and which interest died with her.

GITHINJI J: This is a succession case. We are dealing with the estate of a person who died in 1979 and who was registered as proprietor of the land in dispute after land adjudication in about 1955 and who is the registered owner of the land. The title of Kahiro Kibunyi is absolute subject of course to overriding interests and any trusts. In

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order to advance their case the claimants, if I may call them so, have taken the court to pre-land adjudication rights of Kubai Gathaara to get a share of the land and since Kubai Gathaara was not alive the right of his wife Edith Wambui to get a share of the land. These were extinguished upon the registration of Kahiro Kibunyi as the proprietor of the land subjected to overriding interest and trusts if any. By the time of death the of Edith Wambui she have had no title to the share of the land she was occupying. She would only had got a little if Kahiro Kibunyi had in his lifetime transferred a portion to her. Alternatively she would have got ten title if she had obtained a decree of the court that she was entitled to a specific acreage of the land. Edith Wambui did not file a suit in the suit in the lifetime of Kahiro Kibunyi for a declaration that Kahiro Kibunyi held a share of the land in trust for her. She had not filed such a suit against the legal representative of Kahiro Kibunyi before she died. Declaration of trust such as is sought would only have been made in a suit filed in the normal way not only the succession proceedings, pleadings which conform with rules of procedure are required.The probate court has no jurisdiction to make a declaration in a matter like this involving complex customary rights of ownership of land. Lastly the claimants claiming through Edith Wambui have not obtained a grant of letters of administration in respect of the estate of Edith Wambui so that they would have capacity to pursue her interests in this dispute. In conclusion, it is evident that Edith Wambui had no legal estate at the time of her death as she had not obtained a declaration of trust against Kahiro Kibunyi or legal representative or obtained a share of the land through transfer by Kahiro Kibunyi or his legal representatives. So at the time of her death all as she had is a right of occupation of the portion she was using itself an overriding interest which right of occupation was terminated by her death. The result is that I dismiss claim to a share of the land by Edith Wambui’s daughters and grandsons and order that the land in dispute be inherited by the widow and children of Kahiro Kibunyi.

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***

14.4 POWER

OF

SALE, MORTGAGING

AND

LEASING

The administrator is granted powers of sale, mortagaging and leasing these powers for a variety of reasons. It could be to raise funds to settle debts and liabilities, or to raise money to pay legacies. The relevant provisions of the Law of Succession Act are to be found in section 82(b). These powers are elaborated in Part III of the Trustee Act, and Part IV of the Trusts of Land Act. Section 82(b) of the Law of Succession Act provides as follows: ‘82.

Personal representative shall, subject only to any limitation imposed by their grant, have the following powers: (b)

To sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:

Provided that: (i)

The purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased;

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No immovable property shall be sold before confirmation of the grant ... ’

Cases numbers 292 and 293 illustrate the application of the principles governing sale, mortgaging and leasing. In the matter of an application by Ebrahimji Gulamhusein Anjarwala as an Administrator of the estate of Hussenabai Musajee, deceased (1946) 22(1) EACA 3 (Horne J) (An administrator of an estate is a trustee for sale, but whatever powers he has under the Trustee Act and the Trusts of Land Act, as an administrator of an estate governed by the law regulating administration of estates, he remains subject to the general law governing administration of estates, and he may not sell immovable property vested in him without complying with the law governing administration of estates; if that law requires prior consent of the court before selling the property, he has to obtain such consent)

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CASE NO. 292

The deceased died intestate leaving certain immovable property. She was survived by her husband, who was to administer the property, and adult children. She was a Muslim, and her estate was to be governed by Shariah law. The administrator, together with the beneficiaries, desired to sell the immovable property and thereafter distribute it accordingly. They approached the court for directions on the question, whether an administrator is a trustee for sale of the immovable property, or whether it was necessary for him to obtain permission to sell the same under the Probate and Administration Act, 1881. It was directed that an administrator is a trustee for sale, but whatever powers the trustee might have under the Trustee Ordinance and the Trusts of Land Ordinance, the administrator of an estate appointed under the relevant law governing administration of estates, in this case the Probate and Administration Act, 1881, was still subject to the legislation governing administration of estates, and in that event he could not sell any immovable property vested in him without the prior consent of the court.

HORNE J: ... Land which becomes vested in a personal representative in trust firstly for the purposes of the administration and secondly in trust for the benefit of the shares in a Muslim deceased’s estate is not land ‘in trust for any persons by way of succession.’ That phrase denotes successive interests, and here there are no such interests. Wide as section 10 is, it requires always an instrument creating a settlement before land can be deemed to be settled land. Moreover, there is no necessity to strain the provisions of section 10 – which is a definition of settled land – in order to make an administrator a trustee for sale. An administrator being a personal representative was already a trustee for sale before that Ordinance was enacted.

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Section 2 of the Trustee Ordinance, 1929, contains a definition of ‘trust’ and ‘trustee’ as extending ‘to the duties incident to the office of personal representative:’ and a definition of ‘trust for sale’ which I need not quote; and a definition of ‘trustees for sale’ as meaning ‘the persons (including a personal representative) holding land on trust for sale.’ Part II of the Trustee Ordinance contains a considerable amount of law on the powers of trustees and personal representatives. The Probate and Administration Act is not a general law as to trustees, it is a special law dealing with the administration of ... estates ..., and section 90(3) provides that ‘an administrator may not, without permission of the court by which the letters of administration were granted: (a)

Mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property for the time being vested in him under section 4, or

(b)

Lease any such property for a term exceeding five years.’

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Whatever powers trustees in general may have under the general law as stated in the Trustee Ordinance, 1929, and the Trusts of Land Ordinance, 1941, those powers in the special cases covered by the Probate and Administration Act must nevertheless be exercised subject to the provisions of that Act. For it would be contrary to principle to say that a later general abrogates an earlier special one by mere implication (see Maxwell 8 ed 156). Whether an estate is administered under the provisions of the Indian Succession Act or the Indian Probate and Administration Act, the personal representative is a trustee of all property movable and immovable vested in him by either Act for the special purposes of the trust administration : The primary purpose is of course the payment of debts and the personal representative must sell so much of the property as may be necessary for that purpose: and subject to the trusts in favour of creditors the personal representative is constituted a trustee for the persons beneficially entitled to the property of the deceased. Accordingly as under the Trustee Ordinance, 1929, an administrator may be a ‘trustee for sale,’ he will also have such powers of a ‘trustee for sale’ under the Trusts of Land Ordinance as he may be able by the nature of his duties, to make use of; and that position is conserved, it appears to me, by section 56 of the Trusts of Land Ordinance which states that: ‘the provisions of this Ordinance relating to trustees for sale of land apply to personal representatives holding land upon trust for sale but without prejudice to their rights and powers for the purposes of administration.’

... It must not, however, be overlooked that although the administrator is a trustee for sale, he is, under the Probate and Administration Act, an administrator having control of property which is subject to the various rules for distribution of the various classes; and there may well be cases where the necessity to obtain the consent of the court will act as a safeguard both to creditors and beneficiaries. For the reasons above stated I am unable to hold generally that an administrator of an estate of any of the classes covered by the Probate and Administration Act is by reason of the Trustee Ordinance and/or the Trusts of Land Ordinance freed from the obligations imposed on him section 90(3) of the Probate and Administration Act.

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Shital Bimal Shah and others v Akiba Bank Limited and others Nairobi High Court (Milimani Commercial Courts) civil case number 567 of 2004 (Emukule J) (The duties of the personal representatives include that to settle debts, and to facilitate the payment of debts, personal representatives have the power to mortgage the estate property to raise the funds required for that purpose) CASE NO. 293

The residuary legatees of the estate of the deceased sought injunctive orders against the personal representatives of the deceased, after the personal representatives mortgaged the estate property ostensibly to clear certain debts. They contended that the debts sought to be cleared were not incurred by the deceased personally. It was alleged that the personal representatives by granting a charge over the estate property were in breach of their duties as trustees, and the charge purportedly created was a nullity.The court declined to grant the injunction, upon the finding that the powers and duties of personal representatives and trustees include payment of debts and mortgaging of property to settle debts, consequently the personal representatives had acted within their powers.

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EMUKULE J: The first obligation of the trustees, that is the second and third defendants, was to pay out the deceased’s debts and funeral and testamentary expenses. After making the above payments the executors were constituted into trustees with the express power upon the trust to sell call convert the same into money with power in their discretion to postpone such sale calling in and conversion and after paying thereout the debts funeral and testamentary expenses, and estate duty, to invest the net proceeds in authorised securities. ... whichever way one looks at this matter, the ... question ... is this, did the personal representatives as trustees of the estate of Vinod Laxmichand Shah have power to mortgage or charge Laxmi Plaza (the suit property) to secure the debts of (1) Laxmichand Keshavji and Sons (K) Ltd and (2) Fisatex (Kenya0 and the so-called L K Group to raise the sum of KShs 55 million when the plaintiffs were to eventually (upon the death of Vinod’s widow) own 15% of the suit property. Associated with this question are three cognate question.Firstly,whether the plaintiffs benefitted from the charge. Secondly, whether (Akiba Bank Ltd), the first defendant has a valid charge, and thirdly, whether the bank and the personal representatives intermeddled with the estate, contrary to section 45 of the Succession Act. The answers to these questions, and indeed the ... question must, in my view, depend upon the ultimate interpretation of the powers (if any) conferred upon personal representatives and trustees by a host of quite complex statutes, namely, the Succession Act., the Registration of Titles Act (RTA), the Trusts of Land Act (Chapter

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290, Laws of Kenya), the case law or judicial authorities and of course the views of the respective parties’ counsel on these matters. I have already stated ... that Vinod was half-owner of the suit property during his lifetime and his estate did become such half-owner upon his (Vinod’s) death. It is also common ground that the 1st defendant was aware of Vinod’s will to the effect that upon Vinod’s death, the plaintiffs were to become 15% owners of the suit property. This is also clear from the confirmation of the grant that the plaintiffs would become 15% owners of the property upon the death of their mother. The Succession Act, by section 45, declares as follows: ‘45(1) Except so far as expressly authorised by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with any free property of a deceased person.’

Section 45(2) declares that any person who contravenes the provisions of section 45(1) commits an offence, and is liable to a fine not exceeding KShs 10 000 and also to account to the rightful executor or administrator to the extent of the assets which he has intermeddled after deducting any payments made in the due course of administration. The first point to note from the provisions of section 45(2) of the Succession Act is that reference in section 45(1) of the Act to ‘intermeddle’ with the free property of a deceased person or persons not authorised by grant of representation. It does not apply to acts of personal representatives under a grant of probate. I am therefore unable to accept the contention by Senior Counsel that the second and third defendants intermeddled with Vinod’s free property ...

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... Vinod’s will provided in paragraph 6 thereof inter alia that ‘I bequeath my real and personal estate over which I have power to dispose by will unto any of my trustee UPON TRUST to sell, call in convert the same into money.’ The provisions of section 55 of the Succession Act provide that no grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any conversion of property unless and until the grant has been confirmed as provided by section 71 of the Act. The grant herein was confirmed on 17 March 2000, and the specific legacies were duly provided for in the sums of KShs 500 000 for each of the plaintiffs, and the third defendant, all shares in Laxmichand Keshavji and Sons (K) Ltd, Fisatex (Kenya) Ltd, Laxmideep Holdings Ltd and Silco Holdings Ltd. The residue of the estate would be held in trust to pay the reasonable expenses of Vinod’s wife (Sumita Vinod Shah) during her life and thereafter to accumulate 70% of the income less expenses incurred for Vinod’s wife and 30% for the son (Payas Vinod Shah). After Sumita’s death, 70% of the residuary estate would go to Paras Vinod Shah and 10% each to each of the plaintiffs, that is the deceased Vinod’s daughters. Senior counsel had submitted that the personal representatives had flouted the provisions of section 83(f) and (g). The duties of personal representatives are set out under the provisions of section 83(f) and (g) ... These provisions impose upon the personal representatives duties

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whether arising under intestacy or upon probate, and these are specific statutory duties, and not derived from the common law powers as executors. To the extent that the specific legacies may, in particular in the case of the three plaintiffs, not have been paid out, the second defendant and Anil Laxmichand Shah (the administrators) are now trustees to the beneficiaries under the will, not only of the specific legacies, but also of the residuary estate under Vinod’s will. That in my view is the total effect of section 84 of the Succession Act ... ... Upon the confirmation of the grant, the personal representatives having not been paid out the specific legacies constituted themselves into trustees for those legacies in the case of the plaintiffs, and indeed of the second defendant for those who may claim under him in the event of his own demise. Apart from the specific legacies, the personal representatives upon the confirmation of grant became trustees of the residuary estate constituted by the Laxmi Plaza. The executors and trustees of Vinod’s will having become trustees of the Laxmi Plaza, subject to the Trusts of Land Act ... Section 56 of this Act applies to personal representatives, and section 56 provides: ‘56.

The provisions of this Act relating to trustees for sale of land to personal representatives holding land upon trust for sale, but without prejudice to their rights and powers for purposes of administration,.’

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My understanding of this provision is that in addition to the powers and duties under sections 82 and 83 of the Succession Act, the trustees or the personal representatives are bound by the duties and powers that devolve upon trustees of trusts of land under the Trusts of Land Act. Under section 10 of the said Act Laxmi Plaza became settled land by virtue of the will of Vinod and thereby bound by its provisions which also conferred upon the said trustees the statutory powers set out in the said Act. Without setting out those powers in extenso would say that the said powers are set out in Part IV Powers of Trustees for Sale. Sections 17, 25, 30 – 32, 34 are strictly relevant ... The only limitation about the application of these cited provisions that is to say, the power of the trustees for sale, to charge or mortgage the land subject to trust for sale, is where the instrument creating the trust for sale, has expressed a contrary intention (section 37(1)). Paragraph 6 of Vinod’s will did not create any limitation to the powers of the trustees for sale, and that the powers of the trustees set out above, apply to that instrument. In any event any such instrument purporting to limit the powers of the trustees under the Trusts of Land Act would be to the extent of such limitation be void (section 54(1)). I have set out these provisions in extenso to show that the trustees upon land held on trust for sale have unfettered power and authority to raise money by charge or mortgage to pay off another such mortgage with the consent of the first encumbrancer, in this case, City Finance Bank Ltd whose charge was discharged upon the grant of the charge to the first defendant herein. ... Having analysed at length the applicable provisions of the Succession Act (Chapter 160, Laws of Kenya), and in particular sections 82 and 83 thereof and the Law of Contract Act (Chapter 23, Laws of Kenya) and the Registration of Titles Act, (Chapter 281 Laws of Kenya), I am satisfied that the second and third defendants were, as trustees of the residuary estate of the estate of the late Vinod, entitled in law, to mortgage the

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suit property. It does not count in my opinion, that the debt of Vinod was miniscule, or that it could have been paid out from other sources. I may add that so far as the plaintiffs were entitled to an unencumbered share of Laxmi Plaza it was also in their interest that the property was mortgaged to pay off the first encumbrancers, City Finance Bank and it did not matter that a surplus of mortgage money was applied as working capital for the benefit of the estate of which the plaintiffs as beneficiaries were and are uninterested. ... Keeping the above principles in mind, and having considered at length this application and issues raised in it, namely that the trustees of Vinod will had no authority to mortgage Vinod’s residuary estate, I am satisfied that the trustees of the said estate, that is to say, the second and third defendants had statutory right and capacity to do so. In my opinion therefore the plaintiffs have not satisfied the three cardinal principles for grant of temporary injunction. ***

14.5 POWERS

OF INVESTMENT

The rationale for the power of investment is similar to that for sale, mortgaging and leasing. In addition, it is used to preserve assets that are due to minor beneficiaries. Section 90 of the Law of Succession Act gives powers to personal representatives for investment of funds to provide for legacies. The Trustee Act is more elaborate on the powers of investment, as set out in Part II of the Trustee Act. Powers of personal representatives to invest the capital money of the estate are also elaborated in Part V of the Trusts of Land Act. Section 90 of the Law of Succession Act provides- ‘Personal representatives shall invest funds to provide for legacies in the manner and according to the provisions set out in the Seventh Schedule; and legacies shall carry interest in accordance with those provisions.’ Case number 294 illustrates the use of the power of sale to preserve the assets given to a minor.

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In the Matter of the Estate of Charles Odhiambo Odiawo (deceased) Nairobi High Court succession cause number 1525 of 1999 CASE NO. 294

(Koome J) (Where part of the estate is held in trust for a minor, directions ought to be given by the court on the investment of the trust funds) Facts are set out in the ruling.

KOOME J: This is an application by way of Originating Summons brought under Order XXXVI, rules 1 and 2 of the Civil Procedure seeking for determination of the following issues: (a)

In what manner should the proceeds of the Trust Account held at Victoria Commercial Bank Ltd. in the name of the minor be invested and how should it be disposed of.

(b)

Who should bear the costs of this application?

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The above issues have arisen because the court issued a certificate of confirmation of grant of representation to the estate of the deceased and no directions were given as to investment or disposal of the money’s held in the Trust Account. Prior to the deceased death he had operated two accounts with Victoria Commercial Bank one in his personal name and a second fixed account in the name of the minor to be operated solely by himself. Upon the issuance of the grant, the administrator of the deceased estate had been able to operate the deceased account. There was however no direction as to how the account operated for the child should be dealt with.The bank has no material interest in the matter save that they wish to be indemnified and absorbed from all the liability in connection with the Trust Account. The Administrator who is by virtue of the grant of letters of representation the trustee of a minor would wish the said account transferred to Standard Chartered Bank and the amount be deposited into a fixed deposit account and Bankers cheque be made for school fees of the minor and KShs 50 000 quarterly be made to her for the upkeep of the child. This trust account ought to have been brought to the attention of the court during the confirmation of the grant. The mother of the minor child is the lawful trustee as she holds the grant of representation. Accordingly I direct that the sum held on the minor’s account at Victoria Bank be deposited at Standard Chartered Bank in an interest earning fixed deposit. The account for the said minor shall be held and operated by the trustee. ***

14.6 PROTECTION

OF

PERSONAL REPRESENTATIVES

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There are provisions in the Law of Succession Act which protect personal representatives in the administration of estates, especially providing for indemnity for expenses incurred by personal representatives in the due administration of the estate. The relevant provision in the Law of Succession Act is section 92; which finds elaboration in sections 28, 29, 30, 31 and 32 of the Trustee Act, and sections 51, 52 and 53 of the Trusts of Land Act. Section 92 of the Law of Succession Act provides as follows: ‘92(1) Any person making or permitting to be made any payment or disposition in good faith under a grant of representation shall be indemnified and protected on so doing, notwithstanding any defects or circumstances whatsoever affecting the validity of the grant. (2) Where a grant of representation is revoked or varied, payments and dispositions made in good faith to a personal representative under that grant before the revocation or variation thereof shall be a valid discharge to the person making them, and a personal representative who has acted under the revoked or varied grant may retain and reimburse himself in respect of any payment made charge to the person making them, and a personal representative who has acted under the revoked or varied grant may retain and reimburse himself in respect of any payment made by him which any other person to whom representation is afterwards granted might have properly made: Provided that a personal representative who so acted shall account for all payments, dispositions, retentions or reimbursements made by him to the person or persons to whom representation is afterwards granted.’

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The decision in case number 295 demonstrates that where a business is carried on with authority the administrator would be entitled to indemnity, but not so, as in case number 296, where it is carried on without authority and ostensibly not for the benefit of the estate. Dowse and others v Ann Elizabeth Gorton and James William Gorton, and George Gray, Richard James Riley and William Sykes (1891) AC 190 (Lord Herschell, Lord MacNaghten and Lord Hannen) (Personal representatives are entitled to be indemnified out of the estate, where they have express or implied authority to act. That right of executors to indemnity out of the estate in respect of liabilities incurred by them applies against assets of the estate acquired since his death as well as assets existing at the time of death)

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CASE NO. 295

The administration action, by way of originating summons, sought determination of the question whether the assets of the businesses carried on by the testator at the time of his death, and then due and owing in respect of the said businesses, or belonging to the same ought to be applied in payment of the debts due to the testator at the time of his death in priority to any claim of his executors for indemnity. The House of Lords held that personal representatives are entitled to indemnity out of the estate, from assets in existence at the time of the testator’s death as well as that those acquired by the executors as the testator’s executors after his death

LORD HERSCHELL: With all deference, I am unable to concur in the distinction drawn between the assets which come into the hands of the executors at the time of the death of the testator, and that property which, in their capacity of executors, they afterwards acquire. The case of Abbot v Parfitt (1871) LR 6 QB 346 appears to be a distinct authority that property so acquired is as much assets of the testator as that which was in his possession at the time of his death. It was there held that the price of the goods sold to the defendant by the executors, who had carried on their testator’ business, no part of the materials of which had belonged to the testator, would, when recovered, be assets of the testator; and I do not think it is possible, on principle, to maintain the suggested distinction. Could an executor having property in his hands, to which his only title was that of executor, plead to an action by a creditor plene administravit? It seems to me that such a question admits of but one answer. I could indeed understand the view that, if the executors had come under liability in acquiring any asset in their hands, they would be entitled to an indemnity against such liability out of that asset before it could be made available for creditors. But this is not the effect of the declaration made by the

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court below. All after-acquired property, however acquired, even though it has been purchased with the proceeds of the sale of part of the estate passed by the testator at the time of his death, is treated as one subject-matter out of which the executors are entitled, if they cannot make good their claim to an indemnity generally, against the whole of the testator’s estate. I think it is clear that where a business has been carried on under such an authority as was conferred upon the executors by the will of this testator, they would be entitled to a general indemnity out of the estate as against all persons claiming under the will. but I take it to be equally clear that they could not, by reason only of such authority, maintain this right against the creditors of the testator.The executors would, no doubt, be entitled to carry on a business of the testator for such reasonable time as was necessary to enable them to sell his business property as a going concern, and would even, as against his creditors, be entitled to an indemnity in respect of the liabilities properly incurred in so doing . but, in the present case, the businesses were carried on for a period of three years; and it is obvious that this was not done merely for the purpose of effecting a sale. I agree with the contention of the learned counsel for the appellants, that the mere fact that a creditor stood by under such circumstances, and did not immediately take steps to enforce his debt, would not of itself entitle the executors, as against him, to be indemnified out of the estate . but when all the circumstances of the case are considered, I do not think this is the true view of them. ... under the circumstances I think the proper inference is that the businesses were not merely continued for the benefit of those interested under the will, but that they were also carried on with the assent of the representatives of Luke Turner, for the purpose of securing the payment of the debt due to them.

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If this be the true view it can hardly be contested, that the executors of Gorton are, as against the appellants, entitled to be indemnified out of their testator’s estate, against the liabilities which they have properly incurred ... LORD MACNAGHTEN: ... Asking for the usual order, the summons also asks in effect for a declaration that the executors are not entitled as against the testator’s creditors to any indemnity in respect of liabilities incurred in carrying on the testator’s businesses. In other words the appellants adopt the action of the executors, and take the fruits of their exertions in specie, and at the same time, and for that very same action, they claim to visit them with the loss of all their expenditure, and that without raising any issue which the executors could meet – without any finding that the assets have been wasted - without even any allegation of misconduct. On what ground, I ask, is this claim based? Is it merely on the ground that the executors have traded without authority and beyond the period required for getting in the assets? Then the claim must hold good whether the trading brings a profit or a loss. The result of the trading is immaterial. Is it on the ground that the trading has diminished the assets? There is no finding on the subject. There is no admission to that effect. There is no inquiry to ascertain the result of the trading. The penalty invoked is not measured by reference to loss or diminution of assets. My Lords, there is not, I believe, a shadow of authority for such a claim as that put forward by the appellants. It is contrary to all principle. Creditors of a deceased

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trader, whose business has been continued by his executors, when they come for an administration decree, must treat the continuance of the business either as proper or as improper. If the business has been properly continued as between executor and the creditors, or if the creditors choose to treat it so, which comes to the same thing, the executors are entitled to be indemnified against all liabilities properly incurred in carrying it on. If it has been improperly continued and the creditors choose to treat the continuance as improper (which, of course, they are not bound to do), they may proceed in the proper way to make the executors accountable for the value of the assets used in carrying on the business, and they may also follow the assets and obtain a charge on the business in the hands of the executors for the value of the assets misapplied, with interest thereon; and they may enforce the charge, if necessary, by means of a receiver and a sale. Then there can be no room for any claim to indemnity on the part of the executors. The charge in favour of the trust estate must be satisfied first. The executors can only take what is left. but the creditors must do one thing or the other.Though they are not bound by what they do in ignorance, and may, by leave of the court, sue in respect of wilful default after having taken the usual order, they cannot approbate and reprobate in one breath. They cannot claim the assets of the business as a going concern in the estate and condition in which those assets happen to be at the moment when they choose to intervene, and at the same time refuse the executors indemnity in respect of liabilities incurred in carrying on the business. It was a just observation on behalf of the appellants that an executor may be liable to creditors for conduct which no beneficiary could question, for beneficiaries are bound by the terms of the will, while creditors are not. But still in the administration of assets, as regards creditors as well as regards beneficiaries, executors are in the position of trustees, and it cannot be doubted that if a cestui que trust not under disability sanctions a departure from the strict line of duty prescribed by the conditions of the trust, he cannot afterwards be heard to complain of that departure, or treat it as a breach of trust.

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... I cannot doubt that the proper conclusion is that the testators businesses were carried on by the executors under the power contained in the will, with the sanction of the appellants, for the benefit of the estate, and in the interest of the creditors as well as in the interest of the beneficiaries. One word as to the extent of the executor’s indemnity. The order under appeal limits it to that part of the testator’s estate which is described in the order as having been ‘acquired by the executors since the death of the testator.’ I am not aware of any authority for splitting the assets in that way. If a testator’s business is carried on after his death, in accordance with the provisions of the will, which, I think, is the true view in this case, the indemnity of the executors is only limited by the amount of the assets which the testator has authorised the executors to employ in the business. If the business is carried on by the executors at the instance of the creditors without regard to the terms of the will, the executors, I suppose, have the ordinary rights of agents against their principals. But I can see no reason in any case for limiting the indemnity to that portion of the assets which may have come into existence or changed its form since the testator’s death. An unsecured creditor has no right against any specific part of the assets. He can have no greater right in respect of one part of the assets than another. It is all one estate. His right is to see that the executors get in the estate and apply it in due course in payment of debts, and he may sue in equity, as the appellants have done to enforce that right ...

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Rohit C Doshi v Nawaz Transport Company (1982-88) 1 KAR 75 (Madan and Law JJA and Hancox AgJA (If the personal representatives of the deceased carry on any business of the deceased, whether or not with authority to do so, they will be personally liable on all debts and contracts) CASE NO. 296

The deceased person had carried on a transport business under a business name.After his death, his administrators continued to carry on the business under the same name. When a debtor brought an action against the business in its firm name, the administrators resisted the action arguing that the suit was incompetent since the business was a sole proprietorship belonging to a dead person. It was held that the administrators were liable for the debts of the business, since they personally carried on the business of the firm after its proprietor’s death.

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MADAN JA: The administrators are still carrying on business in the firm name more than three years after the grant of letters of administration were issued to them. The registration under the Registration of Business Names Act (499) shows that Mohamed Haji Mirdor is carrying on business under the business name of Nawaz Transport Company since 4 August 1971. Upon his death the administrators did not comply with section 9 of the Act and file a notice of change in the particulars with the registrar general or with rule 6 of the Registration of Business Names Rules 1975 when they obtained letters of administration with power inter alia to continue running the business of the deceased as they seemed fit. Order 29, rule 9 makes useable businesses in the name in which they are carried on by persons who thus conceal their names. That is what the administrators are doing in this case, but they say the firm cannot be sued in its own name even with respect of an acknowledged debt owing by it. That is plain nonsense. If successful, the administrator’s contention would open the door wide to fraud. The suit was filed against a dead person, it should be looked upon as having been filled against a business firm which is carrying on business and may be sued under the rules of Order 29, an artificial person though it may be but it is created by statute by the application of the Civil Procedure Rules . The decree will not be a nullity ... LAW JA: In the instant case, the business in the registered firm name has been carried on by two individuals, the personal legal representatives of the deceased Mirdor, whose name still appears in the register as the person carrying on business under the firm name although he died more than three years ago. It would be wrong in principle, in my view, to allow these two individuals to claim protection from the legal process against the firm by pretending that the firm ceased to exist with the death of Mirdor. The firm did not cease to exist, it has been carried on by the two individuals not only in their capacity as administrators of Mirdor’s estate but also in their personal capacities as ‘persons’ within the meaning of the word ‘person’ in Order 29, rule 9; and ... in accordance with section 3(4) of the Interpretation and General Provisions Act (Chapter 2)

CHAPTER 15 PAYMENT

OF

EXPENSES, DEBTS LEGACIES

AND

PECUNIARY

After collection of assets, the next duty of the administrators is settlement of debts and liabilities. This is provided for under section 83(a), (c) and (d) of the Law of Succession Act, and section 24 of the Public Trustee Act. Any expenses incurred in the due administration of the estate should be borne by the estate, as demonstrated by cases numbers 297 and 298. Case number 299 shows that specific bequests are not to be utilised to settle debts. Section 83(a), (c) and (d) of the Law of Succession Act provides: Personal representatives shall have the following duties : (a)

To provide and pay out of estate of the deceased the expenses of a reasonable funeral for him,

(b)

To pay out of the estate of the deceased including the debts owing to him and moneys to his personal representatives by reason of his death;

(c)

To ascertain and pay out of the estate of the deceased, all his debts;

In Re Marquordt, deceased, ex-parte Administrator-General [1913-1914] 5 EALR 162 (Hamilton CJ)

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CASE NO. 297

(Where expenses are incurred by an administrator for the benefit of a better realisation of mortgaged property, although with the approval of the and the joint action of the mortgagees, being for the benefit of the estate generally, such expenses must be borne by the estate) Facts are set out in the ruling.

HAMILTON CJ: The Administrator General, as administrator of the estate of F Marquordt, deceased, acting in conjunction with ... the solicitors for the mortgagees of a farm in Fort Ternan belonging to the deceased, decided to endeavour to obtain a better price for the property by subdividing it and putting it up for auction in lots. This step was taken on expert advice, and might reasonably have been expected to prove of considerable benefit to the estate. The mortgages on the property, together with interest due on the date of sale, amounted to £5 003 6s 4d. The expectations of a good sale of the subdivided plots were not realised, and the whole block was eventually bought in for the mortgagees by the solicitors for a sum of £4 700. The costs of the subdivision and sale charges amounted to Rs 3 575-39, and I am now asked to decide whether these expenses should be borne by the general estate of the deceased or come out of the price paid for the property by the mortgagees.

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Now, had expectations been realised, and the subdivided property been sold for a sufficient price to pay off the mortgage debt, this question would never have arisen, as the proof of benefit to the estate would have been self-evident, and the expenditure incurred by the administrator would have been clearly justified as costs of realisation properly incurred. As the event has proved, however, the price realised for the security has been insufficient to pay the mortgages in full, and the mortgagees can still prove for the balance of their debt along with other unsecured creditors against the general estate. But because the expenses incurred by the Administrator General in making the subdivision in the hopes of benefit to the estate have failed to secure that benefit it cannot, I think, be argued that these expenses must be borne by the mortgagees, who, though they may have hoped thereby to realise their security in full, might have adopted other methods of dealing with their security, and could not in any event have benefitted beyond the extent of their claim. On the grounds, therefore, that the expenses were incurred for the benefit of the estate, I direct that they be a charge against the general estate of the deceased. In Re, the Estate of G W L Cane, deceased and In Re, the Trusts of the said G W L Cane [1919-1921] 8 EALR 26 (Sir R W Hamilton CJ) (Personal representatives and trustees are entitled to remuneration for managing the property of the estate of a deceased person, but they would not be called upon to make good a loss arising from breach of trust where such loss is offset by gains elsewhere)

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CASE NO. 298

The deceased left a will appointing his sister and brother as trustees. The sister drew insurance money and used it to maintain the children of the deceased, while the brother personally managed his property in East Africa, but without paying off an overdraft that the deceased had with a bank. The value of the East Africa property increased, however, following a general increase in land values. The brother sought remuneration for managing the assets, and the court was also asked to give directions as to the liability of the trustees with regard to the increase of the bank overdraft. It was held that the brother was entitled, as trustee, to remuneration for managing the East Africa property, and that the trustees were liable to make good the increase in the overdraft although they were responsible for it, since the loss arising was made good by the increase in the value of property.

SIR R W HAMILTON CJ: Having regard to the peculiar circumstances of this case, and the fact that the trustee in East Africa, whose bona fides is not questioned, managed the property in person giving time, pains and trouble in a proper manner and so obviated

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the cost of a paid Manager, I think that the court would be justified in awarding him remuneration for his services this is a departure from the general rule, but as Lindley LJ said in Re Bignell (1) (1892) ChD 63: ‘It is urged that the settled practice is not to give remuneration to a trustee who is appointed receiver. The authorities only go to this, that the court does not generally appoint a trustee to be receiver at all, and that generally he will not receive remuneration if he is appointed. But there is no inflexible rule.’ In that case, though remuneration was not mentioned in the appointment, the executors of the trustee after her death claimed and obtained an annual salary for the services of the trustee as receiver of the business during her lifetime. Again in the case of in re Freeman’s settlement Trusts (2) 37 ChD 148 the court allowed remuneration to the trustee of an estate for management, and Mr Farwell in the course of his argument referred to the authority for a retrospective allowance to a trustee for time, pains and trouble in the management of an estate. There would therefore appear to be no decision against a departure from the general rule where the circumstances of the case justifies such a departure, and I think such circumstances exist in the present instance.

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The amount claimed for salary is Rs 15 160 spread over a period of 61/3 years; this figure is reasonable and I therefore sanction it. On the other hand the money derived from the insurance policy was not expended as directed by the will in paying in the first place the testator’s debts, with the result that the overdraft at the bank mounted up with added interest so that there is an apparent loss to the estate on this particular head of some £300. As matters have turned out the misapplication of this money, which was by the co-trustee in England, has not in fact prejudiced the estate as might have been the case had land values not improved, but I have to consider whether the difference is in actual cash to the estate should not be made good. For this purpose the objects of the will must be looked at and the provisions made to obtain those objects. Now, the objects of the will are the maintenance, upbringing and benefit of the children and the testator after directing the payment of his debts out of the policy moneys directed that if necessary his remaining estate should be realised for the same purpose. What in fact has happened is that the policy moneys were applied in the first instance to the maintenance of the children and consequently the immediate necessity did not arise to raise money on or to convert his real estate to that purpose, while his debt to the bank at the same time was growing. In short the payment of the debt was postponed with the result that the beneficiaries are in fact today in a better position than they would have been but for the postponement, owing to the increased capital value of the land. On this view of the matter of the estate has not in effect suffered owing to the breach of trust and therefore it would, I consider, be inequitable to call on the trustee to make good an apparent loss where no loss in fact has been suffered but a benefit has accrued. As regards paragraph 2 of the application there appears to be no necessity for the trustees to get the sanction of the court in the case of sales for cash but it would be advisable that such sanction should be obtained where it is proposed that payment should be by instalments spread over a term of years with security.

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Kamrudin Mohamed and another v Hilda Mary Coelho and others [1965] EA 336 (Sir Udo Udoma CJ) (A specific bequest is not to be utilised to settle the debts of the estate, except as a last resort) CASE NO. 299

A testator bequeathed a specified leasehold property to his wife, and gave directions regarding the payment of certain debts. The trustees named in the will brought an originating summons seeking directions whether the property bequeathed to the widow could be utilised to settle debts owing by the estate. It was held that since the specified property was not under the terms of the will to be utilised to settle the debts owing by the estate, it could not be touched in that respect, except as a last resort.

SIR UDO UDOMA CJ: The provisions of sections 154 and 291 of the Succession Ordinance are in the following terms: ‘154. Where property specifically bequeathed is subject, at the death of the testator, to any pledge, lie or encumbrance, created by the testator himself or by any person under whom he claims, then, unless a contrary intention appears by the will, the legatee, if he accepts the bequest, shall accept it subject to such pledge or encumbrance, and shall (as between himself and the testator’s estate) be liable to make good the amount of such pledge or encumbrance.’ A contrary intention shall not be inferred from any direction which the will may contain for the payment of the testator’s debts generally.’

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‘291. Where there is a specific legacy, and the assets are sufficient for the payment of debts and necessary expenses, the thing specified must be delivered to the legatee without any abatement.’

I do not think that section 291 of the Succession Ordinance is applicable to the facts and circumstances of the instant case. I am of the view that those provisions only apply to a situation in which the property specifically bequeathed had not in any way directly or indirectly been charged with the payment of the testator’s debts. On the facts of this case, I find that the testator by depositing with the bank the title deed of 11, Cooper Road, Kampala, together with other properties real or personal by way of security for advances made to him by the bank, had expressed a desire that the property be taken into account with the other properties so charged for the payment of debts owed to the bank. It seems clear therefore that 11, Cooper Road, Kampala, though not primarily charged with the payment of the debt, ought to make contribution towards the payment of such debt. I think also that it would be wrong to hold that by cl. 4 of the will of the testator had specifically charged the residue of his estate with the payment of his debts. The provision of cl. 4 of the will is in the usual terms and merely enjoins the plaintiff to pay the testator’s debts, which the executors were bound to do in any event. In any case, I think the provision such as is contained in cl. 4 is expressly excluded by the

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provisions of s 154 of the Succession Ordinance. If it was the intention of the testator that 11, Cooper Road be not burdened with the testator’s debts that intention cannot be read into cl. 4 but should have been expressed in cl. 3 of the will, the provisions of which are as follows: ‘3.

I bequeath my leasehold property registered under Leasehold Register Volume 276, Folio 14 and known as Plot number 6, Shop Site, Kololo to Mrs Iris Hilda Mary Coelho wife of James Salvador Walter Coelho, Clerk of the Police Department, Kampala, Uganda.’

On a mere matter of construction, it seems apparent that the above provision does not exempt 11, Cooper Road from liability for the payment of the testator’s debt.The testator has not therein expressed any contrary intention having regard to the terms of section 154 of the Succession Ordinance. In Re Biss, Heasman v Biss andothers (3)89 it was held that, on the application of section 35 of the English Administration of Estates Act, 1925, which had replaced the Real Estates Charges Act, 1854, the fact that the testator therein had directed payment of his debts out of his residue was not enough to signify contrary intention. The provisions of section 35(2) of the English Administration of Estates Act, 1925 are similar to the provisions of section 154 of the Succession Ordinance.

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There the testator in 1960 borrowed £10 000 from a bank and secured repayment thereof with: (a)

Mortgage of property called Denver Lodge;

(b)

Mortgage of other real property;

(c)

A charge on shares in a building society; and

(d)

A guarantee by his wife.

By his will dated 2 November 1951, the testator devised Denver Lodge specifically to the plaintiff absolutely and gave the residue of his property, which included real property mortgaged to his bank to secure repayment of the £10 000 and the building society shares so mortgaged, to his trustees on trust after payment thereout of all his debts, funeral and testamentary expenses, to divide the same equally between two other persons. The testator further provided by his will that if the plaintiff or her successors in title desired to sell Denver Lodge, the purchaser should have an option to buy it for £2 000. The secured debt due to the bank at the testator’s death was about £7 328, and the proportion attributable to Denver Lodge amounted to about £2 000. On the question what part, if any, of the debts to the bank outstanding should be borne by Denver Lodge, it was held that so much of the property charged to the bank comprised in the residuary gifts should be applied towards the discharge of the bank secured debt before the property specifically devised, namely Denver Lodge. In Leonino v Leonino (2) a testator, a merchant, was in the habit of borrowing money from his bank from time to time; depositing securities with them upon the occasion of each advance ; and, on 29 March 1876, his total indebtedness amounted to £62 000, for which his bank held various stocks and shares as security. On 30 March 1876 the testator applied for a further advance of £15 000 and executed a

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memorandum by which he charged that sum upon his freehold property at Caterham, and agreed that the security was to cover any money due from time to time from him to his bank. He at the same time deposited the title deeds of the Caterham property with his bankers. He received the £15 000 and also further advances at subsequent dates; and he also subsequently deposited with the bankers certain further securities, including the title deeds of freehold and leasehold property, stocks and shares, but no subsequent memorandum was executed. Some of the stocks and shares were sold by the bankers in the testator’s lifetime and the proceeds applied in reduction of the debt which at his death stood at £28 625. It appeared from the memo book kept by the testator and from his ledger that the successive advances and the successive deposits were treated by him as forming one running account. By his will, he devised his Caterham property to certain persons and devised, and bequeathed his residuary real and personal estate in trust for sale and to divide the proceeds, after payment thereout his debts, among certain other persons. It was held that the debts due at the testator’s death and the interest thereon from that date must be borne by the various properties then held by the bankers’ rateably according to their respective values at the death of the testator. Of the two decisions set out above, I am more attracted to the decision given in Re Biss (3) as I am inclined to the view that in the circumstances of the instant case the residue appears to be adequate to meet the debts of the estate, without the plaintiff having recourse to the leasehold property specifically bequeathed to the first defendant since on the evidence, the debt has already been fully paid by the plaintiff herein, albeit by the realisation of some of the securities mortgaged to the bank. This court however has no information as to the balance of the residue.

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On the other hand there are also other beneficiaries entitled to share in the residue and whose interest cannot be ignored. For, from the will, it seems to have been the intention of the testator that all beneficiaries should benefit from his estate. This court is of course not bound to adopt and apply the principles contained in either of the decisions in the two cases referred above, based as they were on the construction of the wills concerned in both cases and the application of English statutes. The decision of this court must therefore be governed by the terms of the testator’s will and the application of the Succession Ordinance to the facts established on the evidence. On a careful examination of the provisions of cl 3 of the testator’s will and the facts and the circumstances of the instant case, and having regard to the terms of s. 154 of the Succession Ordinance, I have reached the conclusion that the question whether Mrs Iris Hilda Mary Coelho, a beneficiary under the will of the deceased, is entitled to receive the premises known as 11, Cooper Road, Kampala, free from any obligation to contribute to the National Bank of India Ltd (now the National and Grindlays Bank Ltd) in respect of the sum of KShs 148 026-92owing to the said bank by the estate of the deceased, must be answered in the negative. I am inclined to the view that it will be equitable that the property 11, Cooper Road should contribute towards the payment of the testator’s debts owed to the bank at the date of the death of the testator. That view would best accord, I think, with the intentions of the testator. For by depositing the title deed of the property with the bank to secure his debts, it must

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be presumed that it was his intention that the property be also charged with other properties with the debt, especially having regard to the fact that the deposit was made after the property had been bequeathed to the first defendant.

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I think the proper order to make in the circumstances should and must be, that for the payment of the testator’s debt to the bank, the plaintiff should first have recourse to the property of the testator not specifically bequeathed or devised, only resorting to 11, Cooper Road as the last resort. Direction accordingly. Costs of this application to be paid out of the estate.

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CHAPTER 16 DISTRIBUTION

OF THE

ESTATE

16.1 INTRODUCTION Distribution of the net estate follows payment of debts and liabilities, and of the testamentary and administrative expenses. The provisions governing distribution of estates are sections 82(c), (d), 83(f) and 91 of the Law of Succession Act.

16.2 PENDENCY

OF

CONTENTIOUS PROCEEDINGS

The estate should not be distributed where there are contentious proceedings pending, whether for revocation of grant, reasonable provision or any other. The `````````````````````rationale is that the determination of such proceedings may affect the distribution, and it would be prudent therefore to await the outcome of any such proceedings. Section 72(a) provides: ‘72.

No grant of representation shall be confirmed until the court(a)

Is satisfied that no application under Part III is pending ... ’

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Case number 300 relates to distribution of an estate during the pendency of an application for revocation of a grant.

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Okoyana v Musi and another [1987] KLR 104 (Platt, Gachuhi JJA, and Masime AJA) (Distribution of the estate should not be done during the pendency of a contentious application or before the person purporting to distribute or participate in distribution has obtained representation to the estate) A grant made to the administrator of the estate of a deceased person was challenged by the deceased’s widow, who filed an application for the revocation of the same on the ground that the application for grant omitted relevant material. While the application for revocation was pending, the parties entered into a consent order to facilitate the subdivision of the land making up the estate and to have the subdivided land given to them.The administrator later appealed against the consent order. The appeal was allowed. It was held that distribution of the estate could not be done before the revocation application was dealt with, since it was still uncertain as to whom the administrator of the estate was, and the widow could not agree to distribute property before letters of administration were made to her.

CASE NO. 300

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PLATT, GACHUHI JJA AND MASIME AJA: ... The court has understood the grounds of appeal to mean that on the actual application before the court, no such consent order could be entered. It was invalid and the terms of that order were null. At any rate, that is the position taken now for two reasons. The first is that there could be no distribution of the estate of the deceased whilst it was uncertain who the administrator or administrators actually were. If the grant to Ibrahim was revoked, then the registration of the land in his name was in doubt. If Ibrahim had no sole grant, he would act unlawfully. The same goes for Ziporah. She could not agree to distribute the estate before she had letters of administration (see Burns v Campbell (1952) 1 KB 15). Neither of them could give David Wafumbi a share. It is not possible to enter into a consent judgement to carry out an unlawful purpose. Any such proceedings are null and void. (See 1 Seton on Judgements and Orders (7 ed) page 124 approved in Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266 at 269). ***

16.3 ASCERTAINING

THE

BENEFICIARIES

AND

CREDITORS

The assets making up the estate are ideally available for distribution to two classes of persons; creditors and heirs or beneficiaries. Payment of debts and liabilities takes precedence over the distribution of the estate. To facilitate the payment of debts and liabilities, on the one hand, and the distribution of the estate, on the other; it is important that the creditors and beneficiaries be ascertained first. This exercise obviates disputes later with creditors or beneficiaries who are likely to bring proceedings against the

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estate if they are left out. The relevant provision is the proviso to section 71(2) of the Law of Succesion Act. The proviso to section 71(2) of the Law of Succession Act states: ‘71(2) ... Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.’

In the Matter of the Estate of Muniu Kamau (deceased) Eldoret High Court succession cause number 7 of 1998 (Nambuye J)

CASE NO. 301

(The mental instability of survivor of the deceased does not disentitle the person from benefitting from the estate of the deceased, and in distributing the estate the court takes into accounts the needs of all the survivors) During the hearing of a distribution dispute the court noted that one of the survivors of the deceased was mentally unstable. It was stated that such a survivor has to be provided for from the estate, and disability did not disentitle him from benefiting from the estate of the deceased intestate. The court further stated that in the distribution of the estate the court takes into account the needs of all the beneficiaries)

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NAMBUYE J: It has also come out clearly that there was an attempt to state the wishes of the deceased when he was alive but in law these were not carried into effect and in law they can be termed as incomplete gifts. They cannot be effected by this court. It follows that all the assets are at the disposal of the court and are to be distributed by it. When doing the distribution this court has to take into consideration the fact that all beneficiaries are adults. There is only one who is under a disability due to the fact that he is mentally unstable. The fact of instability does not disentitle him from benefiting from the estate. He should have been included as a beneficiary. As observed earlier on, one witness (PW4) stated that the brother should take care of him. The immediate brother should take care of him, but he should not do so with his own resources but with income from the deceased’s estate as he too is a beneficiary. The beneficiaries are therefore 13 and not 12. Secondly, when doing distribution the court has to consider the needs of each beneficiary. It also has to consider the disharmony displayed in the evidence and try as much as possible not to join up beneficiaries who do not agree or get along within one property. The court has to try as much as possible where applicable and circumstances permit, to make dispositions which are likely to bring the dispute to an end. ***

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16.4 TRANSITION

RROM

PERSONAL REPRESENTATIVE

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TO TRUSTEE

The office of the personal representative is, in strict terms, not that of a trustee, although in many respects he stands in a position similar to that of a trustee. However, in certain circumstances he is in fact a trustee. At a certain point during the process of administration he transits from personal representative to trustee. The provisions covering this subject are in sections 84 of the Law of Succession Act, and generally in the Trustee Act and the Trusts of Land Act. Section 84 of the Law of Succession Act provides as follows: ‘84

Where the administration of the estate of a deceased person involves any continuing trusts, whether by way of life interest or for minor beneficiaries or otherwise, the personal representative shall, unless other trustees have been appointed by a will for the purpose of the trust, be there trustees thereof: Provided that, where valid polygamous marriages of the deceased person have resulted in the creation of more than one house, the court may at any time of confirmation of the grant appoint separate trustees of the property passing to each or any of those houses as provided by section 40.’ The Trustee Act, at section 2, defines ‘trust’ to include ‘the duties incident to the office of a personal representative,’ and ‘trustee’ to include ‘where the context admits ... a personal representative.’ A ‘trustee for sale’ is defined to mean ‘the persons (including a personal representative) holding land on trust for sale.’ ‘Trustees of land’ are defined in section 2 of the Trusts of Land Act to mean ‘the persons (including a personal representative) holding land on trust for sale.’

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Cases numbers 302 and 303 deal with the transition from personal representative to trustee.

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George Attenborough and Son v Solomon and another (1913) AC 76 (Viscount Haldane LC, Lord Atkinson and Lord Shaw of Dunfermline) (The transition from personal representatives to trustees, with respect to the capacity in which they hold the property of the deceased, does not occur automatically, but only upon the personal representatives assenting the property to themselves in their capacity as trustees after complying with the necessary formalities. The assent of the personal representative can be inferred from conduct)

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CASE NO. 302

Certain articles of silver plate belonging to the testator were pledged by one of the executors of the will of the deceased with a pawnbroker. The said articles fell into the hands of the executor in his capacity as the deceased’s executor and trustee. The issue was whether the respondents, the executors and trustees of the estate of the deceased, could recover the articles from the pawnbroker, the appellants. It was held that the executors had assented the property to themselves and had become joint-trustees with respect to it; consequently the one executor had no property to pass as executor to the pawnbrokers. In the result the appellants had no answer to the respondents’ case.

VISCOUNT HALDANE LC: ... The general principles of law which govern this case are not doubtful.The position of an executor is a peculiar one. He is appointed by the will, but then, by virtue of his office, by the operation of law and not under the bequest in the will, he takes a title to the personal property of the testator, which vests him with the plenum dominium over the testator’s chattels. He takes that, I say, by virtue of his office.The will becomes operative so far as its dispositions of personality are concerned only if and when the executor assents to those dispositions. It is true that by virtue of his office he has a general power to sell or pledge for the purpose of paying debts and getting in the money value of the estate. He is executor and he remains executor for an indefinite time. Authorities were cited to us ... to the effect that an executor can sell at a period long after the death of the testator, and that where it is a general question of conveyancing, as for instance in the case of the sale of leaseholds by the executor, the purchaser is not entitled to make requisitions as to whether debts remain unpaid, because the executor’s office remains intact and he may exercise his functions at any time.That is true as a general principle, and I have no comment to make upon it except that it is qualified by another principle, which is this: The office of executor remains, with its powers attached, but the property which he had originally in the chattels that devolved upon him, and over which these powers extended, does not necessarily remain. So soon as he has assented, and this he may do informally and the assent may be inferred from his conduct, the dispositions of the will become operational, and then the beneficiaries have vested in them the property in those chattels. The transfer is made not by the mere force of the assent of the executor, by virtue of the dispositions of the will which have become operative because of this assent.

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Stephens and six others v Stephens and another [1987] KLR 125 (Nyarangi, Apaloo, JJA, and Masime AJA) (The personal representative of the deceased has a duty to pay all the debts of the estate and thereafter distribute the rest of the estate to the beneficiaries. The personal representative, as administrator of the estate under letters of administration, is a trustee and he stands in a fiduciary relationship to all who are beneficially interested in the estate. His duties in the estate continue until he distributes the estate when his undertakings to the court are discharged. The administrator has a duty to account to the beneficiaries of all his dealings in the estate of the deceased. The object of the Limitation of Actions Act is to prevent stale claims and the limitation period for breach of trust runs from the date of breach and not from the date of the death of the deceased).

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CASE NO. 303

The deceased died intestate in 1958. He left some property, the most valuable being a plot at Kisauni, Mombasa. He was survived by a wife and six children of his own, the appellants in the appeal. There was also his nephew, to whom he was in loco parentis, and an adopted son, the respondents in the appeal. The Kisauni plot was encumbered, the family decided that the nephew should take out letters of administration and thereafter execute a mortgage over the property in an arrangement to clear the debts and preserve the property. He took out letters in 1959 and had the debts repaid by 1974. In 1979 he caused the property to be conveyed to the joint names of himself and the adopted son of the deceased. The rest of the family discovered this conveyance in 1981, where upon they filed suit to secure their interests; their suit being founded on breach of trust on the part of the nephew of the deceased.The High Court found in favour of the nephew and the adopted son of the deceased on the ground that the rest were guilty of laches and that the suit was statute-barred. On appeal the Court of Appeal held that the nephew was guilty of breach of trust and that the suit was not statute-barred as the limitation period for actions founded on breach of trust begin to run from the date of the commission of the breach of trust and not from the date of the death of the deceased. It was held that the respondents owned the property jointly with the rest of the family members and the land registrar was directed to rectify the relevant register accordingly.

APALOO JA: So as a trustee, the first respondent incurred the responsibility of honest, efficient and high minded dealing with regard to the trust estate which a court of equity demands of all trustees, he also incurred an obligation to account to the beneficiaries of his dealings with the property . Indeed, the duty to account is the main vehicle by which a court of equity enforces the trustee’s fiduciary duty.

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The first respondent’s duty can really be stated on first principles. As the personal representative of the deceased, he owed a duty to pay all the debts of the intestate and thereafter, distribute the rest of the estate to his co-beneficiaries. It is common ground that the first respondent did not render an account of his administration to the widow or his brothers and sisters. What he did instead, was to convey the plot in dispute which he owned jointly with the widow and seven other beneficiaries, to himself and the second respondent, the deceased’s adopted son. He paid off the mortgage and in 1974, five years afterwards, that is in 1979, he made the joint conveyance to himself and the second respondent. The curious result of this, was that the widow and the natural children of the deceased were deprived of their only patrimony. According to the evidence, they learnt of their fiduciary’s action in 1981. Their reaction was perfectly understandable,. They proceeded to lodge a caveat against the respondents registered title and followed this soon afterwards with the present plaint. On his own admission, the first respondent did not inform the widow or his other brothers and sisters when he changed the ‘group’ character of the property into his and the second respondent’s individual ownership. So in the plaint, the appellants ask the court to order the first respondent to account, distribute the rest of the assets to the beneficiaries and most importantly, declare them beneficial owners of the suit plot and direct a rectification of the register of titles to reflect this position.The facts as I have narrated them were not controverted. Indeed, subject to certain immaterial averments which I will mention presently, the first respondent in converting the trust property into his own and that of the second respondent, he was guilty of breach of trust. That equitable ‘wrong’ is a mixed bag of many deviations from the first duty if fair, efficient and honest dealing by a fiduciary and which consists of both commissions and omissions. At page 662 of Nathan and Marshall Cases and Commentary on the Law of Trusts, it is said:

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A trustee is guilty for a breach of trust if he fails to do what his duty as a trustee requires or if he does what as a trustee he is not entitled to do.’

On the facts, the first respondent did not only fail to do his duty of accounting to the beneficiaries and yielding up to them such part of the estate, as they may be beneficially entitled to, but he wrongly converted the only substantial property in the estate to his own name and that judgement in favour of the appellants for the relief they prayed for was a matter of course.They were entitled ex justitiae to the reliefs they sought on the plaint. But strange as it seems, they failed in total. That brings me to the basis on which they resisted the appellants’ claim. They say two things, namely, (1) that the appellants lost interest in the plot and (2) their claim was time-barred. The judge found in their favour in both counts. The appellants invite us to say the judge was in error on both grounds. The facts, per se, do not reflect creditably on the respondents, so the main plank on which they rested their defence was the Statute of Limitation (Chapter 11 Laws of Kenya, 1948 since repealed). they say the appellants ‘right to receive or have a share in their father’s estate’ accrued at the date of his death, and the suit to recover the same was barred after twelve years, namely in January 1970 and that the present suit brought in 1981 was time-barred . They took their stand on section 3 of the Limitation Ordinance, Chapter 11, Laws of Kenya 1948. The learned judge agreed.

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Is this a proper appreciation of the appellants’ complaint? At no time was the issues raised on the appellants’ entitlement to the inheritance of the suit plot. By common consent, both the appellants and the respondents were the successors and beneficial owners of the plot. In order to raise funds to pay off an encumbrance on the property, they authorised the first respondent to obtain grant of letters of administration and vest title in himself to enable him do this. In this capacity, the plot was vested in him. He kept faith with his co-beneficiaries. When they became cognisant of it in 1981, they immediately brought plaint. The object of the Limitation Act is to prevent the agitation of stale claims which by reason of the lapse of time, would be hard or inequitable to defend. The breach of fiduciary duty about which the appellants complained was committed in 1979. By what process of reasoning can it be said that their cause of action accrued in 1958? The philosophy underlying the English Limitation Act seems to be that where confidence is reposed and abused, a defaulting fiduciary in possession of trust property or which he converted to his use, should not be shielded by time bar. So no plea of limitation is available to a fiduciary in such a case (See section 19(1) of the Limitation Act 1939). The Parliament of Kenya clearly shares that policy and in the Limitation of Actions Act (Chapter 22) enacted a similar provision in almost identical language. Section 20(1)(b) of the Limitation of Actions Act (Chapter 22) provides that:

‘None of the periods of limitation prescribed by this Act apply to an action by a beneficiary under a trust which is an action: ‘to recover from the trustee, trust property or the proceeds thereof in the possession of the trustee or previously received by the trustee and converted to his use.

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That was precisely the reliefs which the appellants sought in regard to the suit plot. In my opinion, no period of limitation applies in this case and I am of the respectful disagreement with the learned judge’s contrary holding on this point. If this is the right view to take, the same must hold good for the consequential relief of account. As I said, the second ground which the respondent proffer for their action, is that the appellants ceased to be interested in the property. The apparent reason of this, is that they did not contribute one cent towards the liquidation of the mortgage debt. I do not see how that fact per se, can result in extinguishing their beneficial ownership in the property. They did not execute any release of their beneficial ownership in the property to the respondents and were indeed not asked to do so. It is impossible to accept that this unilateral and furtive action of the first respondent can have the legal effect of determining their interest. Had the first respondent performed his duty and rendered accounts to the beneficiaries and satisfied them of their indebtedness to him, they would, in all probability, have paid their just dues. At least, even on the first respondent’s own showing, neither the widow nor the female beneficiaries were expected to contribute to the repayment of the mortgage debt.Yet in one fell swoop, he purported to extinguish their interest by the conveyance impugned in this suit. in my judgement, he has failed to achieve that result and his action amounts to nought. Yet, the learned trial judge felt able to conclude that: ‘The court accepts Mr Anjarwalla’s submission and holds that the transfer of the plot to himself and the second defendant was not in breach of any law.’

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I profoundly disagree. Such transfer of the plot without the knowledge of the appellants was in breach of the first respondent’s fiduciary duty to them and was a flagrant breach of trust. It follows that the appellants are entitled to a declaration that they, jointly with the respondents, are entitled to the beneficial ownership of the suit plot and that the registrar of titles will rectify the register to reflect this holding. MASIME AJA: In administration of the estate of the deceased pursuant to a grant of letters of administration issued by the High Court is a trustee and stands in a fiduciary relationship to all those who are beneficially interested in the estate. His duties as such trustee continue until he distributes the estate when his undertakings to the court are discharged. In the circumstances it cannot be urged, as learned counsel for the respondent had tried to do, that time runs out against the beneficiaries commencing with the death of the deceased. See section 20(1)(b) of the Limitation of Actions Act, Chapter 22, Laws of Kenya. on the facts of this case, I respectively hold that the cause of action arose for the appellants against the respondents when in 1979 HW as administrator of the estate of the deceased committed a breach of his trustee position by secretly conveying the trust property to himself and to the second respondent to the exclusion of the appellants who were also beneficially interested. There was no acquiescence by the appellants in that breach and no laches can be alleged as they took steps to lodge a caveat against the title as soon as they learnt of the breach. In the result I concur that the judgement of the learnt judge ought to be set aside and instead judgement be entered for the appellants against the respondents with orders as proposed by Apaloo JA, and an order that the costs of the suit both in the High Court and in this court be awarded to the appellants against the respondents for two counsel. ***

16.5 EXPENSE ON PRESERVATION OF GIFTS

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Pending distribution, it often happens that expenses are incurred in preserving a gift or device or legacy. In such event the expense is borne by the beneficiaries of such gifts or the general estate of the testator. Case number 384 states that common law position.

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In Re Rooke: Jeans v Gatehouse (1933) 1 Ch 970 (Maugham J) (The costs of the preservation and upkeep of property specifically devised and bequeathed between the date of the testator’s death and the date of the executor’s assent are payable by the specific devisees and legatees) CASE NO. 304

The executors of the will incurred expenses in maintaining a freehold property which was specifically devised. An originating summons was brought by an executor, at a time when the executors had not yet assented to a specific devise and bequest, asking for the court’s direction as to whether the expenses and outgoings incurred in the upkeep and preservation of a dwelling-house and the contents pending the assent to the specific devise and bequest ought to be borne by the specific devisee and legatee or by the testatrix’s general estate.

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MAUGHAM J: ... In In re Pearce (1909) 1 Ch 819 at page 821 ... Eve J said : ‘Now it seems to be settled law that when an executor gives his assent to a specific legacy the assent relates back to the death of the testator, and the specific legatee is entitled to the profits accrued due from the time of the testator’s death. That being so, it seems to me to be right and fair that the specific legatee should be charged with the costs of the upkeep, care, and preservation of the specific legacy from the time of the death until the executor’s assent, and shall make a declaration to that effect, and direct an inquiry incurred in and for such upkeep, care and preservation.’... ... In my opinion, it is difficult to explain on what principle the profits in such a case ought to be paid to the legatee, if he is not also to be made liable for the preservation and upkeep of the legacy. For these reasons I hold that, as from the date of the testatrix’s death to the date of the assent, the costs of preservation and upkeep fall upon the legatee.

CHAPTER 17 REMEDIES

OF

BENEFICIARIES

AND

CREDITORS

17.1 INTRODUCTION Often personal representatives discharge their duties in a manner which is unsatisfactory to the creditors and beneficiaries. For example, they may misapply the assets and generally administer the estate in a manner which is in breach of the trust bestowed upon them by the law. The law has provided a variety of remedies to creditors and beneficiaries with respect to misconduct by personal representatives. Case number 305 demonstrates that a person who purchases property which makes up an estate of a deceased person from a person who has no legal authority to sell such property, acquires no interest in such property and has no remedies as against the estate, especially if he acquires the same while well aware that the seller had no legal title to it. In Re Estate of Kariuki [2002] 2 KLR 172 (Khamoni J)

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(A purchaser of the free property of a deceased person acquires no interest in the asset unless he buys it from the administrators, and he has no protection of the law unless he is a purchaser for value without notice) CASE NO. 305

The applicant was a purchaser of an asset forming part of the estate of a deceased person. It was sold to him by a person other than the deceased proprietor or the administrator of his estate. The seller in fact had no beneficial interest in the estate. The application sought rectification of the certificate of confirmation of grant so as to facilitate the transfer of the asset to the name of the purchaser. The court held that the applicant was not a purchaser for value without notice since he knew the person who sold the asset to him had no title, in law or in equity, and therefore the asset could not be transferred to him.

KHAMONI J: As a certificate of confirmation of grant, also referred to as certificate of confirmation, confers upon a beneficiary under it a beneficial interest in the estate of the deceased person, where such a beneficiary subsequently dies before the executor or administrator of the estate for which the certificate was issued transfers the resultant legal interest or title to the aforesaid beneficiary, it is not proper and lawful to

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proceed under rectification of that certificate of confirmation to replace the deceased beneficiary with a person other than a confirmed executor or administrator of the estate of the deceased beneficiary. The proper procedure would be for the person aspiring to replace the deceased beneficiary to start the ball rolling in separate proceedings being a petition for the grant of letters of administration in the estate of the deceased beneficiary. He will start in those proceedings either as a petitioner as well as a beneficiary or as a purely beneficiary. After confirmation of that grant, it is the administrator of the estate of the deceased beneficiary (the second deceased) to apply for rectification of the certificate of confirmation of grant in the estate of the deceased person (the first deceased) so that the administrator of the estate of the deceased beneficiary replaces the deceased beneficiary (the second deceased). It is after such rectification that the administrator of the estate of the deceased person (the first deceased) will as trustee, properly and lawfully transfer the resultant legal interest to the administrator of the estate of the deceased beneficiary (the second deceased) to enable the latter administrator, also as trustee, transfer the same legal interest to the entitled beneficiary in the estate of the deceased beneficiary (the second deceased). It is after such rectification that the administrator of the estate of the deceased person (the first deceased) will as trustee, properly and lawfully transfer the resultant legal interest to the administrator of the estate of the deceased beneficiary (the second deceased) to enable the latter administrator, also as trustee, transfer the same legal interest to the entitled beneficiary in the estate of the deceased beneficiary (the second deceased).

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Not only has the beneficiary the right to have the trust administered by the trustee, but he also has an interest in the specific trust property and assets themselves and he may be able to follow them into the hands of a person not entitled to them. He, as the cestui que trust has a right in personam against the trustee or those who take from the trustee with notice of the trust. Three maxims of equity are relevant in this matter are that equity looks to the intent rather than the form; that equity imputes an intent to fulfil an obligation and., thirdly, that equity looks on that as done which ought to be done. In the certificate of confirmation of grant in the estate of Ndung’u Kariuki, deceased, not only was there a clear intent for the administrator to transfer the legal interest in parcel of land Loc.5/Ngurweini/763 to Emily Mugure Ndungu but also an imputed intent for the administrator to fulfil that obligation to transfer. As that has not been done, equity looks on that as done which ought to be done. It follows that Esther Wanjiku Ndungu, as the administrator of the estate of Ndungu Kariuki, deceased, and therefore as a trustee under the certificate of confirmation of grant issued on 9 February 1996, her prime duty is to carry out the terms of the trust and preserve safely the trust property. She must use the utmost diligence in discharging the trust duties and as regards the exercise of her discretion, she must act honestly, and use as much diligence as a prudent woman of business would exercise in dealing with her own affairs otherwise, she may be liable for breach of trust and will have to make good personally the loss thereby incurred by the trust estate.

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It is in those circumstances that the applicant, Chege Ngugi, wants to take trust property from the trustee, Esther Wanjiru Ndungu. Does the applicant qualify to do so? Is he a purchaser for value without notice? The parcel of land in question is registered under the Registered Land Act and section 119(1) of that Act is relevant and this is what it says in an attempt to help persons like the applicant Chege Ngugi: ‘If a sole proprietor or a proprietor in common dies, his personal representative, on application to the Registrar in the prescribed form and on production to him of the grant, shall be entitled to be registered by transmission as proprietor in the place of the deceased with the addition after his name of words ‘as executor of the will of ... deceased’ or ‘as administrator of the estate of ... deceased,’ as the case may be.’

Subsection (2) adds: ‘Upon production of a grant, the Registrar may, without requiring the personal representative to be registered, register by transmission – (a) any transfer by the personal representative.’

The term ‘grant’ is explained in subsection (3) to mean the grant of probate of the will, the grant of letters of administration of the estate or the grant of summary administration of the estate in favour of or issued by the Public Trustee, as the case may be, of the deceased proprietor. Section 112(1) says that subject to any restriction on his power of disposing of the land ... contained in his appointment, the personal representative or the person beneficially entitled on the death of the deceased proprietor as the case may be, shall hold the land ... subject to any liabilities, rights or interests which are unregistered but are nevertheless enforceable and subject to which are registered and subject to which the deceased proprietor held the same, ‘but for the purpose of any dealing he shall be deemed to have been registered as proprietor thereof with all the rights conferred by this Act on a proprietor who has acquired land, a lease or a charge, as the case may be, for valuable consideration.’

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That subsection strengthens the position of the trustee and section 126(3) makes him stronger by stating: ‘Where the proprietor of land, a lease or a the trust, charge is a trustee, he shall hold the same subject to any unregistered liabilities, rights or interests to which it is subject by virtue of the instrument creating the trust, but for the purpose of any registered dealings he shall be deemed to be the absolute proprietor thereof, and no person dealing with the land, a lease or a charge so registered shall be deemed to have notice of the trust, nor any breach of the trust create any right to indemnify under this Act.’

In the application before me the applicant did not buy the parcel of land in question from the deceased Ndungu Kariuki. He did not buy it from Esther Wanjiku Ndungu. He did not buy it from Emily Mugure Ndungu. He bought it from Ngugi Ndungu who was neither the registered proprietor nor beneficially entitled. The seller was not even a trustee. All along the purchaser Chege Ngugi knew that position. Knowing or deemed to know the seller had neither title nor interest to pass to the purchaser, the purchaser went to those he knew could have the title and were having equitable or beneficial interest to assist him. They were Esther Wanjiku Ndungu and Emily Mugure Ndungu. They refused to assist him. That is why he took them to court.

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As between him and Esther Wanjiku Ndungu or Emily Mugure Ndungu, the applicant was not a purchaser for value because there was no privity of contract between him and any of those ladies. Further, the applicant cannot be said to have had no notice of the interest of Emily Mugure Ndungu in that parcel of land at the time he was buying the land. The provisions of the Registered Land Act, I have referred to above do not therefore protect the applicant. They are the only provisions in the Registered Land Act, the only Act that governs the applicant’s claim. ***

17.2 REMEDIES THROUGH ADMINISTRATION PROCEEDINGS The probate and succession proceedings are not suitable for addressing concerns raised by creditors, and in some respects, by beneficiaries. They are also often inappropriate where the personal representative desires to get directions from the court on certain aspects of the administration process.The most appropriate procedure in the circumstances is through administration proceedings, taking the form of suits commenced under the Civil Procedure Act and Rules; either by way of originating summons or plaint. Cases numbers 306, 307 and 308 are illustrations of administration proceedings brought under the Civil Procedure Rules, especially Order XXXVI, rule 1. Official Receiver v Sukhdev [1970] EA 243 (Madan J) (An originating summons under order XXXVI rule 1 of the Civil Procedure Rules is not the proper procedure for seeking decisions on disputed questions of fact)

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CASE NO. 306

Orders were sought against an executor of a will, that he transfer land to a beneficiary, that he administer the estate and that he render accounts to the court. The originating summons was premised on order XXXVI, rule 1 of the Civil Procedure Rules. The application was refused. The court held that the originating summons is not the procedure by which decisions on disputed questions of fact ought to be obtained.

MADAN J: The provisions of Order 36, rule 1 to the extent they are enacted seem closely to follow the wording of English Order 55, rule 3. I turn to English authorities for guidance. In Re Carlyon (1887), 56 LJ Ch 291, North J, held the court has jurisdiction to determine upon an originating summons under Order 55, rule 3 such questions only as the court could have determined in an administration action before the Order came into existence.The same learned judge held in Re William Davies (1888), 38 ChD 210, that there is no jurisdiction upon an originating summons to decide a question arising between legal beneficial devisees under a will.

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In Re Royle (1890), 43 ChD 18, the executor took out an originating summons under Order 55, rule 3 against the other executor and the testator’s widow asking inter alia, whether a sum of £171 which the testator had handed to his widow shortly before his death, and which stood in her name at a bank, belonged to the her or the estate. The widow objected to the jurisdiction as to the £171, but Kekewich J overruled the objection, and made an order declaring the sum to be part of the testator’s estate. On appeal, held that there was no jurisdiction on originating summons to decide adversely to the widow that the sum belonged to the testator’s estate, this not being a matter which could be decided in an administration suit. Cotton LJ said, at page 21: ‘Kekewich J dealt with this originating summons as giving him jurisdiction to decide adversely to the widow that was not entitled to this sum of money, but that it belonged to her husband’s estate. The summons gave him jurisdiction to decide certain points relating to the administration of the estate, questions arising between legatees and the executor. This is not a question between the executor and a legatee as such, but a question between the executor and a person who holds money which he alleges belongs to the estate of the testator, and which she alleges to be her own. In an administration suit the regular course would have been, after directing accounts of the personal estate, to add a special inquiry whether this sum of money had been given to the widow.’

Cotton LJ went on to say if the widow did not submit to the jurisdiction to have the question tried under the inquiry there would be no jurisdiction to decide adversely against her in the administration action that she was not entitled to the money. The other two members of the Court of Appeal concurred. Bowen LJ said the case was one which could not be decided on originating summons adversely and without consent, that it did not come under Order 55, and added there was no jurisdiction in the present case.

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Fry LJ said in page 22, Order 55 was not intended to give jurisdiction except as to matters which could be decided in an administration action and added: ‘I entirely agree with the view taken by North J in Davies (supra).’ In Nutter v Holland (1894), 3 ChD 408, Lopes LJ said at page 410, he agreed with what Lindley LJ said in Re Powers (1885), 30 ChD 291, that is, a summons is not the proper way of trying a disputed debt where the dispute turns on questions of fact. In Re Powers., which was a case dealt with under Order 55, rule 10, Cotton LJ also said it is true that it is not the right course to take out as an administration summons to obtain payment of a disputed debt, where the dispute turns on matters of fact. In Dowse and others v Gorton and others (1891) AC 190, Lord MacNaghten said, at page 202: ‘and, indeed, I apprehend it would not be competent for an applicant on an originating summons to ask for or obtain otherwise than by consent an order founded on breach of trust or inquiries pointing to wilful default.’

In Re Ellis, 59 LT 924, an originating summons was takeout by two beneficiaries under a settlement asking that notwithstanding a release which had been executed to the trustees, they the trustees might be ordered to render an account of the trust funds: thus in effect claiming to have the release set aside.The respondents objected to having the case heard on affidavit evidence. Kay J said he was clearly of the opinion that this was not a case which should be heard on an originating summons. in Re

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Sutcliffe, (1942) 1 Ch 453, Bennett J adopted a similar opinion, at page 455, that an originating summons is not the procedure by which decisions on disputed questions of fact ought to be obtained. In Underhill’s Law of Trusts and Trustees (11 ed), it was stated at pages 537 and 538, ‘it is generally inadvisable to employ an originating summons for hostile proceedings against a trustee, and this procedure is, of course, quite unsuitable where the facts are in dispute as the evidence is by way of affidavit.’ Earlier at page 534, the author in attempting to give effect of Order 55, rule 3(a) as construed by the court states an originating summons may be taken out for relief but excluding hostile claims against the trustees for wilful default of any other breach of trust where the facts are in dispute.

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As an example, one of the disputes referred to in the respondent’s affidavit seems to fall clearly within the words of the judgement of Cotton LJ in Re Royle (supra), which Mr Gautama said he accepts, i.e., the respondent’s contention that he and his brother Ranbir have made loans to the estate, which is not a question between the respondent as trustee of the estate and Tarachand the legatee as such, but a question between the estate and the respondent personally who alleges the money lent to him is repayable to him by the estate, and the estate in turn is to be reimburse by Tarachand. How could such question of disputed facts be satisfactorily decided on affidavit evidence alone! As another example, is the applicant entitled to call for a transfer of the 100 acres without fulfilling the obligations under which the same was left to Tarachand! A question of law may be decided on the originating summons in Re Powers (supra), but it would be both inadvisable and unsatisfactory, the court may find itself presented with an incomplete picture, to do so when the question is mixed up with several other questions the answer or answers to which can only be reached after determining a mass of facts in dispute; it is precluded from doing so when there is no consent submitting to jurisdiction. This leads me to say the orders asked for are founded upon breach of trust or wilful default. The judgement of Lord MacNaghten (supra), which with respect, I do not wish to differ from, I think prohibits the applicant from succeeding. For the reasons I have stated the application is dismissed with costs.

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Esther Mbatha Ngumbi v Mbithi Muloli and others Nairobi Court of Appeal civil appeal number 207 of 1995 (Gicheru, Tunoi and Shah JJA) (Questions affecting rights or interests of persons claiming to be beneficiaries can be determined through a suit brought under order XXXVI of the Civil Procedure Rules)

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CASE NO. 307

An originating summons under order XXXVI, rule 1 of the Civil Procedure Rules was taken for the determination of the question whether a woman, who had been married to the deceased after she left the man she had married earlier, was entitled to a share in the estate of the deceased man. Oral evidence was taken and the court concluded that the woman had been properly divorced under customary law from the first husband, and that she had properly married the deceased under customary law and she and her children were therefore heirs to his estate.

GICHERU, TUNOI AND SHAH JJA: There never was any dispute that the appellant had first been legitimately married under the Kamba customary law to Peter Musyoki Mati whom she subsequently left and returned to her parents. According to her, she thereafter got married to the late Ngumbi Mutie. For her to have been legitimately married to the latter she had to have her first marriage to Peter Musyoki Mati dissolved. According to the Kamba customary law, this could only have been effected by the return of dowry to her first husband by her father and thereafter a goat mbui ya ulee (maleo) slaughtered and eaten to signify that the two were no longer husband and wife. On this, there was no quarrel. The dispute lay on whether or not these requirements were carried out. In this regard, whatever was the status of the record in connection therewith in the book referred to above, the best evidence, we think, was that of the appellant’s first husband, Peter Musyoki Mati, who in this respect said: ‘My first wife was called Esther Mbatha. She is no longer my wife. She ceased to be my wife in 1958. We had a domestic disagreement. I was refunded my dowry on 8 October, 1958. I was refunded by a certain man called Kotoe. I hear Kotoe is dead. I was refunded the dowry at the home of Esther’s father. There were elders on my side. My elders were my young brother called Antony Maingi Mati and Ndulu Musyoki alias Muli Musyoki. Kotoe had elders. One of them was Munguti Mwovi. I can’t tell who the other one was, Nyumbu had his elders but didn’t know who is who. There was Assistant Chief Philip Muema Nduu when dowry was refused to me. I was given 5 heads cattle, 10 cattle, 10 goats and Shs 503-50. The property came from Kotoe.’ ‘When I received my property my elders took the property home. They were Antony Maingi and Ndulu Musyoki: I went with them. I gave them a goat as my elders. It is called mbui ya maleo. The goat of maleo. It signified that Esther was no longer my wife. She became Kotoe’s wife. Esther’s father was paid dowry in 1958 for Esther. We had separated in 1957. I came to know Esther was married to Kotoe.’

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This evidence was corroborated by Peter Musyoki Mati’s elders, Ndulu Musyoki alias Muli Musyoki and Antony Maingi Mati, who represented him at the home of the appellant’s father, Nimbus Makuthi, when the dowry was returned. There is nothing in the record of the additional evidence taken by the Kangundo District Magistrate’s Court that indicate that the evidence of the appellant’s first husband, Peter Musyoki Mati, was not credible. Notwithstanding therefore the record of the event in the book referred to in the judgement, there was the evidence set out above of the person directly affected by the return of dowry in respect of his first marriage to the appellant against whom there was not even a suggestion that he had any reason to lie in that regard. This fact eluded the first appellate judge and where or not the relevant record in the book aforementioned was a fabrication as the learned judge held, there was inter alia the independent evidence of Peter Musyoki Mati who categorically said that his dowry in respect of his first marriage to the appellant was returned to him in 1958 and a mbui ya ulee (maleo) was slaughtered to signify the dissolution of his marriage to her as is set out above. The learned judge did not advert to this evidence. Had she done so, we think that despite the exclusion of the relevant record in the book referred to in this judgement, she could not have concluded that there was no evidence to show that the late Ngumbi Mutie paid dowry to the appellant’s father to be returned to her first husband, Peter Musyoki Mati, signifying her divorce from him under the Kamba customary law.The specifics of the dowry returned to the appellant’s first husband as contained in his evidence and in the evidence of the majority of the witnesses who testified at the taking of the additional evidence before the Kangundo District Magistrate’s Court leads to no other conclusion than that the dowry paid to the appellant’s father by the late Ngumbi Mutie was returned to her first husband in 1958 at the home of her father and that on such return a mbui ya ulee (maleo) was slaughtered sealing the end of the marriage to her first husband, Peter Musyoki Mati. Henceforth, the appellant became the wife of the late Ngumbi Mutie and under the Kamba customary law she has since remained so. On account of this, she and her children are beneficially entitled to a share in the estate of the late Ngumbi Mutie alias Kotoe and we so order.

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Rebecca Nyakeru Nyongo and others v Simon Kamau Gitau Mombasa Court of Appeal civil appeal number 245 of 1996 (Gicheru, Omolo JJA and Bosire AJA) (The estate of the deceased is entitled to accounts and a share in the profits of a business partnership in which the deceased was a member, but the law does not impose a time limitation within which the same should be done) CASE NO. 308

A partner in a business died, and his widows later obtained representation over his estate. The widows then brought an action under Order XXXVI, rule 4 of the Civil Procedure Rules seeking dissolution of the partnership, transfer of certain plots and taking and sharing of accounts.The High Court granted the orders. An appeal was brought seeking that a time limitation be fixed for the taking of accounts and the sharing of profits. It was held that there was no law which requires the court to impose such time limitation.

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GICHERU, OMOLO JJA AND BOSIRE AJA: In our view, there is no substance at all in ground one in which it is complained that the learned judge erred in law and in fact in resolving the matter in a summary manner given the nature and complexity of the issues. We understand that complaint to mean that the judge should have received viva voce evidence from the parties before resolving the dispute. As we can see from the record it was the respondent who was insisting that viva voce evidence ought to be received. Counsel for the appellants specifically asked the judge to determine the matter on the affidavits placed before him. The judge having done exactly what the appellant asked him to do, it lies ill in their mouth to complain against the procedure adopted by the judge. That ground must be rejected. The only ground of substance is really ground two.There, the appellants complain that the learned judge erred in law and in fact in finding and deciding that the appellants’ share of profits were to be limited to the period upto the 31 December 1991. In support of this complaint, the appellants rely on section 46 of the Partnership Act, chapter 29 of the Laws of Kenya. That section provides: ‘Where any member of a firm has died or otherwise ceased to be a partner, and the surviving or continuing partners carry on the business of the firm with its capital or assets without final settlement of accounts as between the firm and the outgoing partner or his estate, then, in the absence of any agreement to the contrary, the outgoing partner or his estate is entitled at the option of himself or his representative to such share of the profits made since the dissolution as the court may find to be attributable to the use of his share of the partnership assets, or to interest at the rate of eight percent per annum on the amount of his share of the partnership assets.’

There is a proviso to this section but it is not relevant to the circumstances of the appeal. The partnership was dissolved when the appellants’ deceased husband passed away on 9 July 1986. There was no agreement as to what was to happen to the partnership upon that event. The share of the deceased in the partnership assets remained in the

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partnership business and was obviously used to generate income for the business. But at some stage the accounts of the partnership had to be settled and the law does not provide that it is the responsibility of the surviving partner to ensure a quick settlement of the accounts. That would be placing too heavy a burden on the surviving partner because as it is often the case, the surviving partner may not even know whom to settle the accounts with where a legal representative of the deceased has not been appointed. In this case it took the appellants upto 1988 to obtain letters of administration to the estate of their deceased husband and during the period 1986 to 1988, even if the respondent had been anxious to settle the accounts, there was simply nothing which he could have done. Clearly the burden must have been on the estate of the deceased to ensure that accounts were settled. Having obtained the grant, it took the appellant upto 1993 to bring this summons to court. In the meantime, the respondent was running the business all by himself and in these circumstances; we think the learned judge was perfectly entitled to take the view that had the appellants acted with reasonable dispatch, the accounts would have been settled by 31 December 1991. Section 46 of the Partnership Act merely sets out how the profits are to be shared out after the dissolution of the partnership. It does not provide that the accounts must be settled at any particular date. In our view the section does not deprive the judge of his discretion to fix a particular date. We are satisfied that the learned judge was perfectly entitled to fix the date in the manner he did and the complaints raised in ground two, three, four and five must fail.That being our view of the matter, this appeal fails and we order that it be and is hereby dismissed. In the circumstances of this appeal, we make no order as to costs. ***

17.3 ACTION AGAINST PERSONAL REPRESENTATIVES Where personal representatives commit a breach of trust, the beneficiaries have a right to move to court to protect their interests.The most appropriate course of action is to ask for an account of the administration from the personal representatives.

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Cases numbers 309, 310 and 311 illustrate actions brought against personal representatives, especially by beneficiaries for maladministration or devastavit. In re Morgan: Pillgrem v Pillgrem (1881) 18 ChD 93 CASE NO. 309

(Jessel MR, James LJ and Lush LJ) (There is devastavit where an executor uses the estate to pay personal debts) The facts are set out in the excerpt of the judgment.

JESSEL MR:The executor was appointed by the will of the testator with directions which, in effect, made him a trustee of the business, and he was to carry it on and account for the profits to the cestui que trust. The will was proved in September, 1870, and the trustee did not sell the property, but continued to carry on business under the will. He did not act otherwise than as a trustee; he did everything rightly until he came to this: The lease of the premises in which the business was on was surrendered to him, and he took a new lease for a longer period of those premises, and also of two adjoining cottages, and continued to carry on business in them.

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The first question then is what is the effect of his having taken this lease? The renewed lease would not have been granted but for the surrender of the old lease. It is settled that a trustee cannot get a benefit to himself by dealing with the trust property. How, then, could this trustee get any benefit from the new lease? This being the position of the matter, he was a trustee of the new lease. In 1879 he borrowed in his own name, for his own use in carrying on the business, a sum of money from the appellant, and he deposited the lease with him. It is true that the appellant had no notice that Pillgrem was not the lawful owner of the property comprised of the lease. If he had enquired into the landlord’s title he would have got notice. He was therefore a purchaser without notice, who did not get the legal title; therefore, he must take the lease subject to prior equities, that is, to the trust on which it was held. He acquired nothing beyond that, except the right to the parchment. At a subsequent period, he issued execution against the chattels of his debtor, and among other chattels were these leasehold premises, and in order to enable the sheriff to seize, the lease was handed to him. I asked the counsel if the sheriff could seize trust property for the debt of the trustee, and it was admitted that he could not. The result was that the execution gave the creditor no better title than he had before; therefore he got no title to the lease under the execution, and therefore he has no legal title to the property, and as to his equitable interest he must be postponed to the cestui que trust. In re Somerset: Somerset v Earl Poulett (1894) 1 Ch 231 (Lindley, A L Smith and Davey LJJ) (The court has discretion to direct that a personal representative be indemnified, where a beneficiary or creditor has instigated, requested, or consented in writing to a breach of duty on the part of the personal representative, by impounding all or part of that beneficiary’s or creditor’s interest. The discretion is exercisable only if the beneficiary or creditor knew all the facts)

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CASE NO. 310

Trustees of a settlement committed an innocent breach of trust by investing trust money on a mortgage of insufficient value. The mortgagor paid money directly to the beneficiary but stopped after some time. The beneficiary then sued the trustees seeking to compel them to make good the amount of investment. The court found that the right of action against the trustees was time-barred after six years from the time when the investment was made. It was further found that the beneficiary was not liable to the personal representatives for instigating the investment for he did not appear to intend to be party to a breach of trust or to an investment on property without inquiry, since he had left the matter to the trustees to determine whether the investment was proper for the moneys to be advanced.

LINDLEY LJ: The breach of trust for which the trustees have been declared responsible is the investment of money on mortgage of property of insufficient value. There has been no fraud, nor any conversion of the trust property to the use of the trustees.They advanced the trust money on mortgage in August, 1878. That was the breach of trust.

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The mortgagor paid the interest on the money to the plaintiff as tenant for life until August, 1890; and the action against the trustees was commenced in February, 1892, i.e., more than six years after the investment, but considerably less than six years since the last payment of interest . The breach of trust is not now in controversy, and it is conceded that the defendants are liable for it to the infants who are entitled to the funds subject to the life interest of Mr Vere Somerset. The question is as to his right of relief. The fact that the interest was paid direct by the mortgagor to the plaintiff as tenant for life, and not by the trustees to him, is in my opinion immaterial. In point of law the payment amounts to a payment by the mortgagor to the trustees pursuant to his covenant, and to payment by them of the money so received to the plaintiff as tenant for life, pursuant to the trusts which the trustees had undertaken to perform. But then arises the question, What is the effect of such a payment with reference to the Statutes of Limitations? What does such payment admit? It is not an admission or acknowledgement of any breach of trust, nor of any liability on the part of the trustees that they owe, or are liable to make good, the principal sum to the plaintiff, or to any other of their cestui que trust; it is a mere acknowledgement that they have received from the mortgagor so much money in respect of his mortgage ... In applying the analogy of an action for money had and received to the use of the plaintiff we must not shut our eyes to the truth. We must not first of all treat the trustees as debtors of a sum which they do not admit they owe, and then treat the payment of interest as an acknowledgement that they owe that sum and are liable to make it good. We must look at the facts and see what it is that the payment of interest really does admit and acknowledge and unless the facts are such as to justify the inference that the trustees admitted their liability to make good the principal, the payment of the interest will not deprive them of the benefit of the statute. This is conclusively shown by Foster v Dawber (6 Ex 839), Davies v Edward (7 Ex 22), and Morgan v Rowlands (Law Rep 7 QB 493), where the principles applicable to the law on this subject are fully explained. In Morgan v Rowlands it was held that payment of interest pursuant to a judgement in an action brought to recover interest only did not prevent the Statute of Limitation from being a bar to another action brought within six years for the recovery of the principal debt itself. ... Did the trustees commit the breach of trust for which they have been made liable at the instigation or request or with the consent in writing of the appellant? The section is intended to protect trustees, and ought to be construed so as to carry out that intention. But the section ought not, in my opinion, to be construed as if the word ‘investment’ had been inserted instead of ‘breach of trust.’ An enactment to that effect would produce great injustice in many cases. In order to bring a case within this section the cestui que trust must instigate, or request, or consent in writing to some act or omission which is itself a breach of trust, and not to some act or omission which only becomes a breach of trust by reason of want of care on the part of the trustees,. If a cestui que trust instigates, requests, or consents in writing to an investment not in terms authorised by the power of investment, he clearly falls within the section; and in such a case his ignorance or forgetfulness of the terms of the power would not, I think, protect him – at all events, not unless he could give some good reason why it should, e.g., that it was caused by the trustee. But if all that a cestui que trust does is to investigate, request or consent in writing to an investment which is authorised by the terms of

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the power, the case is, I think, very different. He has a right to expect that the trustees will act with proper care in making the investment, and if they do not they cannot throw the consequences on him unless they can show that he instigated, requested or consented in writing to their non-performance of their duty in this respect. This is in my opinion, the true construction of this section. As regards the necessity for a writing, I agree with the decision of Mr Justice Kekewich in Griffith v Hughes ((1892) 3 Ch 105), that an instigation or request need not be in writing, and that the words ‘in writing’ apply only to the consent. I pass now to the facts. It is, in my opinion, perfectly clear that the appellant instigated, requested, and consented in writing to the investment by the trustees of the trust money on a mortgage of Lord Hill’s estate.This indeed was not disputed. But the evidence does not, that I can see, go further than this. He certainly never instigated, requested, or consented in writing to an investment on the property without inquiry; still less, if upon inquiry the rents payable in respect of the lands mortgaged were found to be less than the interest payable on the mortgage. A L SMITH LJ: Two points arise upon this appeal – the one whether the defendants, who in 1878 invested upon mortgage the trust funds of Mr Vere Somerset’s marriage settlement upon insufficient security in such circumstances as to constitute a breach of trust, are in an action brought against them for such breach by him and other beneficiaries some thirteen years afterwards, entitled as against Mr Vere Somerset to take advantage of sect 8 of the Trustee Act, 1888 (51 and 52 Vict c 59), and set up the Statute of Limitations. The other is, whether Mr Justice Kekewich was right in granting to the defendants the indemnity provided by sect 6, subsect 1, of that Act.

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It appears to me that this is an action brought to recover money, for it is an action brought to recover from the defendant trustees the money which has been lost to the trust funds in consequence of their breach of trust ... I now come to the second point, which is, whether the trustees committed the now unquestioned breach of trust at the instigation, or request, or with the consent in writing of the beneficiary, Mr Vere Somerset, so as to entitle them to apply for the indemnity provided by section 6, sub-section 1, of the Act of 1888. It is necessary in the first place to ascertain the true meaning of this section. Does it mean, that in order to entitle the trustees to the indemnity it must be proved that the beneficiary had instigated, requested, or consented in writing, knowing facts which rendered what he was instigating, requesting, or consenting in writing to, a breach of trust? Or, will it suffice if it be proved that the beneficiary merely instigated, requested, or consented in writing to the investment, not knowing that it was a breach of trust, but which, in fact, it turned out to be? The words of the section are, ‘Where a trustee shall have committed a breach of trust at the instigation or request or with consent in writing of a beneficiary.’ The words are not, where a trustee shall have made an investment at the instigation, or request, or with the consent in writing of a beneficiary which turns out to be a breach of trust. Ordinarily, a person can only instigate, request, or consent to what he knows.

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In my opinion, upon the true reading of this section, a trustee, in order to obtain benefit conferred thereby, must establish that the beneficiary knew the facts which rendered what he was instigating, requesting, or consenting to in writing a breach of trust. This issue is upon the trustee when he asks for relief under the section; and the question is, have the defendants in this case established it? It was proved that Mr Vere Somerset was anxious from the year 1876 that his trust funds, which amounted to about £35 000, should be shifted out of the securities they then were in, and invested upon Lord Hill’s Hawkestone estate. He was desirous that this should be done so as to have a better security for the trust funds. He knew that the acreage of this estate was 722 acres. He knew the farms, their names, and the locality in which they were situated. He consulted upon the matter his father-in-law, Colonel Hill, who was a trustee of the Hawkestone estate, and who according to the plaintiff ’s own evidence, undertook the negotiations with Lord Hill and Mr Haste (Lord Hill’s agent) as regards the proposed advances. Colonel Hill presumably was well acquainted with the farms. It was proved that Mr Vere Somerset pressed the defendant to make advances against the Hawkestone property, and signed a written consent in that behalf... It cannot, I think, be doubted that the security was wholly insufficient for an investment of trust funds amounting to £35 000. All Mr Vere Somerset was told was that Sir J W Ellis had reported that the estate was sufficient security for £30 000, and he was subsequently told that the trustees had arranged to advance a further £5 000, for which Mr Vere Somerset gave his written consent. In these circumstances, have the trustees established the issue which is upon them? My answer is, No.

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It is true that Mr Vere Somerset desired for his trust funds the security of the Hawkestone estate, which he knew consisted of 722 acres, and that he pressed for it; but it has not been proved that he knew that the total rental was only £1070, nor how Sir J W Ellis came to the conclusion that it was sufficient security for £35 000. This information, which the trustees had, they kept to themselves, and never communicated to Mr Vere Somerset. In my judgement, the true view of the evidence is that, although much desiring and pressing for the investment, Mr Vere Somerset left it to the trustees to determine if it were a proper one for the moneys proposed to be advanced, and was thinking that he was getting a good and secure investment for his trust moneys. So much for the knowledge and conduct of Mr Vere Somerset himself. Then a further point was made on behalf of the trustees, which was, that, as Messrs Wilde, Berger and Co knew all the facts, as they acted as solicitors for Mr Vere Somerset in the transaction, notice to them of Sir JW Ellis’s report was notice to Mr Vere Somerset of the facts therein contained, and subsequently their knowledge of these facts was his knowledge. The circumstances are these: Messrs Wilde, Berger and Company were solicitors of Lord Hill, the proposed mortgagor. Mr Jenkyns had been the solicitor of the trustees but in order to save expense Messrs Wilde, Berger and Co were permitted to act both for Lord Hill and the trustees. Before the 9 March, Mr Vere Somerset changed his solicitor, Mr Jenkyns, and appointed Messrs Wilde, Berger and Company to act for him. The retainer of Messrs Wilde, Berger and Company by Mr Vere Somerset was

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given to them, so that they might be able more readily to carry out what Mr Vere Somerset and his wife had to do to complete the transaction than if two solicitors were engaged. Messrs Wilde, Berger and Company were not engaged by Mr Vere Somerset to negotiate the transaction of the loan on his behalf, or to advise him as to whether it ought or ought not to be carried out, so that the notice given to them might be said to be notice given to the agent of Mr Vere Somerset in the transaction, and therefore notice to him. The information which Messrs Wilde, Berger and Company obtained about the rent and value of the estate was obtained by them solely on behalf of the trustees, and it may be in the interests of the borrower, Lord Hill, but certainly not on behalf or in the interest of Mr Vere Somerset, and thus the information so obtained was never communicated to him. In these circumstances, in my judgement, it would be wrong to hold that the knowledge Messrs Wilde, Berger and Co thus obtained was the knowledge of Mr Vere Somerset, so as to cause the court to find that, within the meaning of sect 6 of the Act of 1888, Mr Vere Somerset instigated, requested, or consented in writing to a breach of trust of which, as matter of fact, he was ignorant.

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For these reasons, in my judgement, this point fails as the defendants, as also a similar one which was taken - namely, that the knowledge of Lord Hill’s agent, Mr Haste, was the knowledge of Mr Vere Somerset. In my judgement, the trustees are not entitled to the relief, which Mr Justice Kekewich gave them, for they have failed to establish the issue, which was upon them; so that the learned judge’s judgement should be reversed, and the appeal allowed upon the second point. I agree that there should be no costs, as each party has in part succeeded. DAVEY LJ: The first question, therefore, which we have to decide, is whether Mr Vere Somerset’s action is barred. I do not propose to add very much to what has been said by the other members of the court. I do not think it makes any difference whether the trustees received the interest and paid it to Mr Somerset, or whether they allowed him to receive it direct from Lord Hill; but I am of opinion it was not interest on the sum sought to be recovered in this action, and it appears to me that it would be almost an outrage on common sense to treat the payment to Mr Somerset of the interest on the mortgage as acknowledgement by trustees of the existence of the debt sought to be recovered in this action. If it was evidence of anything, it was evidence of Mr Somerset’s acquiescence and acceptance of the mortgages as a proper investment. I am, therefore, of opinion that on this point the learned judge was right ... Undoubtedly, the investment was made at the instigation or request, or with the consent in writing, of Mr Vere Somerset. But I am of the opinion that it is not enough, and that in order to bring the case within the section the beneficiary must have requested the trustee to be part from and go outside the terms of his trust. It is not, of course, necessary that the beneficiary should know the investment to be in law a breach of trust; but he must, I think, know the facts which constitute the breach of trust. But, supposing I am wrong in this, and that it should be held to be sufficient, in order to bring the section into operation, that the beneficiary requested or consented to the investment in question, it appears to me that we arrive at the same result from a consideration of the latter words of the section, which does not impose on the court the duty in all events of impounding the interest of the beneficiary, but invests I the court with a discretionary power (to be exercised judicially) ‘if it shall think fit,’ to ‘make such order as the court shall deem just ‘ for the purpose.

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... but I have come to the conclusion that there is not sufficient evidence that Mr Vere Somerset knew of the insufficiency of the security, or that he ever desired, requested, or consented, or was privy to his trustees stepping outside the terms of their trust.Why should he? He was to gain nothing himself, and his object was to have the funds securely invested. Messrs Wilde’s letter of the 17 July 1878, to Mr Granville Somerset, seems to me accurately to express Mr Vere Somerset’s attitude of mind as gathered from the correspondence and evidence. The letter to Mr Vere Somerset himself of the 10 July 1878, was not calculated to inform him that a breach of trust was contemplated, or to excite his suspicion. It is true that this loan was afterwards increased to £35 000, and he was informed of this by their letter of the 20 July, and on this point I have felt great difficulty; but think he was entitled to assume from the tenure of their letter, that the trustees, in having so arranged had done so on sufficient advice and with sufficient care. We were pressed to treat Mr Berger’s knowledge as Mr Vere Somerset’s, on the ground that it is admitted in the answers to interrogatories that, to some extent, the firm acted as his solicitors. But I do not think that there are any sufficient grounds on which we can affect Mr Vere Somerset with Messrs Wilde’s knowledge, or, if he had no direct knowledge, hold, that he had constructive notice – even assuming that constructive notice would be sufficient to affect him with liability ...

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The result will be that Mr Vere Somerset will be entitled to receive the income of the funds realised from the security, but the trustees will retain for their own use the interest of the money paid by them to make good the deficiency of the mortgage.

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Panayotis Nicolaus Catravas v Khanubhai Mohamed Ali Harji Bhanji [1957] EA 234 (Lowe J) (A person who is sued in his representative capacity must be so described in the plaint, but when suing an executor it is not necessary to plead specifically that he has taken out probate or has intermeddled with the estate so long as it is pleaded that he was an executor)

CASE NO. 311

A party sued another and described her as ‘the executrix’ of the deceased, and it was further alleged that she had not applied for probate or administration of the estate. The alleged executrix pleaded in her defence that the plaint disclosed no cause of action against her as representing the estate of the deceased. It was held on appeal that where a person is sued in a representative capacity the plaint must specifically state so. It was further held that when suing an executor it is not necessary to plead specifically that he has taken out probate or has intermeddled with the estate provided that he is sued as executor. Whether an executor who has not taken out probate has intermeddled with the estate so as to become an executor de son tort is a matter of proof, which can only be established at the full hearing of the action.

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LOWE J: There is no doubt that the period of limitation continues to run after the death of a deceased and before probate has been taken out by his executor and as was stated in the case of Chuni Lal Bose v Osmond Beeby (3) (1903), 30 Cal 1044, with reference to another case: ‘The executor does not represent the deceased by virtue of the will until he has obtained probate.Who then represents the deceased who has left a will from his death until probate has been obtained? Surely someone must do so, or the law would not have provided that the statute of limitation should run between the death and the grant of probate, as it undoubtedly does.’

I do not need to make any further reference to that dictum or its implications, because the position is clarified in the definition ‘legal representative’ in section 2(11) of the Code of Civil Procedure, as follows: ‘Legal representative’ means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased ... ’

In Pitchey’s case (1) the judgement merely states that a creditor of a deceased debtor cannot sue a person named as executor in the will of the deceased unless he has either administered, that is, intermeddled with the estate, or proved the will. It says, in other words that no action can be taken against an executor who has not taken out probate or has not intermeddled with the estate but as soon as he does inter meddle in such a manner as to show an intention to administer he can be sued. In that case it was proved by evidence that the person alleged to have been the executor of the testator did not

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infact intermeddle or administer, and an action founded on a contrary basis was held to be ineffectual to bend the testator’s estate. There can be no dispute that the legal representative of a deceased person can be sued, and that action is commenced against any person in his representative character such representative character must be stated in the plaint. In the instant case, in paragraph 2 the respondent was stated to be the executrix of the deceased, and it was further stated that although she had not taken out probate she was entitled to do so. At that stage it would appear that the pleadings were insufficient, but at paragraph 8 the plaintiff went on to say: ‘The plaintiff ’s claim from the defendant as executrix of the estate of the deceased ... ’

That seems to me to be a specific averment that the claim is being made against the defendant in her representative character. It follows that the plaintiff has shown an intention to prove such fact. If of course he failed to do so, or if it were shown at the outset that the defendant was not the executrix of the estate, then the plaintiff could go no further. It will be seen that the plaintiff did not allege that the defendant was the ‘executrix according to the tenor of the will’ or that she was ‘the executrix named in the will’ of the deceased, but that she was the executrix of the estate of the deceased, her representative character being clearly stated.

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The defendant in her submission in paragraph 2 of the statement of defence alleged that the plaint disclosed no cause of action against her ‘as representing the estate’ of the deceased. The learned magistrate seems to have accepted that submission and to have applied his mind to paragraph2 and paragraph 3 of the plaint to the exclusion of paragraph 8, although he did mention that counsel for the plaintiff stated that the defendant was executrix of the estate. However, it does not seem to me that the defendant can aver that there is no cause of action against her as representing the estate, because that in fact is what the plaint itself specifically sets out. I had some doubt regarding the Patna case (2), because the principles there enunciated is to the effect that in order to ascertain whether or not there is in fact a cause of action it might be necessary first to hear the evidence of the plaintiff. However, that does not lay down a general principle; it clearly refers to special cases. Mr Dodd claims that this is just such a case. He says that the plaint states very clearly that the respondent represents the estate, that there is no doubt that she is sued in a representative character, and that his client has given her all the notice necessary to enable her to know the nature of the defence she must set up. In Williams on Executors (12 ed.),Volume II, 1239, the learned author says: ‘If the defendant intends to deny being executor or administrator, he must plead such denial specifically, otherwise he will admit his representative character. If this specific denial is traversed by the plaintiff, the burden of proof is on him to prove affirmatively that the defendant is executor or administrator. For the purpose of introducing formal or documentary evidence of the defendant being executor or administrator it is always prudent, and in some cases absolutely necessary, to give notice to the defendant to produce at the trial the probate of the will, or the letters of administration, but it is not always necessary, in order to let in secondary evidence, to prove that the probate or letters are in the defendant’s possession; for if he has been duly appointed executor or administrator, they must necessarily be presumed to be in his possession ... but it seems that if there are two executors and one proves the will in the name of both, even against the will of the other, the other cannot plead

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ne unques executor. Further proof that the defendant has intermeddled with the property, so as to make himself executor de son sort, is sufficient proof of his being executor.’

Surely it cannot be said that a plaintiff is entitled to bring evidence to prove that a defendant sued as executor, has intermeddled and so is an executor de son tort who has, therefore, been properly sued, whereas another executor who has also intermeddled must have such fact pleaded before a suit can be brought against her. That does not seem to me to be at all logical. It must be thought that the learned author overlooked Pitchey’s case (1) for throughout his work he has referred to it many times. In any event I cannot see any conflict between the principle laid down in that case and that enunciated by Williams. Furthermore, if learned counsel for the defence was correct with his submission, an executor who had in fact taken out probate could not be sued unless his creditor plaintiff specifically set out in the plaint the fact that the defendant was an executor who had taken out probate. I know of no law which requires that to be done. I think that position in the instant case is the same as that referred to by Williams where proof was permissible that the defendant had intermeddled with property so as to make himself executor de son tort, although, of course, in the instant case the executrix is not de son tort . The plaintiff to my mind has clearly stated in his plaint that the defendant was the executrix of the estate of the deceased and the defendant was then placed in a position where she could, if she so wished, deny that fact and so put the plaintiff on his proof. Although I am satisfied that a cause of action is disclosed in the plaint it might, of course, be shown, when proof is admitted that the averment that the defendant is the executrix of the estate is ill-founded, in which case the plaintiff ’s right of action on that plaint would then end. Even if that were not so, there is the fact that the defendant has merely submitted that she has not been sued in her representative character, whereas the plaint in fact shows that she has.

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... I think the pleadings are sufficiently precise, although the defendant named in the plaint should, in the Initial ruling, have been described as the executrix of the estate of the deceased. However, that is a matter which, in my view, is cured by para 8 taken with paragraph 2 and paragraph 3 of the plaint itself. I think the learned magistrate misdirected himself in law in that he did not consider the effect of paragraph 8, and accepted Pitchey’s case (1) as being an authority by which he was bound to reject the plaint even though the plaintiff has described the defendant as the executrix of the estate. It is not so. It is merely an authority that an executor cannot be sued until certain things have happened and it does not say that the executor cannot then be sued as such. I would think, with respect, that had the judgement in Pitchey’s case (1) been written in modern times it would probably have read something to the effect that ‘No creditor of a deceased’s estate can proceed with any suit brought by him against an executor who has not taken out probate or intermeddled with the estate.’

In other words, the authority seems to me to be intended to mean that no such executor could be ‘successfully sued’ in such circumstances. There seems to me to be no doubt that there is nothing in the law to prevent any person suing, that is commencing an action against, any executor. Whether the action would succeed in getting any further that that is another matter. ***

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17.4 DEFENCES

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PERSONAL REPRESENTATIVES

The law avails some defences to personal representatives where they are accused of devastavit and maladministration. The defences are statutory; and stated in the Law of Succession Act, the Trustee Act and the Trusts of Land Act. (a)

Defence where personal representatives have acted honestly, reasonably and in good faith

Section 92 of the Law of Succession Act provides as follows: ‘92(1) Any person making or permitting to be made any payment or disposition in good faith under a grant of representation shall be indemnified and protected on so doing, notwithstanding any defects or circumstances whatsoever affecting the validity of the grant. (2) Where a grant of representation is revoked or varied, payments and dispositions made in good faith to a personal representative under that grant before the revocation or variation thereof shall be a valid discharge to the person making them, and a personal representative who has acted under the revoked or varied grant may retain and reimburse himself in respect of any payment made charge to the person making them, and a personal representative who has acted under the revoked or varied grant may retain and reimburse himself in respect of any payment made by him which any other person to whom representation is afterwards granted might have properly made: Provided that a personal representative who so acted shall account for all payments, dispositions, retentions or reimbursements made by him to the person or persons to whom representation is afterwards granted.’

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Section 60 of the Trustee Act reads as follows: ‘60 If it appears to the court that a trustee, whether appointed by the court or otherwise, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought to be excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which he committed the breach, then the court may relieve him either wholly or partly from personal liability for it.’

Section 52 of the Trusts of Land Act carries a similar provision: ‘Trustees for sale of land, personal representatives and other persons who have in good faith, pursuant to a trust for sale of land of this Act, executed a conveyance, transfer, assent, assignment or other disposition of the land held upon trust for sale, or a deed of discharge of trustees, shall be absolutely discharged from all liability in respect of the equitable interests and powers taking effect under the instrument (if any) constituting the trust for sale, and shall be entitled to be kept indemnified at the cost of the trust estate from all liabilities affecting the land held upon trust for sale, but the person to whom the land held in trust is conveyed, transferred, assigned or otherwise disposed of (not being a purchaser taking free therefrom) shall hold the land upon the trusts (if any) affecting it.’

Case Number 312 is an illustration of the application of section 60 of the Trustee Act.

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In re Pauling’s Settlement Trusts:Younghusband and others v Coutts and Company [1963] 3 All ER (Willmer LJ, Upjohn LJ and Harman LJ) (A personal representative is personally liable for a devastavit, and must replace the loss caused to the estate, unless he can avail himself of a defence, such as that under section 60 of the Trustee Act, where he has acted honestly, reasonably and in good faith)

CASE NO. 312

A bank holding trust funds lost a sum of £2600 in a transaction in which it was advised by its solicitor, although the bank did not act as per the solicitor’s advice. The transaction was carried out without the knowledge or consent of the beneficiaries, but the bank acted honestly and in good faith. The court found that section 60 of the English Trustee Act, the equivalent of section 62 of the Kenya Trustee Act, did not afford a defence to the bank.

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WILLMER, UPJOHN

AND

HARMAN LJJ:

The bank also relies for relief from the consequences of any breach of trust upon section 61 of the Trustee Act, 1925. At this stage all we propose to say is that it would be a misconstruction of this section to say that it does not apply to professional trustees, but, as was pointed out, in the Judicial Committee of the Privy Council in National Trustees Company of Australasia Ltd v General Finance Company of Australasia Ltd (1905) AC 373; 21 TLR 522 PC), ... ‘without saying that the remedial provisions of the section should never be applied to a trustee in the position of the appellants, their Lordships think it is a circumstance to be taken into account ... ’ Where a banker undertakes to act as a paid trustee of a settlement created by a customer, and so deliberately places itself in a position where us duty as trustee conflicts with its interest as a banker, we think that the court should be very slow to relive such a trustee under the provisions of the section ... Charles Russell and Co ... failed in their duty to the bank to see that the transaction was carried out in accordance with the advice they had given. As carried out, the transaction plainly could not be justified as an exercise of the power under clause 11, and, of course, the bank cannot hide behind the negligence of their own advisers from whose neglect they must, as between them and their beneficiaries, assume full responsibility.The payment being, therefore, a plain breach of trust; this on the evidence they cannot do.The members of the court differ, however, upon the question whether the bank should be relived under section 61 of the Trustee Act, 1925, and if so to what extent. On this point alone, therefore, separate judgements will be delivered. ... As to acquiescence, we think that this must be looked at rather broadly. we were, of course, pressed with the leading case of Allcard v Skinner ((1887) 36 ChD 145), but in that case the plaintiff had had her rights fully explained to her by a brother, who was a barrister, and by her solicitor, and yet she took no steps until five or six years later.

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Even that gave rise to a difference of opinion in a very strong Court of Appeal. In this case, it would be wrong, we feel, to place any disability upon the beneficiaries because it so happened that George was a member of the bar, and had been in well-known chambers. He had not been in Chancery chambers where it may be said that these things are better understood; but the real truth of the matter is that a party cannot be held to have acquiesced unless he knew, or ought to have known, what his rights were. On the facts of this case, we cannot criticise any of the plaintiffs for failing to appreciate their rights until another junior counsel, whom they consulted on a farfetched and futile scheme of George’s for avoiding estate duty on his mother’s death, advised that the advances might be improper. That was in 1954, and thereupon the family, headed, of course, by George, took immediate steps to explore this matter.This is most complicated action, and many matters had to be explored before an action for breach of trust could properly be mounted. The writ was issued in 1958, and we do not think it right to hold that the plaintiffs were debarred by acquiescence from bringing an action which otherwise, to the extent we have indicated, is justified.

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WILLMER LJ: I have the misfortune to differ from my brethren as to the degree of relief which ought to be accorded to the bank under section 61 of the Trustee Act, 1925, in respect of their breach of trust regarding what has been described as the Hodson loan transaction. All of us are agreed that in the very special circumstances of this case the bank should be accorded some relief notwithstanding the fact that they were professional trustees paid for their services. But whereas my brethren think that the bank should be believed only in part, I take the view that if relief is to be accorded at all, it should be accorded in full. I can see no logical reason for stopping short of relief in full. The special circumstance which, in the view of all of us, entitles the bank to relief is the fact that the solicitor specially appointed by the bank to give separate advice to, and protect the interests of Francis and George, failed to ensure that the transaction was carried out in the way which had been advised by Charles Russell and Co and agreed to by the boys themselves. The bank, though clearly in breach of trust, were quite innocent in the matter. They were not the cause of any part of the loss which resulted. Accordingly, if, as I think, they are entitled to relief under section 61, they should, in my view, be relieved in full. I venture to criticise the order proposed by my brethren in relation to this transaction on the ground that, although purporting to grant relief under section 61, it does not in fact result in any relief at all. For even without section 61, I do not see how the bank could have been made liable for more than the amount of the loss actually sustained through the transaction being carried out as it was. Francis and George in fact received the life policies, the surrender value of which was said to be £650 in 1948. They retained the policies until 1953, by which time they had no doubt increased considerably in value since the payment of premiums was in fact maintained by the mother. The boys then quite voluntarily gave the policies back to their mother, apparently for the purpose of enabling the commander to raise more money by charging them again. In so far as the boys gave away a tangible asset of value, their loss was due to their own voluntary act, and not to the bank’s original breach of trust. Quite apart from section 61, therefore, I should have thought that in any case the bank could not have been made liable for the whole £2 600, but that credit ought to be given for the surrender value of the policies in 1953.

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On the same principle, it has been rightly conceded on behalf of Ann that, in so far as she has herself retained the moneys advanced to her; she cannot claim to recover them again. If, therefore as we all agree, relief under section 61 should be accorded, in my view, result in giving the bank some relief beyond that to which they would in any event have been entitled. For my part, I would relieve the bank entirely in respect of this £2 600. UPJOHN LJ: Willmer LJ has expressed the view that, apart altogether from any relief under section 61 of the Trustee Act, 1925, the bank could not be made liable for more than the amount of the loss actually sustained through the transaction being carried out as it was; and as Francis and George received the life policies, he has held that they must give credit for at least the surrender value of the policies at the date of the transaction. I regret that I am unable to share this view.

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The transaction carried out was a complete breach of trust, and entirely unauthorised by clause 11. Therefore the bank must replace to the trust funds the £2 600 misapplied. Test it in this way. Suppose that Francis and George had still the policies, could the bank, on being ordered to replace £2 600 to the trust claim that they were only bound to do so on having replaced to them the policies. Or at any rate at least upon receiving credit for the 1948 surrender value of the policies? It is, in my judgement, not the law that the plaintiff, rightly suing for the breach of trust, must account for the very benefit he may have incidentally received. What right have the bank to claim some set-off from the plain consequences of their breach of trust? I can see no possible equity which entitles the bank to do so. In fairness to the bank, let it be said that their counsel never argued that they had any right (apart from section 61) to claim any such credit. On the other hand, of course, as the judgement of the court has pointed out, it cannot be doubted that a beneficiary who has consented to a transaction in breach of trust must be prepared to accept the consequences and give credit for the money or property that he has received. That principle, in my judgement, cannot be applied to the case of the Hodson trust for the very simple reason that, as the judgement of the court has declared, Francis and George never consented to the transaction as it was in fact carried out, and indeed they were wholly ignorant of it. Therefore, the principle that they must accept the consequences of a breach of trust. *** (b)

The common law defence where beneficiaries have acquiesced to devastavit.

Case number 313 illustrates the application of the defence.

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Holder v Holder and others [1968] 1 All ER 665 (Harman, Danckwerts and Sachs LJJ) (There is no fixed rule that the beneficiary who acquiesces in devastavit should have knowledge of the legal consequences of the facts, and whether it is fair for the court to apply the defence of acquiescence depends on the facts of each case)

CASE NO. 313

A testator left a will appointing the defendants his executors and creating a trust for sale with an equal division of the proceeds among his ten children.At some stage an executor who desired to purchase some of the properties in the estate renounced probate and recited that he had not intermeddled and thereafter bought two farms. The plaintiff brought an action objecting to the sales to the executor who had renounced probate. The court held that the renunciation was ineffective and the executor remained in office, and since his interference with the administration of the estate was minimal there was nothing to prevent him from purchasing the properties, as the information he got on the properties came into his possession as tenant rather than as an executor.

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HARMAN LJ: I have found this question a difficult one. The plaintiff knew all the relevant facts but he did not realise nor was he advised till 1963 that the legal result might be that he could object to his brother’s purchase because he continued to be a personal representative. There is no doubt strong authority for the proposition that a man is not bound by acquiescence until he knows his legal rights. In Cockerell v Cholmeley ((1830) 1 Rus and Myl 418), Sir John Leach said: ‘it has been argued, that the defendant, being aware of the facts of the case in the lifetime of Sir Henry Englefield, has, by his silence, and by being a party to the application to Parliament, confirmed the title to the plaintiffs. In equity it is considered, as good sense requires it should be, that no man can be held by any act of his to confirm a title, unless he was fully aware at the time, not only of the fact upon which the defect of the title depends, but of the consequence in point of law: and here there is no proof that the defendant, at the time of the acts referred to, was on the subject ... ’

There, however, the judge was asked to set aside a legal right. In Willmott v Barber ((1880) 15 ChD 96) Fry J said: ‘A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant’s land) on the faith of his mistaken belief.Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right, which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with knowledge of your legal rights.’

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On the other hand, in Stafford v Stafford ((1857) 1 De G and J 193) we find Knight Bruce LJ saying: ‘Generally, when the facts are known from which a right arises, the right is presumed to be known: ...’ Like the judge, I should desire to follow the conclusion of Wilberforce J who reviewed the authorities in In re Pauling’s Settlement Trusts ((1962) 1 WLR 86) and this passage was mentioned without dissent in the same case in the Court of Appeal ((1964) Ch 303): ‘The result (says the judge) of these authorities appears to me to be that the court has to consider all the circumstances in which the concurrence of the cestui que trust was given with a view to seeing whether it is fair and equitable that, having given his concurrence, he should afterwards turn round and sue the trustees: that, subject to this, it is not necessary that he should know that what he is concurring in is a breach of trust, provided that he fully understands what he is concurring in, and that it is not necessary that he should himself have directly benefitted by the breach of trust.’

There is therefore no hard and fast rule that ignorance of a legal right is a bar, but the whole of the circumstances must be looked at to see whether it is just that the complaining beneficiary should succeed against the trustee. On the whole I am of the opinion that in the circumstances of this case it would not be right to allow the plaintiff to assert his right (assuming he has one) because with full knowledge of the facts he affirmed the sale. He has had £2 000 as a result. He has caused the third defendant to embark on liabilities which he cannot recoup.There can in fact be no restitutio in integrum, which is a necessary element in rescission.

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The plaintiff is asserting an equitable and not a legal remedy. He has by his conduct disentitled himself to it. it is extremely doubtful whether the order if worked out would benefit anyone. I think we should not assent to it, on general equitable principles. DANCKWERTS LJ: ... But the plaintiff ’s right of action may be barred by acquiescence or confirmation. The cases on this subject are rather confusing in regard to the knowledge that beneficiary must have in order to prevent his knowledge barring him in a subsequent attempt to set the transaction aside, and how far the beneficiary must know the legal result of the facts of which he was aware. The matter of the purchase of the farms was discussed fully and at length at the family meetings and I find it impossible to believe that Frank did not know the facts. No one seems to have objected to Victor buying on the ground that he was an executor. Frank treated him as not being an executor when he brought his action against the proving executors alone. He accepted the benefits of the sale when he received £2 000. None of the four solicitors involved in the discussions which took place questioned Victor’s right to purchase. Frank had his own solicitor at his elbow, and that solicitor should have advised him on the legal position. Instead he apparently said nothing, stood by with Frank, and allowed the sale to be completed by conveyance of the farms to Victor by the proving executors and the payment of the purchase price by Victor, who has altered his position by mortgaging the farms and carrying on the farming business on the farms. As to the cases, Cockerell v Cholmeley and Stafford v Stafford show different views on the point whether appreciation of the situation in law is necessary.

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My decision in In re Howlett [1949] 2 All ER 490 did not really deal with the matter. Like Harman LJ, I prefer the view expressed by Wilberforce J in In re Pauling’s Settlement Trusts that all the circumstances must be considered and there is no hard and fast rule. In my opinion Frank has acted in such a way in the present case in regard to Victor’s purchase of the farms that he must be taken to have acquiesced in or to have confirmed the sale and cannot now claim to have the sale set aside. There is authority for the general rule that, in the absence of fraud, a transaction which has been completed will not be set aside : Seddon v The North Eastern Salt Co Ltd ((1905) 1 Ch 326), and other cases. But there are dicta of McCardie J in Armstrong v Jackson ((1917) 2 KB 822) (where a broker who sold his own shares to his principal) that the rule does not apply where there is a fiduciary position. but in that case there seems to have been fraud. Whether that be the case or not, on general equitable grounds I am of opinion that in the present case the transaction should not be set aside. The transaction is not void. It is one which is voidable and is liable to be set aside if a proper case is made out for that relief.

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As has been pointed out by Harman LJ, the plaintiff is claiming equitable relief against Victor, who is the legal owner of the farms and is in occupation of them. He has paid what was a good price at the time of the sale. Much hardship would be caused to Victor if the transaction was set aside now. He purchased the farms in good faith, believing that there was no bar to that course. The plaintiff stood by and benefitted along with the other beneficiaries by the sale. He had legal advice to hand and made no attempt to stop the completion of the sale. Now, after completion, he is attacking the sale for purely selfish reasons. He cares nothing for effect that setting aside will have upon the estate of the testator and the other beneficiaries under the will. the costs of the sale (some £875) will all be thrown away. The order made by the judge will cause some unfairness to Victor and is so complicated that it will be difficult and expensive to work out. In fact, it is not really possible in the circumstances to carry out restitution, which is condition of the equitable relief which the plaintiff seeks. The plaintiff ’s position would have been expressed in former times by the words ‘he has no equity.’ For all these reasons, in my opinion the court should not grant the equitable relief of setting aside or rescission in the present case. SACHS LJ: Next I turn to two further issues: the first is whether the plaintiff acquiesced in Victor’s purchase of the property: the second is whether even if there was no acquiescence he ought to be given that equitable relief which was granted by the trial judge.These two issues have naturally to be considered separately, though many of the factors relevant to the second are also relevant to the first. The plea of acquiescence in this particular case seems to me to have a close resemblance to one of estoppels: and it is to be noted that in Halsbury’s Laws of England, (3 ed) (1956),Volume 14, it is stated on p 638, in para 1178: ‘acquiescence operates by way of estoppels. It is quiescence in such circumstances that assent may reasonably be inferred, and is an instance of estoppels by words or conduct.’

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Whilst recognising that these two pleas are not necessarily coterminous it yet seems to me that in the present case if the facts are sufficient to create an estoppels then a fortiori, a plea of acquiescence must succeed. In relation to this plea the first question to be considered is what facts were known to the plaintiff (and for that matter to his solicitor) before the auction took place and before the sale to Victor was completed. First, the plaintiff knew that Victor was an executor under the will; secondly, turning to the allegation in paragraph 4(c) of the statement of claim: ‘in October, 1959, by joining with the first and second defendants and instructing solicitors to act on his and their behalf in administering the estate of the testator and continuing to retain the same solicitors until August 1960.’

It is clear from the primary evidence and the inferences to be drawn from it that the plaintiff knew the solicitors had been employed by the executors in the administration of the estate and that Victor was one of those responsible for that employment. (It is not in point that it was his mother who had spoken to the solicitor on behalf of all three executors when they had in fact ratified her so doing). He also knew that the executors personally or by their solicitors had employed one Hone to effect valuation ... It may well be that ignorance of the legal effect of facts may in certain circumstances afford an answer to a plea of acquiescence where conduct does not amount to an estoppels. But I know of no authority for such a proposition in relation to estoppels: indeed having regard to the judgements in Holt v Markham ((1923) 1 KB 504) (a case in which both parties were ignorant of the legal effect of certain regulations) I doubt if there is any warrant for it in estoppels in pais. In so far as there may be cases of acquiescence to which the normal rules of estoppel do not apply I too agree that the judgement of Wilberforce J in Pauling’s case provides the correct guide and that upon that basis to the plaintiff would fail.

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***

17.5 ACTIONS AGAINST THE RECIPIENTS

OF

ASSETS

Where the assets have been misapplied by personal representatives, and are traceable into the hands of a particular person, the law allows the beneficiaries entitled to such assets to follow them into the hands of the person holding such property. Cases numbers 314, 315 and 316 illustrate the application of the remedy of tracing.

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Overseas Finance Corporation Limited v The Administrator General of Tanganyika Territory (in his capacity as Administrator of the estate of Winifredi Judith Napier Clark) and Oliver Sydenham Chapman (Administrator Ad Litem of the estate of the late Robert Napier Clark) (1942) 9 EACA 1 (Sir Joseph Sheridan CJ (Kenya), Sir Norman Whitley CJ (Uganda) and Sir Henry Webb CJ (Tanganyika) (A beneficiary is entitled to trace estate property or money to which he is entitled to in succession to the hands of the person who has wrongly received such money)

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CASE NO. 314

An advocate was entrusted with some money by his clients for the purpose of purchasing certain property. A portion of the money was misappropriated by the advocate and invested in a goldmine owned jointly by the advocate and his wife, who pre-deceased him. The clients sought to recover the money from the mining company (the advocate and his wife having both since died), which action was resisted by the AdministratorGeneral in his capacity as the administrator of the estate of the wife of the advocate. It was held that where a person holds money in fiduciary capacity, and wrongly uses it or part of it in maintaining or developing his own property, the beneficiary whose money has been so wrongly used is entitled to follow that money into the property so maintained or developed, and is entitled to a charge on the property for the amount of the trust money so wrongly used.

SIR JOSEPH SHERIDAN CJ: It is argued by Mr Atkinson that that portion of the cestui que trust’s money which was misappropriated by Mr Clark and paid by him into the mine account and drawn from that account for the development of the mine is sufficiently earmarked and identified and that on the sale of the mine his client is entitled to follow the money to the proceeds of the sale and have a lien on those proceeds for his money in preference to the ordinary creditors of the mine. It seems to me to be only just that this should be so and provided that I can find adequate authority to support the argument, I am prepared to hold it to be so. In Hallet’s case 13 ChD 696 it was held ‘If money held by a person in a fiduciary character, though not as trustee, has been paid by him to his account at his bankers, the person for whom he held the money can follow it, and has a charge on the balance in the bankers’ hands.’ (There can be no doubt that Mr Clark stood in a fiduciary relationship to the appellants). At pages 708 and 709 Jessel MR said: ‘The modern doctrine of equity as regards property disposed of by persons in a fiduciary position is a very clear and well-established doctrine. You can, if the sale is rightful, take the proceeds of the sale, if you can identify them. If the sale was wrongful, you can still take the proceeds of the sale in a sense adopting the sale for the purpose

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of taking the proceeds, if you can identify them. There is no distinction, therefore, between a rightful and a wrongful disposition of the property, so far as regards the right of the beneficial owner to follow the proceeds. But it very often happens that you cannot identify the proceeds. The proceeds have been invested together with money belonging to the person in a fiduciary position, in a purchase. He may have bought land with it, for instance, or he may have bought chattels with it. Now, what is the position of the beneficial owner as regards such purchases? I will, first of all, take his position when the purchase is clearly made with what I will call, for shortness, the trust money, although it is not confined, as I will show presently, to express trusts. In that case, according to the now well-established doctrine of equity, the beneficial owner has a right to elect to either to take the property purchased, or to hold it as security for the amount of the trust money laid out in the purchase; or, as we generally express it, he is entitled at his election either to take the property, or to have a charge on the property for the amount of the trust money. But in the second case, where a trustee has mixed the money with his own, there is a distinction, that the cestui que trust, or beneficial owner, can no longer elect to take the property, because it is no longer bought with the trust money simply and purely but with mixed fund. He, is however, still entitled to a charge on the property purchased, for the amount of the trust money laid out in the purchase; and that charge is quite independent of the fact of the amount laid out by the trustee. The moment you get a substantial portion of it furnished by the trustee, using the word ‘trustee’ in the sense I mentioned, as including all persons in a fiduciary relation, the right to the charge follows. That is the modern doctrine of equity.’ I cannot perceive any real difference between the purchase of property by a trustee with trust funds and the development of the trustee’s mine by means of trust funds. Why, as Mr Atkinson pertinently asked, should the ordinary creditors of the mine be allowed to receive an increased dividend by reason of the appellants’ stolen money having been used in the development of the mine? Is it equitable that those creditors should be allowed to enrich themselves at the expense of the appellants? Are the appellants not entitled to state their case somewhat as follows: -‘Thanks to our money which you held in a fiduciary capacity and which you stole, employing it in developing you and your wife’s mine, the creditors of the partnership will obtain an increased dividend . Our money in equity is still there in the mine in one form or another whether in machinery or in having discharged mining debts thereby reducing the number of creditors, ensuring that the net sum on the sale of the mine is greater. Is it equitable that the creditors should be allowed to obtain an increased dividend with our stolen money?’ SIR NORMAN WHITLEY CJ: The third and most substantial ground was that on the equitable principle of following up laid down in Hallett’s case 13 Ch D 696 and extended in later cases, the appellants have a lien or charge on the partnership assets for the amount of their money which Mr Clark being in a fiduciary position wrongfully used either directly or indirectly for the purposes of the mine and that, that being so, they were entitled to perfect that lien by taking a charge on the certificate of title. ... The right in equity of a cestui que trust to follow his property which has been misappropriated by someone in a fiduciary relationship into the hands of an innocent third party who has given no consideration has been gradually but steadily extended . In Sinclair v Brougham (1914) AC 398 where it was sought to follow moneys wrongfully employed Lord Sumner observed at page 459:

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‘I agree, without recapitulating the reasons, that the principle on which Hallett’s case is founded justifies an order allowing the appellants to follow the assets, not merely to the verge of actual identification, but even somewhat further.’

In Banque Belgo Pour L’Etranger v Hambrouck (1921) KB 321 ... Atkin LJ concluded his judgement at page 335 as follows: ‘I venture to doubt whether the common law ever so restricted the right as to hold that the money became incapable of being traced, merely because it was paid into the broker’s general account with his banker. The question always was, Had the means of ascertainment failed? But if in 1815 the common law halted outside the banker’s door, by 1879 equity had had the courage to lift the latch, walk in and examine the books: In re Halletts’ Estate. I see no reason why the means of ascertainment so provided should not now be available both for common law and equity proceedings. If, following the principles laid down in In re Hallett’s Estate it can be ascertained either that the money in the bank, or the commodity which it has bought, is the product of, or substitute for, the original thing,’ then it still follows ‘the nature of the thing itself.’ On these principles it would follow that as the money paid into the bank can be identified as the product of the original money, the plaintiffs have the common law rights to claim it, and can sue for money had and received.’

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It is to be observed that in that case the plaintiffs succeeded at common law without having to invoke the help of equity which would have been necessary if the money had become mixed with other moneys and thus not so easily identifiable. The most recent textbook which I have been able to find is Hanbury on Modern Equity 1937 Edition and after reading the author’s chapter on the Jurist Nature of Equitable Rights and Interests (page 55) and pages 340 to 346 in the light of the judgements in Re Hallett’s Estate 13 ChD 696 and the two cases later to which I have referred above it seems to me that the law is concisely and accurately summarised in Halsbury (2 ed) Volume 13, page 200 in the following passage: ‘as between cestui que trust and trustee, and persons claiming under the trustee otherwise than by purchase for valuable consideration without notice, all property belonging to a trust, however much it may be changed or altered in its nature or character, and all the fruits of such property, whether in its original or in its altered state, continue to be subject to or affected by the trust. Upon this rule is based the doctrine of following trust property. The doctrine is not confined to express trusts, but applies to all persons in a fiduciary relation. Hence, if property has been sold, whether rightfully or wrongfully, the cestui que trust can take proceeds of sale if he can identify them. There is no distinction between a rightful and a wrongful disposition of the property as regards the right of the beneficial owner to follow the proceeds. If proceeds have been invested without the addition of further money, in the purchase of other property, the beneficial owner has the right to elect either to take the property purchased or to have a charge on it for the amount of the trust money. If the trustee has mixed the money with money of his own, and has applied the whole in the purchase of property, the beneficial owner is entitled to a charge on the property purchased for the amount of the trust money, and this ranks before any claim by the trustee Since equity does not admit that money has no earmark, the money itself can be followed in equity; and whether the trustee mixes it with his own money, and relations the whole as money, or places the whole in a bank, or invests it in personal securities, effect is given to the beneficial owner’s right by allowing him a first charge on the whole mass of money, or the securities which represent it.’

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It would thus seem that equity will now go as far as is reasonably practicable to restore the rights of a cestui que trust, whose money or other property has been misapplied for his own benefit by the trustee, by following the stolen money into the hands of a third party who has received it or had the benefit of it without consideration and that not merely to the verge of actual identification but even further if it can be ascertained either that the money or the commodity which it has bought is the product or the substitute for the original money. In the present case the money of the appellants was clearly stolen by Mr Clark who was in a fiduciary position and we know the purposes for which he used it. Part went directly into the mine and as to that part I can see no difficulty. I agree that they are entitled to a charge for that amount on the property of the mine which without consideration has had the benefit of that money. Another part of the appellants’ money would appear to have been used indirectly for the benefit of the mine ...

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The object of equity being as I have just observed to place the beneficial owner, so far as is reasonably possible, in the same position as he would have been if there had been no breach of trust it allows him to charge to the amount of the trust money on all the fruits of such money however changed or altered in nature or character so long as they can be traced in some form or other. SIR HENRY WEBB CJ: But before this court the case for the appellants has been put upon a different basis, which is thus stated by Lindley (10 ed 227); ‘Although a firm is not liable to make good trust money applied to its use by one of its members in breach of trust reposed in him, unless the firm can be implicated in the breach of trust, this doctrine will not preclude cestui que trust from following his own money into the hands of the firm, and demanding it back if he can show that the firm still has it, and the firm did not become by it by purchase for value without notice. The true owner of the money traced to the possession of another has right to have it restored, not because it is a debt but because it’s his money.’ In other words, the appellants resist the claim to have their equitable, mortgage declared void, and entry in the register cancelled, on the ground that, if they had had no such security, they would have been entitled to come to the court and ask for what is called a ‘tracing judgement.’ In my opinion, the appellants are entitled are entitled to some relief on this ground The principle upon which such relief may be claimed is thus stated by Turner LJ, in the leading case of Pennell v Deffell 23 LJ Ch 115, ‘It is. I apprehend, an undoubted principle of this court that as between a cestui que trust and the trustee, and all parties claiming under the trustee otherwise than by purchase for valuable consideration without notice, all property belonging to the trustee, however much it may be changed or altering its nature or character, and all the fruit of such property whether in its original or altered state, continue to be subject to or affected by the trust ... But, of course, in these cases as in other cases, the property the subject of the trust, must in some manner be ascertained’ and Page Wood VC in Firth v Cartland (34 LJ Ch 301) said, ‘The principles which apply to these cases of this description are two, which are well known. First the elementary proposition that a trustee can never assert a title of his own to trust property. He may destroy that property and render himself liable in consequence; if it be stock he may sell the stock and invest the proceeds in other property; if he destroys the trust fund by paying away the money, the trust is at an end; but if he invests it in other property, and that can be traced, he is still in possession of the trust property, and to that he can never

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assert a right. The other principle is this: that if a person having trust property and property of his own chooses to mix the two together, the whole becomes trust property, subject to this that whatever he can distinguish as his own he can take out; whatever he cannot distinguish remains for the benefit of the trust until that trust is satisfied; at all events, the trust must be satisfied before the trustee who has mixed the two funds can have a shilling paid to him.’ The cases seem to me to establish the following propositions: (1) if a trustee appropriates trust money and pays it into his own bank account or has it in his possession, or has paid it away without consideration, the cestui que trust can follow it (re Hallett’s Estate 13 Ch D 696 at page 711, Firth v Cartland 34 LJ Ch 301, Banque Belge v Hambrouck 1921 1 KB 321); and (2) moneys drawn out by the trustee for his own purposes will be deemed to have been drawn from his own money so far as it suffices (re Hallett’s Estate 737-741); (3) but if the trustee has exhausted both his own money and the trust money, then the right to a tracing judgement is gone because you can no longer put your finger on some definite fund which either remains in its original state or can be found in another shape (Roscoe v Winder 1915 1 Ch 62: In re Stenning 1895 2 ChD 433); (4) if the trustee has brought land or chattels with the trust money the cestui que trust has a right to elect either to take the property purchased or to have a charge on it for the amount of the trust money; if the property has been purchased in part with the trustee’s own money and in part with trust money, the cestui que trust is entitled only to a charge on the property (re Hallett’s Estate page 709, re Oatway 1903 2 Ch 356); (5) if there has been no lodgement of the trust money in the bank, but only a settlement of account between the trustee and his bankers, it cannot be followed (ex parte Blane (1894) 2 QB 237).

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In re Diplock: Diplock v Wintle (and Asssociated Actions) (1948) 1 Ch 465 (Lord Greene MR, Wrottesley and Evershed LJJ) (Where there is an initial fiduciary relationship, the person beneficially entitled to the property can trace it into the hands of anyone holding the property, except in the cases where such a person is a bona fide purchaser for value without notice)

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CASE NO. 315

The testator had in his will given substantial discretion to his executors to apply his residuary estate for such charitable institutions or other charitable or benevolent object or objects in England as they may select and to be paid to such institutions and objects in such proportions as the executors deem fit. A substantial proportion of the estate was paid to one hundred and thirty-nine charitable institutions without first applying to court. Later the next of kin of the deceased, upon learning of the contents of the will, challenged the validity of the residuary bequest, and intimated the challenge to the executors.The lawyers for the executors wrote to the beneficial charities asking them not to spend the moneys disbursed to them until they received further communication from the executor’s lawyers. Several actions were filed by the next of kin of the deceased centring on whether the next of kin had any claim against the executors of the testator or their estates in respect of devastavit or other misapplication of the testator’s residuary estate. The Court of Appeal held that disappointed beneficiaries or next of kin had rights to trace assets wrongly distributed to the hands of the persons receiving them and to recover the same.

LORD GREENE MR:The matter is however dealt with at length in Roper on Legacies, (4 ed), (1847), Volume 1, Chapter VII s III. under the general title ‘Of the Refunding of Legacies’ it is stated as follows: “with respect to the equity of one legatee to make another refund, it may be stated as a general rule, that an unsatisfied legatee cannot maintain a suit against another who has been paid by the executor; because the remedy on the first instance, is against the executor; who, by discharging one legacy, has admitted assets for the payment of all. But an exception to this rule occurs, when the executor is in an insolvent circumstance; for since the unsatisfied legatee can have no redress against him, he would be without a remedy, unless permitted to call upon the other legatee to refund. Still this permission is qualified, and subject to the following distinctions. If the assets be originally sufficient to satisfy all the legacies, and one of the legatees procure from the executor, either by or without suit, payment of his legacy; and then the executor wastes the estate, so as to render it deficient to discharge the remaining bequests, those legatees cannot oblige the satisfied legatee to refund : first, because the payment was not a devastavit in the executor: and secondly, because the legatee is protected by the principle, that vigilantibus non dormientibus jura subveniunt . but:

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If the assets be originally deficient to answer all the legacies, and a legatee receive from the executor his legacy in full; in that case, as the payment was a devastavit by the executor, and it is a rule in equity, that upon a deficiency, of assets, all general legatees shall proportionally abate, the court will entertain a suit by the unsatisfied legatee, to compel the one so paid, to refund.

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The distinctions upon the present subject are thus stated by Sir Joseph Jekyll ... ‘That as all legatees are, upon a deficiency of assets, to be paid in proportion, so, if the executor paid one of them, the rest should make him refund in proportion; and if one of the legatees obtained a decree for his legacy, and was paid, and afterwards a deficiency happened, the legatee who recovered should refund notwithstanding, in limitation of the spiritual court, where a legatee recovering his legacy was made to give security to refund in proportion. But that if the executor had at first enough to pay all the legacies, and afterwards by his wasting the assets occasioned the deficiency; the legatee, who had recovered his legacy, should not be compelled to refund, but should retain the advantage of his legal diligence, which the other legatees neglected, in not bringing their bill in time, before the devastavit of the executor; whereas, if they had commenced their suit before the commission of the waste ¸they might have obtained the same succession.”

... What then is the conclusion to be drawn on this part of the appellants’ claim from what we fear has been a long citation of the authorities? It is not, we think, necessary or desirable that we should attempt any exhaustive formulation of the nature of the equity invoked which will be applicable to every class of case. But it seems to us, first, to be established and that the equity may be equally to an unpaid or underpaid creditor, legatee or next of kin. second, it seems to us that a claim by a next of kin will not be liable to be defeated merely (a) in the absence of administration by the court: or (b) because the mistake under which the original payment was made was one of law rather than fact; or (c) because the original recipient, as things turn out, had no title at all and was a stranger to the estate; though the effect of the refund in the last case will be to dispossess the original recipient altogether rather than to produce equality between him and the claimant and other persons having a like title to that of the recipient. In our judgment also there is no justification for such limitations to be found in the circumstances which gave rise to the equity. And as regards the conscience of the defendant upon which in this as other jurisdictions equity is said to act, it is prima facie at least a sufficient circumstance that the defendant, as events have proved, has received some share of the estate to which he was not entitled. ‘a party’ said Sir John Leach in David v Frowd (1833) I My and K 200 at page 211; 39 ER 657 at 661 ‘ claiming under such circumstances has no great reason to complain that he is called upon to replace what he has received against his right.’ On the other hand, to such a claim by an unpaid beneficiary, there is, in our judgement, at least in circumstances such as the present, one important qualification. Since the original wrong payment was attributable to the blunder of the personal representatives, the right of the unpaid beneficiary is in the first instance against the wrongdoing executor or administrator; and the beneficiary’s direct claim in equity against those overpaid or wrongly paid should be limited to the amount which will be the amount which he cannot recover from the party responsible. In some cases the amount will be the whole amount of the payment wrongly made, e.g. where the executor or administrator is shown to be wholly without assets or is protected from attack by having acted under an order of the court.

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Authority for this qualification is to be found in the judgement of Sir J Strange in the case of Orr v Kaines (1750) 2 Ves Sen 194; 28 ER 125, where he observed that, if the executor is insolvent, an unpaid legatee is admitted to claim direct from the wrongly paid recipient because ‘there is no other way.’ ... In our judgement the absence or exhaustion of the beneficiary’s right to go against the wrongdoing executor or administrator ought properly to be regarded as the justification for calling upon equity to come to the aid of the law by providing a remedy which would otherwise be denied to the party who has been deprived of that which justly is his. In the present case the order of April, 1944, put an end, on the terms recited in the order, to any claim which any of the next of kin of Caleb Diplock might otherwise have had against his executors or their estates or any of them. Though we have not been told of the exact circumstance in which that order came to be made., it must, in our view, be assumed that the compromise sanctioned by the order represented a fair estimation of what might have been recovered from the executors or their estates in the course of proceedings brought against them . And it must also in our judgement necessarily be assumed that in no circumstances could the full total of the sums wrongly paid away – which amounted to over 200,000l. - have been recovered from the executors or their estates.

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We have not been informed of the exact sum recovered under the compromise. But it follows in our judgement that the sum recovered ought to be credited rateably to all the one hundred and thirty-nine charities so that the maximum amount which in equity can be recovered by the next of kin from any respondent is thus limited to the same proportion of the sum paid to that respondent as the balance of the total sum paid away by the executors to the one hundred and thirty-nine charities less the total amount recovered from the executors and their estates bears to the total sum paid away. For example, if the amount so recovered is one-fourth of the total sum paid away, then the maximum liability of any respondent to refund direct to the next of kin would be three-fourths of that which such respondents received. ... The result of the whole matter is that the appellants are, in our judgement, entitled to succeed on all the appeals. having regard to the view we have expressed in regard to their claims in personam and in regard to the failure of the defences of the Statute of Limitations to those claims, and in the light of the submissions made to us, the appellants would under this head of their claim be entitled, as it appears to us, to orders against each of the respondents for payment to the judicial trustee of an amount equivalent to the total sum paid to that respondent less a rateable proportion of the sums recovered from the executors or their estates, but without any interest.

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Saleh bin Mohamed bin Omar Bakor v Noor binti Sheikh Mohamed bin Omar Bakor (1951) 18 EACA 30 (Sir Barclay Nihill P, Sir Newnham Worley VP and Lockhart-Smith JA) (A beneficiary is entitled to follow assets into the hands of the person wrongly receiving them)

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CASE NO. 316

The Public Trustee had been granted letters of administration; he closed his accounts and thereafter filed them under the Public Trustee’s Rules, 1925. The Registrar passed the accounts as final and issued a certificate under the rules.. The accounts filed by the Public Trustee did not include income from the property of the deceased collected by the appellant, who was to be sued by a beneficiary as money had and received being her share of the collection. It was held that the Public Trustee had been fully discharged following the passing of final accounts. It was further held that a beneficiary was entitled to follow assets into the hands of the person wrongly receiving them without necessarily revoking the grant of letters of administration.

SIR NEWNHAM WORLEY VP: The crux of the matter is, therefore, what is the effect in law of the certificate given by the taxing officer under rule 3? The rule provides an elaborate procedure for the passing of the accounts by the taxing officer after notice given in the prescribed manner to person interested and after hearing objections, with provision for a review by the court. It is further provided that; ‘a certificate under the hand of a taxing officer or of a judge of the court to the effect that the accounts have been examined and found correct shall be a valid and effectual discharge in favour of the Public Trustee as against all persons whatsoever.’ There can be no doubt then that the legislative authority (in this case the Governor in Council) intended and so enacted that the certificate should effect a complete and final discharge and that any Order of Court revoking or recalling the grant of administration should be a mere formality. One may doubt whether the form of notice prescribed in the rule is likely to come to the knowledge of the beneficiaries interested; one may wonder why the Public Trustee verified the accounts and why the taxing officer certified them without either any explanation as to why no income had been accounted for or any evidence that the assets had been transferred to the beneficiaries, but, unsatisfactory as these features of the administration may be, they cannot in my opinion affect the certificate given, the effect of which was to discharge the Public Trustee from the administration. Counsel for the appellant suggested that the respondent’s proper course would have been to induce the Public Trustee to take action to recover from the appellant or even to join him in this action; but had she done so, she would in my view have

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been met with the answer that she should have brought her objections to his accounts before they were passed. Since she is now debarred from so doing, I know of no rule of law or equity which will debar her from the alternative remedy she has sought in this action. She is entitled to if she can follow the assets into the hands of a person who has wrongly received them, to seek to recover them, without necessarily revoking the letters of administration: see Mohan v Broughton (1900) LR page 56.

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In my view, therefore, the learned judge rightly held that in the circumstances, section 8281 of the Indian Probate Act was no bar to the respondent’s claim and that she had a good cause of action. For these reasons, I would dismiss the appeal with costs and affirm the judgement appealed from.

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Section 82 of the Indian Probate and Administration Act, 1881 provided as follows: ‘After any grant of probate or letters of administration, no other than the person to whom the same shall have been granted, shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased, throughout the province in which the same may have been granted, until such probate or letters of administration shall have been recalled or revoked.’

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CHAPTER 18 ESTATE ACCOUNTS 18.1 INTRODUCTION The law provides for the preparation of estate accounts. This is important as the personal representatives are accountable to both creditors and beneficiaries. They may therefore be required at any time to file an account for the benefit of the creditors or beneficiaries.

18.2 RIGHTS

OF

BENEFICIARIES

TO AN

ACCOUNT

The law provides a statutory right to beneficiaries to an account from personal representatives. The personal representative is a trustee; he is in a fiduciary position with respect to the property and in his relationship with the creditors and beneficiaries. He is under an obligation to account to them of his administration of the estate. The requirement for provision of accounts is provided for in sections 83(g), (h) and 92 of the Law of Succession Act. Section 83(g)(h) provides as follows: ‘83(g) to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings herewith up to the date of the account;

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(h)

to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.’

Section 92 of the Law of Succession Act provides as follows: ‘92(1)

Any person making or permitting to be made any payment or disposition in good faith under a grant of representation shall be indemnified and protected on so doing, notwithstanding any defects or circumstances whatsoever affecting the validity of the grant.

(2)

Where a grant of representation is revoked or varied, payments and dispositions made in good faith to a personal representative under that grant before the revocation or variation thereof shall be a valid discharge to the person making them, and a personal representative who has acted under the revoked or varied grant may retain and reimburse himself in respect of any payment made charge to the person making them, and a personal representative who has acted under the revoked or varied grant may retain and reimburse himself in respect of any payment made by him which any other person to whom representation is afterwards granted might have properly made:

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Provided that a personal representative who so acted shall account for all payments, dispositions, retentions or reimbursements made by him to the person or persons to whom representation is afterwards granted.’

Case numbers 317 and 318 state the legal position, that personal representatives are under a duty to account for the administration of the estate to the beneficiaries. In the Matter of the Estate of Anthony Gichigi Wairire (Deceased) Eldoret High Court probate and administration cause number 32 of 1983 (Nambuye J)

CASE NO. 317

(An administrator is a trustee, and he remains accountable to the beneficiaries for his handling of the administration of the estate) A purchaser of property belonging to the estate, sold to him by the personal representative of the deceased, moved the court for a declaration that the transfer of the property to him by the administrator was valid and absolute. The court remarked that although there is a general power of sale given to administrator, the administrator remains accountable to the beneficiaries for the manner he handled the property which makes up the estate.82

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NAMBUYE J: ...The property subject of this ruling was sold by a personal representative whose powers and duties are set out in sections 82 and 83. I have perused the same and find that there is power to sell as per section 82(b) – ‘To sell or otherwise to turn to account so far as seems necessary or desirable in the execution of their duties all or any part of the assets vested in them as they think best.’ I find nothing in this section which removes accountability of the personal representative to the beneficiaries. Section 83 on the hand enjoins him to give a full inventory of the assets and liabilities of the estate and complete the administration within 6 months and distribute the estate. When that section is applied to the facts herein. I find that despite the grant having been issued way back in 1984, the administrator has not furnished the inventory of assets and liabilities neither has he distributed the estate of the deceased. He has not sworn any deponement in respect to this application explaining the circumstances under which the property was sold, from whose benefit it was sold and what became of the proceeds of sale. The applicant’s counsel has submitted that that notwithstanding, the applicant is a purchaser for value and his interests are protected. The application is made under rule 49 of the Probate and Administration Rules which simply gives the mode of

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The court ought to have pointed out to the applicant purchaser that as purchaser of property from the estate, he could not move the court in a succession for orders against the estate. The right course of action would have been filing an ordinary suit under the Civil Procedure Act and Rules.

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procedure and rule 73 which is a saving rule and gives the court inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Section 93 of the Act has also been cited. I have perused the same and find that it provides protection for transfers by a personal representative but there is nothing in it which states that such transfers are absolute and they cannot be challenged even by beneficiaries. In the Matter of the Estate of John Ngugi Kimani (deceased) Nairobi High Court succession cause number 1830 of 1999 CASE NO. 318

(Koome J) (The administrators are under a duty to account to beneficiaries with regard to their administration of the estate of the deceased) The facts are set out in the ruling.

KOOME J: Application dated 9 June 2003 seeks for orders of accounts. If the parties cannot agree on the accounts an auditor should be appointed to audit the Estate Account. The applicants also seek for an order that the administrators should cease forthwith from deducting KShs 5 000 from their monthly allowances and the payment of the sum wrongly and irregularly deducted from their allowances be reimbursed. This application is made by two beneficiaries, James Gitau Ngugi and Paul Njoroge Ngugi. The estate is being administered by Elizabeth Wanjeri Ngugi representing the third house, Charles Kimani Ngugi representing the second house and Joseph Njogu Ngugi the applicant’s brothers and also representing the first house.

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It is not disputed that at a family meeting a decision was reached whereby it was agreed that every beneficiary was to be paid a sum of KShs 30 000 per month being towards their own maintenance. It was also agreed upon that the wives of the deceased would be paid allowances as follows: Elizabeth monthly allowance of KShs 180 000 Priscilla monthly allowance of KShs 50 000 Esther Wangui monthly allowance of KShs 35 000

The administration of the estate has been difficult due to tensions and lack of agreement between the co-administrators who find it difficult to meet and agree on a common approach especially on payment of monthly allowances and other matters regarding the estate management. During the hearing it transpired that the monthly allowance that is due to the applicants was deducted unilaterally and for no apparent reason and against the family agreement by Elizabeth Ngugi. These allowances were agreed upon with the administrators and survivors. However the two applicants are being deducted KShs 5 000 being rent for the premises they occupy and they contend the deduction is unconceivable since other beneficiaries are residing at the deceased’s premises rent free. The first respondent

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opposed the application and insists that the applicants subsequently moved to the deceased’s premises and they therefore should pay the rent. This notwithstanding the other beneficiaries occupying the deceased premises are not being deducted rent. The first respondent argue that the other beneficiaries were occupying the deceased premises even during his lifetime and therefore they should not be charged rent. I disagree with that argument as when the deceased passed away all the properties belonged to the deceased. All the survivors who are deceased children should be subjected to equal treatment and there is no reason why the respondents decided to deduct some beneficiaries and not others who are deceased children. Except for Elizabeth Ngugi the other co-administrators are not opposed to the application save that they state the arrears owing is not the sum stated in the applicant’s application but as follows: James Gitau KShs 180 000 Paul Njoroge KShs 105 000

I have considered the submissions by counsel, the replying affidavits the documents filed in support of the application and I therefore order the following: The administrators of the deceased estate do pay arrears of the monthly allowances of KShs 180 000 to James Gitau and KShs 105 000 to Paul Njoroge within seven (7) days of this order. The administrator to continue paying the agreed sum of maintenance to the applicants as agreed and the said amounts be made on or before the 12 day of every month

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The administrators should also compile the accounts of the estate as well as the list of the assets and liabilities. If this is not done within a period of 30 days, any of the applicants will be at liberty to engage an independent reputable firm of auditors to audit and compile the list and value of the deceased assets.The audit fees and valuation fees shall be borne by the estate of the deceased and the accounts be filed in court within 20 days from the date of court compilation. ***

18.3 ACCOUNTS UNDER

THE

LAW

OF

SUCCESSION ACT

The Law of Succession Act has several provisions under which the personal representative is required to account to court and to the beneficiaries of his conduct of the affairs of the estate. Some of these provisions include sections 83, 94 and 95 of the Law of Succession Act. These provisions state as follows:‘83(g) to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings herewith up to the date of the account; (h) to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.’

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‘94.

When a personal representative neglects to get in any asset forming part of the estate in respect of which representation has been granted to him, or misapplies any such asset, or subjects it to loss or damage, he shall, whether or not also guilty of an offence on that account, be liable to make good any loss or damage so occasioned.’

‘95

Any personal representative who, as regards the estate in respect of which representation has been granted to him: (a)

wilfully or recklessly neglects to get in any asset forming part of the estate, misapplies any such asset, or subjects any such asset to loss or damage; or

(b)

wilfully fails to produce to the court any such inventory or account as is required by the provisions of paragraphs (e) and (g) of Section 83; or

(c)

wilfully or recklessly produces any such inventory or account which is false in any material particular ; or

(d)

knowing or having reason to believe that the estate will prove to be insolvent, continues to administer it without petitioning for administration thereof in bankruptcy,

shall be guilty of an offence and shall be liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding one year or to both such fine and imprisonment.’ Case number 319 discusses the provisions of sections 94 and 95 of Law of Succession Act which defines the duty of personal representatives to account for the administration of the estate to the beneficiaries. In the Matter of the Estate of Huseinbhai Karimbhai Anjarwalla Mombasa High Court probate and administration number 118 of 1989 (Waki J)

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CASE NO. 319

(A personal representative has a duty to give an account of the handling of the estate to the beneficiaries) An account was sought in this matter by a son who was wrangling with his mother over the estate of his deceased father.The court directed the account in terms of Sections 94 and 95 of the Law of Succession Act.

WAKI J:What is before me and the subject matter of this Ruling is a Chamber Summons dated 26 June 1997 (before the Ruling in the Originating Summons aforesaid), taken out by Salim seeking orders that his mother, Mehmuda, should: ‘Provide full and detailed accounts including income and expenditure of the estate of the deceased.’

and in default that she should be condemned to criminal action. the Sections of the law relied on are sections 45, 94, 95, of the Succession Act and Rules 49, 58, 59 and 63 of the Probate and Administration Rules thereunder. Learned counsel Mr Master appeared for Salim although the application was filed through Rustam Hira, Advocate. In essence it is submitted that Mehmuda as the sole

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surviving executrix of the estate and has the sole possession of all Books of Accounts of the estate and has control of Bank Books and all other income. She has nevertheless failed to provide full and final accounts of the estate or to distribute the same to the beneficiaries one of whom is Salim. Mehmuda is also accused of wasting the estate by filing the suit she filed in court and other actions details of which were not given. she does not know, it is alleged, what she wants in filing those suits. Mehmuda on her part, this time representing herself after apparently losing faith in the various advocates hitherto acting for her, pleaded that she has always been ready to complete the administration of the estate but has met hostility, harassment, trickery and stonewalling from the very people she trusts to assist her in finalising the affairs of the estate, principally her son Salim. She still has a suit pending seeking from various persons details of the estate’s property inorder to complete the accounts and distribution of the property. She referred to various correspondences highlighting the basis for her enquiries in relation to those properties. The application, she says, is therefore unmeritorious, misconceived and sub judice. I have considered these submissions. Section 94 and 95 of the Succession Act which are relied on provide: ‘94.

When a personal representative neglects to get in any asset forming part of the estate in respect of which representation has been granted to him, or misapplies any such asset, or subjects it to loss or damage, he shall, whether or not also guilty of an offence on that account, be liable to make good any loss or damage so occasioned.’

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‘95(1) Any personal representative who, as regards the estate in respect of which representation has been granted to him: (a)

wilfully or recklessly neglects to get in any asset forming part of the estate, misapplies any such asset, or subjects any such asset to loss or damage; or

(b)

wilfully fails to produce to the court any such inventory or account as is required by the provisions of paragraphs (e) and (g) of Section 83; or

(c)

wilfully or recklessly produces any such inventory or account which is false in any material particular ; or

(d)

knowing or having reason to believe that the estate will prove to be insolvent, continues to administer it without petitioning for administration thereof in bankruptcy,

(e)

shall be guilty of an offence and shall be liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding one year or to both such fine and imprisonment.’

It is not the complaint of the applicant in terms of section 94 that the executrix has neglected to get in any asset forming part of the estate. On the contrary it is his complaint that she is trying too hard to do that and thus taking too long to finalise execution of the will. It is not his complaint that the assets have been misapplied either. It is rather that the executrix has intermeddled in the estate hence the call for her punishment under section 45. But section 45 cannot apply to one who is lawfully allowed to deal with the affairs of the estate. The plain reading of the section makes that clear.

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Section 95 provides for offences by personal representatives and imposes a burden on the party alleging commission of those offences to prove mens rea. That is why the various offences are prefixed ‘wilfully’ and ‘knowingly.’ the particular offence cited here is under (b). Before that provision can be invoked however, it must be shown that the court has made an order on its own motion or on application of any person interested in the estate for the filing of the accounts. Invoking section 95 without compliance with section 83 would in my view be premature. In my assessment the application does not lie under the three sections of the Succession Act cited and I would dismiss it with costs. Having said that however, it is not lost to me that it is the duty of the personal representative of a deceased under section 83 as amended by Act 18 of 1986: ‘(g)

To produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings herewith up to the date of the account;

(h)

to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.’

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The grant herein was confirmed on 23 July 1990 which is more than 9 years ago. I do not see on record any compliance with these provisions above.83 In the result I order on my own motion in accordance with section 83(g) that the executrix shall file with the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate Account of all dealings therewith up to the date of the account. The executrix has a duty under the same section inter alia to get in all free property of the deceased and is at liberty to reasonably exercise those powers in pursuit of such property. Indeed it is an offence under section 95 to wilfully or recklessly neglect to get in any asset forming part of the estate. Pursuit of such duty does not however preclude the executrix from filing Accounts as required by law. She has a period of 90 days from the date hereof to comply with the order.The matter will be mentioned on 29 February 2000 to confirm compliance.

83

But compliance should only arise in circumstances where the court has directed that accounts be prepared and filed.

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PART SEVEN POST-MORTEM ALTERATIONS The principles of post-mortem alterations developed in the law of testate succession but in practice they apply also in the event of the intestate succession. Post-mortem alteration refers to changes that are often made after the testator has died. The will of the deceased will not always be honoured totally as in certain cases his wishes can be disregarded or modified.

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Chapter nineteen has cases where the wishes of the deceased are modified by the court because he had not provided adequately for some members of his family. The cases here cover the principles that apply with respect to the making of reasonable provision for family members who seek the intervention of the court upon a complaint that the deceased did not adequately provide for them in his will. Chapter twenty contains the case where the beneficiaries cause the alteration of the testator’s wishes through renouncing or disclaiming their right to the gifts made to them in the will.

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CHAPTER 19 DEPENDENCY 19.1 DEPENDENCY

AND

AND

FAMILY PROVISIONS

FAMILY PROVISIONS

Under the Law of Succession Act a dependant or member of the family of the deceased who considers themselves to be inadequately provided for from the estate of the deceased may move the court under section 26 for reasonable provision out of the estate. Section 26 says as follows: ‘26.

Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on an application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased estate effected by will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of both the will, gift and law, is not such as to make reasonable provision for the dependant, order that such reasonable provision as the court thinks fit shall be made for the dependant out of the deceased’s net estate.’

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Cases numbers 320 and 321 define and illustrate the circumstances under which section 26 of the Law of Succession Act applies. They demonstrate that the court has power to intervene to make provision for family members who have not been adequately provided for out of the will of the deceased or in intestacy.

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Elizabeth Kamene Ndolo v George Matata Ndolo Nairobi Court of Appeal civil appeal number 128 of 1995 (Gicheru, Omolo and Tunoi JJA) (A testator has freedom, under section 5 of the Law of Succession Act, to will away his property as he wishes, but that freedom is not absolute, it is fettered by section 26 of the Law of Succession Act, which empowers the court to interfere with it and make provision for any dependent who the deceased has disinherited or failed to inadequately provide for)

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CASE NO. 320

The deceased died a polygamist with three wives. It was purported that he died testate, leaving a will which provided for his third widow, but making no provision at all for the first and second widows. The two widows objected to the grant of probate being made to the executors, one of them being the third widow. Their objection was rejected. Thereafter the two widows sought for reasonable provision under section 26 of the Law of Succession Act, the High Court found in their favour, and ordered transfer of some parcels of land to them and a monthly allowance be paid to them. Apparently, the High Court order was complied with but none of the parties appealed. A son of the deceased by one of the two widows sought revocation of the grant of probate on the ground the will the subject of the grant was not made or executed by the deceased. The High Court, after recording evidence, held that the will was a forgery.The Court of Appeal, upon reviewing the evidence on record, overturned the High Court’s decision, and held that the will was properly executed by the deceased and was therefore valid. Thereafter counsel for the parties invited the Court of Appeal to resolve the matter without referring it back to the High Court, whereupon it applied section 26 of the Law of Succession Act, and made provision for the two widows who had been disinherited.

GICHERU, OMOLO AND TUNOI JJA: At the hearing of the summons for revocation or annulment these three issues were further compounded into one, namely that the document produced before the court and purporting to be the last will and testament of the deceased was nothing of that kind because the deceased never signed it. That was the burden of the case put before the learned judge by the respondent and upon which the judge was called to pronounce. The learned judge resolved that issue by holding that the deceased never signed the document and that that being so, the deceased died intestate. She held that the purported will was a forgery but having done so, she did not proceed to say what was to happen to the estate of the deceased.

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Right from the start of this judgement, we set out the date when the appellant applied for grant of probate of the will of the deceased; it was in February 1985. The other two widows Alice and Rose objected to the application and this was in March 1985. We are unable to tell the grounds upon which their objections were based, but those grounds could not have been that the will had not been signed by the deceased and was accordingly not his will but even if such had been the case Butler-Sloss, J, rejected the objections in 6 November 1986 and granted to the appellant the probate of the deceased’s will. The judge proceeded to give Alice and Rose leave to make an application to the court under section 26 of the Act and the application was actually made, heard and determined upon its merits. That could have been done only on the basis that the deceased will had been valid, but had failed to make reasonable provisions for the two widows. In these circumstances, it is a matter of surprise to us that the present respondent who is in fact the son of Rose by the deceased should in April, 1989, some four years after the application for a grant by the appellant, lodge his summons for the nullification of the grant on the basis that the deceased had not signed the will.Why was this point not raised during the objection by Alice and Rose? And if it was raised but overruled by Butler-Sloss J why no appeal was lodged against that ruling? It is hardly reasonable to think that the respondent was unaware of the dispute over the will between his mother Rose and the appellant. We are cognisant of the fact that section 76 of the Act does not set any time limit within which a summons for revocation or annulment of a grant can be taken out.

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... What made the learned judge find, so late in the day, that the will in dispute before her was a forgery? We start by saying that it was the respondent who was alleging the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was not certainly one beyond reasonable doubt as in criminal cases. Mr Billing who led for the appellant before us contended that the learned trial judge did not appreciate upon whom the burden of proof lay and the standard of that burden. We think there is no substance in that contention. While the learned judge did not specifically direct herself on the question of where the burden lay and the standard of the burden, it is clear to us from the tone of her judgement that she was perfectly alive to these issues for she specifically says in her judgement and we quote her: ‘Similarly, it is not the applicant’s case that it was the respondent who forged the document in court to my mind the furthest the applicant can go in these proceedings is to allege and prove to the satisfaction of this court that the deceased did not sign the document in court. The issue of who did it and for what reason and what other step should have been taken in criminal proceedings are matters which are very serious but not before this court.’

It is clear from the passage that the learned judge was aware of what the respondent had to allege and prove; she was also aware that the burden of proof required was ‘to the satisfaction of this court’ and Mr Billing conceded before us that proof upon a balance of probabilities. The former is obviously higher than the latter. In support of his contention that the will was a forgery, the respondent called a witness one Hezron Wamalwa (PW1) and Chief Inspector of Police john Nderitu

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Theuri (PW4). the respondent himself also gave evidence as PW3 and the burden of his evidence was clearly that he submitted the photocopy of the will in issue to a document examiner (PW1) who found that the deceased had not signed it . PW1 himself had been a document examiner with the Government of Kenya for some 25 years, but by the time he examined the alleged will of the deceased (around 17 March 1989) he had retired from the public service and was in private practice. He swore repeatedly that the signature on the will was not that of the deceased. PW4 was the police officer to whom the respondent reported the alleged forgery of the will. he also submitted the document to an examiner, one A N Munga. Munga was not called to give evidence but PW4 produced his report which is to be found in pages 169 to 170 of the record of appeal. Munga’s report agreed with that of PW 1. In support of her contention that the will was not a forged one, that is that it had been signed by the deceased the appellant had called three witnesses. These were Mr James Frederick Hamilton (DW1), Miss Rosemary Alke Gardner (DW2) and Mr Mackenzie Mweu (DW3). Who was DW1? He was and still is an advocate of the High Court of Kenya and at the time he gave evidence before the learned judge, he had been practising law for some 51 years. The deceased had been his client and he told the judge it was him who had drawn up the will in dispute before her. The typed proceedings containing the evidence of DW1 is very confused and obviously not correct but we think we can do no better than quote Mr Hamilton verbatim. He is recorded as saying in examination-in chief: ‘ ... the late Major-General Ndolo was a client of mine for many years. I remember preparing a testamentary instrument under his instructions. Sometime this year I saw the angel (copy?) of the will but I can’t remember who presented it to me. I can see this photocopy of the will MFI D (i). It is the one I prepared. I recall instructions from the deceased to prepare the document. There are some alterations on page (2) par. (5)(d). the initials in the margin are of the late General Ndolo of Miss Gardner and of the other wives. Also of Mrs Mweu (Muchiri?) who was working in our office at that time.Taking (H) they are the same hand. I was present when the initials were being placed there. That is my handwriting.

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Page 6 The signature is General Ndolo’s. I saw him writing that signature. The heading 14th May if General Ndolo’s. The other is Miss Gardner. She has been with me for approximately 20 years. The other is Mrs Mwalu’s (Muchiri’s?) signature. I have not seen her for a number of years. I can’t vouch for her. There ... note reads; ... sent the General a draft of the will with blanks in it. I was not clear on certain things. When he came in with it he said he in my presence. He ... the ... the addition in the word manner.’

As we have said this evidence as recorded is difficult to understand but the purpose of Mr Hamilton’s evidence is unmistakable. The deceased gave him instructions to prepare a will. He prepared a draft with some blank spaces in it as he was not very clear over certain matters. He then sent the draft to the deceased. The deceased later came to Mr Hamilton’s office with the draft which he said he wanted to sign and Hamilton, in his own hand, filled in the blank spaces in the draft and the deceased and DW2 put their initials on the margins obviously to authenticate Hamilton’s handwritten portions of the will. DW2 was Hamilton’s secretary for some twenty years and she signed the will as an attesting witness. The deceased also signed the will and the second attesting witness was a Mrs Muchiri who was not, however, called to testify. Mrs Muchiri was also a secretary in the firm of M/S Hamilton Harrison and Mathews of which Mr Hamilton was a partner. DW2 identified her signature and that of Mrs Muchiri.

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Finally we must briefly refer to the evidence of DW1. He was a document examiner still in public service. He also examined the signature in the disputed will and his conclusion was that the signature was that of the deceased. We do not subscribe to Mr Muigua’s contention that DW1’s evidence agreed with that of PW 1 and Munga. Mr Muigua obviously misunderstood the evidence of DW3.

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This was the state of the evidence before the learned judge and as we have said, having analysed that evidence, she came to the conclusion that the deceased had not signed the will. this was clearly a finding of fact and an appellate tribunal like our court will not readily interfere with a trial judge’s findings of fact unless it is shown that there is no evidence to support a particular conclusion, or that a judge has failed to appreciate the weight or bearing of circumstances admitted or proved or that the judge has plainly gone wrong – see Peters v Sunday Post Limited [1958] EA 424. Of course, it must also not be forgotten that this being a first appeal to this court, we are entitled, indeed duty bound, to review the evidence to determine whether the conclusion of the learned judge should stand, though we must bear in mind that we have neither seen nor heard the witness as did the judge. DW2 and DW2 swore that they saw the deceased sign the will. The assertion by DW 1 that the deceased was a long-time client of his was never challenged. The learned judge herself expressly found that the deceased went to DW1’s office and asked DW 1 to prepare a will. DW1 said he did so and he identified a copy of the will in court and identified the signatures of the deceased and DW2 on it. He also identified his handwritings on it. DW2 had been a secretary to DW1 for some twenty years and it could not be reasonably said that DW1 would not be familiar with her signature. DW2 herself identified her signature on the will. DW1 was neither a beneficiary under or an attesting witness to the will so that even if the evidence of DW2 required corroboration as the learned judge asserted it did, the evidence of DW1 could not possibly require such corroboration.The learned trial judge obviously failed to appreciate that if the evidence of DW2 required corroboration because she was an attesting witness, Mrs Muchiri could not have provided such corroboration if she had been called because she was also an attesting witness and her evidence would have fallen in the same category with that of DW2. Evidence which itself requires corroboration cannot be corroborative of other evidence. The judge did not, in fact, disbelieve DW1 and DW2. On the contrary, she said in her ruling and we quote her: ‘... I must state here and now that at no time did I form the impression that these two witnesses (i.e. DW 1 and DW 2) were not telling me the truth. The impression I formed was that the matter had taken so long that none of these two were quite sure whether the General ever came to their office for the sole purpose of signing a will. Mr Hamilton was not sure whether the attestation was done in Miss Gardner’s office by the General. Miss Gardner’s evidence was also not clear where this was done. Secondly, there is the issue that the General was a longstanding client of Mr Hamilton. It is quite obvious that Mr Hamilton could genuinely be confused as to whether the General ever signed the will. I have no doubt in my mind that the General gave some instructions for the will to be drawn. I have my doubts based on the evidence before me that he never actually signed the same.’

We agree with the learned judge that DW1 and DW2 could not have been liars in the matter; there was absolutely no possible reason for their lying. We also agree with the learned judge that by the time the two witnesses testified before her, the vents they talked about had taken a very long time and there was a possibility of forgetfulness

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arising. But we still ask ourselves: where could the confusion the learned judge talks about arise from? She agrees the deceased was a long time client of DW1; she also agrees the deceased instructed DW1 to prepare a will. DW1 and DW2 identified a copy of that will before her. They also identified the signature of the deceased upon it. DW2 identified her signature upon it and DW1 also identified DW2’s signature. Could it be said that the matter had taken so long a time DW1 and DW2 could have forgotten what the signature of the deceased used to be? Could the matter have taken so long that DW 2 would have forgotten her own signature? And if it be accepted, as it must be, that DW 2’s signature was on the document, what would she have been attesting when she appended that signature - the signature of the phantom forger of the will? We think the learned judge did not appreciate the weight of these admitted facts and her conclusion from them was plainly wrong. The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along all the other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say: ‘Because this is the evidence of an expert, I believe it.’

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The evidence of PW 1 was nicely balanced by that of DW3 and though PW1 had support in the report of Munga, the matter could not be resolved by saying that DW3 stood alone. The learned judge was still duty-bound to say why she believed PW1 and Munga and disbelieved DW3. We note that when the deceased signed the will, he simply wrote all his names while all the known specimen signatures submitted for comparison with that in the will were all in shortened versions of the deceased’s names. The difference was bound to be obvious. We have said enough, we think, to show that the learned trial judge plainly went wrong in rejecting the eyewitness account given by DW1 and DW2 and preferring the expert opinion of PW 1. It is noted that at no stage was it ever suggested to DW1 and DW2 that they were mistaken as to the signature they identified as that of the deceased and that the deceased never signed any will before them. We accordingly allow grounds five, six, seven, eight, nine and ten of the grounds of appeal. We set aside the judge’s finding that the will was not signed by the deceased and that it was a forgery and substitute therefor a finding that the will was signed by the deceased and was not a forgery. That would have been the end of the matter before us, but we were asked or authorised by counsel on both sides to finally determine this dispute without referring it back to the High Court. We think we should do so and put an end to this very unfortunate wrangling. In his lifetime, the deceased was a polygamous man married to three wives. Polygamy is a lawful institution in our country and it will probably take some doing by Parliament to put an end to it. The seeds of the dispute were sawn by the deceased himself when he failed to make any provision in his will for his first two wives. The court must, however, recognise and accept the position that under the provisions of section 5 of the Act every adult Kenyan has an unfettered testamentary freedom to dispose of his or her property by will in any manner he or she sees fit. But like all

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freedoms to which all of us are entitled the freedom to dispose of property given by section 5 must be exercised with responsibility and a testator exercising that freedom must bear in mind that on the enjoyment of that freedom, he or she is not entitled to hurt those for whom he was responsible during his or her lifetime. The responsibility to the dependants is expressly recognised by section 26 of the Act which provides as follows: ‘where a person dies after the commencement of this Act and in so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and the law is not such as to make reasonable provision for that dependant, order that such reasonable provision, as the court thinks fit, shall be made for that dependant out of the dependant’s net estate.’

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This section clearly puts limitations on the testamentary freedom given by section 5. So that if a man by his will disinherits his wife who was dependent on him during his lifetime, the court will interfere with his freedom to dispose of his property by making reasonable provision for the disinherited wife. Or if a man at the point of his death gives to his mistress the family’s only home and makes no reasonable provision for his children who were dependent on him during his lifetime, the court may well follow the mistress, under section 26, and make reasonable provision for the dependent children out of the house given to the mistress. So that though a man may have unfettered freedom to dispose of his property by will as he sees fit, we do not think it is possible for a man in Kenya to leave all his property for the maintenance and upkeep of an animal orphanage if the effect of doing so would be to leave his dependants unprovided for. While the deceased was entitled to dispose of his property as he pleased, he was not entitled to leave his first two wives Alice and Rose without any reasonable provision for their maintenance. As we have said elsewhere in the judgement of the Commissioner of Assize Mr A B Shah, now a member of this court, made some provisions for the two women but as the learned trial judge pointed out in her ruling those provisions came to nought and Alice was said to have died in terrible poverty. We cannot allow that to continue and the only way we think of to make reasonable provisions for all of the deceased’s lifetime dependants is to do so according to the three houses, each house representing a widow. We must, however, take into account the undoubted fact that the appellant herein was the deceased’s preferred wife and we can only do so by allocating her house a larger share of the deceased’s estate. And of course the only valuable asset in the estate is the Mawani Ranch which was said to be over 9, 000 acres. 1,000 acres have been sold, leaving 8,000 acres. There may be still livestock on the ranch but we shall not go into all those details. We accordingly order that out of Mawani Ranch, the appellant and her house shall receive 40% thereof while the houses of Alice and Rose shall each receive 30%. If there still are livestock on the ranch, they shall also be shared in the same manner and in case there should be any dispute over the question of livestock, we give the parties leave to apply to the High Court to settle any such dispute. On costs, though we have allowed the appeal, we do not think it would be right for us to award costs to anyone.We accordingly make no order as to costs of the appeal.

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Ngetich, In re estate of [2003] KLR 84 (Nambuye J) (A will is not absolute; the court can under section 26 of the Law of Succession Act interfere with it to make provision for those not adequately provided for)

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CASE NO. 321

An objection was filed to the application by the executor of the will of the deceased for grant of probate. The objector claimed that she was not consulted when the petition was filed, and furthermore as the wife of the deceased she was the one entitled to the grant of representation. The court held that the petitioner had approached the court by the wrong procedure, but nevertheless looked at the provisions of the will in determining the dispute. The court was of the view that a will is not absolute, by virtue of section 26 of the Law of Succession Act; where there is contention the court can interfere with the will and make provision out of the estate. The court proceeded to apply section 26, and guided by section 28 of the Act made provision for the beneficiary under the will, the objector and her son

NAMBUYE J: On the court’s assessment of the facts herein it is clear one Ann Kugun Jepkios now deceased was married to the deceased subject to these proceedings under Nandi customary law of woman to woman marriage. It is also clear that dowry was paid for her and this dowry was not refunded. Despite the allegation of the petitioner as to what the deceased told her about her relationship with Ann and despite what DW2 and DW6 alleged to have witnessed of the bad relationship it is clear that for a very long time the deceased never took traditional steps to try to bring that marriage to an end and no reasons were given for her failing to call elders in order to bring to an end her relationship to a cruel woman. Her effort made by filing a divorce cause number 2 of 1995 do not assist much as the same was not determined . It means that as at the time of the death of the deceased subject of these proceedings Ann Kugun was still the lawful customary wife of the deceased. It is on record that she Ann ran away and then come back in 1978 and settled on this land till the time of the deceased’s death. There is no evidence that the deceased at any time made attempts to get Ann out of this land.The evidence that she had no power to do so cannot hold as she could have mobilized her relatives to assist her remove Ann from the land. As regards Nicholas there is no doubt that he is the son of Ann. According to Ann he was born after marriage a fact the petitioner and her witnesses disputed but there is no evidence to show that he was born before the marriage. Even if that were to be taken to be true then there is no evidence that the deceased objected to his presence and the presumption should be that the deceased married the mother and took the mother along with the child. That aside there is no proof that Nicholas was not born in 1975 during the subsistence of the marriage. That being the case he qualifies as a

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son of the deceased. After all the sole purpose of the deceased’s marriage was to raise children through woman to woman marriage and the issue of illegitimacy in relation to the deceased cannot arise as the deceased woman could never turn herself into a man and be a putative father. It is the finding of this court that both the deceased Ann and Nicholas were dependants of the deceased as at the time of her death. They objected to the proceedings because they had been disinherited. The petitioner seeks to shut them out of the inheritance because of: 1.

The bad relationship between the deceased and Ann.

2.

There was an intention of the deceased before she died to transfer the property to the petitioner

3.

There is a will willing the land to her and the plot had allegedly been sold to a 3rd party from whom she retrieved it by refunding the purchase price to the person who had purchased it and by paying all the rates on the same and that it had now been registered in her name by the Nandi County Council.

As regards the bad relationship between Ann Kugun and the deceased this court has already ruled that it did not bring to an end the marriage contracted and it does not operate to injure the rights of late Ann and Nicholas as they did not make the deceased to chase Ann and her son away from the land.

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As regards the intention to transfer the land to the petitioner this has been proved by production of exhibits 7, 8, 18 and 19. It is on record that the process was not completed because the late Ann filed Kapsabet SRMCC 152/94 and blocked the transfer since that process was blocked and it was not completed it remains in law an incomplete gift which the law cannot move to perfect it. The petitioner has to fall back on the will exhibit D1. This court has been urged to disregard the same for the reasons given. However this court finds that the evidence of DW4 and DW7 rules out the possibility of an irregularity on the part of the said witnesses. The only thing which the court finds not to have been taken interest in the same is the identity of the person who brought her in DW4’s office in order to determine a link to the petitioner or not. In the absence of the identity of this person this court ids not in a position to rule whether the decision to write a will was voluntary or induced in view of the age of the deceased who could be easily manipulated by her denial of being manipulated made to DW4 notwithstanding. All the same there is a valid will exhibit D1 and this court rules that the same is a valid will. Having ruled so the next question is to determine whether it has been properly presented to this court for proving of the same. Counsel for the objector argued that that it was not and therefore it should be ignored. As noted earlier at the start of the judgement the petitioner filed form P and A 80 which is filed for letters of administration intestate. It is on record that the parties filed a consent substituting form P and A 78 for form P and A 80. Counsel for the objector has submitted that there is no procedure for substitution. I have perused the provision of section 53(a), (b) of the Law of Succession Act and I agree indeed they provide for distinct modes of presenting application for letters of administration with will annexed and that of intestacy. I have also perused rule 13 of the Probate and Administration Rules which lays down the procedure to be followed in the event of probate being applied for with will annexed. It was also to be accompanied with an affidavit in from No 4 or 6 giving

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the details of the form of the will the names and addresses of the execution and the names and addresses of the witnesses as well and other details as required by rule 7. Is evidently clear that this rule was not complied with. Counsel also raised issue with the substitution saying that the law provides for an amendment and not substitution rule 14(1) of the Probate and Administration Rules provides that an amendment be made by filing of form 62. Form 62 was not filed in this court in compliance of that rule and it follows that the substitution order made by this court following consent between the parties was erroneous and it cannot hold. It follows that what the court is dealing with is intestacy. In an intestacy the court has to determine the beneficiaries who are: 1.

Late Ann Kugun

2.

Nicholas Kipkosgei

3.

Mary Cheboo

The objector and the petitioner. Ann is now deceased and this court has been urged to consider the interests of her estate as well. This court has perused the record and finds that there are letters of administration ad colligenda bona to the estate of the deceased and so it is proper that the late Ann’s interests be catered for. The only observation I make in respect of the same is that the interests of the late Ann and that of Nicholas were joint and so they will be treated as one more so when it is only Nicholas who stands to benefit from both sides. Mary Cheboo the petitioner defends her own rights. The next thing to be identified is the assets of the deceased namely Nandi/ Chamase/678 comprising of 23 acres and plot Number 4 at Kibigong trading centre. There is no dispute over that.

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The next issue to be determined is the eligibility to inherit of the beneficiaries. This court has already ruled that Nicholas is eligible to inherit and also Mary Cheboo because of the will.The fact that a wrong procedure has been followed to present it to the court does not mean that it has to be ignored. It has to be looked at. When it is so looked at the court has to decide whether the same is to be upheld. Counsel for the objector submitted that it is vague but I find no vagueness in it. It states clearly what was being given out and to whom. Section 26 of the Law of Succession Act (Chapter 160) Laws of Kenya stipulates that a will is not absolute where there is contention the court can interfere and make provision for a dependant left out of inheritance. In exercising those powers given under section 26 of the Act the court has to bear in mind the provisions of section 28 of the Act which are: 1.

The nature and amount of the deceased’s property.

2.

Any past, present or future capital or income from any source of the dependant.

3.

The existing and future means and needs of the dependant.

4.

Whether the deceased had made any advancement or other gift to the dependant during his life time.

5.

The conduct of the dependant in relation to the deceased.

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6.

The situation and circumstances of the deceased’s other dependants and the beneficiaries under any will.

7.

The general circumstances of the case including so far as can be ascertained the testation reasons for not making provision of the dependant.

I have considered all the relevant factors herein, the evidence in totality, the need of each side, the law and doing the best I can distribute the deceased’s estate as hereunder: 1.

Plot Number 4 Kibgong trading centre to be shared equally between (a)

Mary Cheboo

(b)

Nicholas Kipkosgei Kogo

2.

It was noted by production or receipts that the petitioner paid rates for the centre plot totalling KShs 11 875-00. Nicholas Kipkosgei Kogo is to refund half of this money to Mary Cheboo being KShs 5 937-50 within 45 days from the date of judgement.

3.

As regards Nandi/Chemase/678 comprising 23 acres. It is evident that Mary Cheboo the petitioner has other properties of her own and she also used to assist the deceased substantialy. However it is also to be borne in mind that Nicholas Kipkosgei has no other property to sustain him. The said property is shared out as follows : (a)

Nicholas Kipkosgei Kogo 10 acres of land

(b)

Mary Cheboo Kimnyiget 10 acres of land.

4.

Each party to bear his own costs.

5.

To give to the above the grant herein intestate is to be issued to 1.

Mary Cheboo Kimnyiget

2.

Nicholas Kipkosgei Kogo.

***

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19.2 CATEGORIES

OF

APPLICANTS

The dependency provisions are available to the members of the deceased family detailed in section 29 of the Law of Succession Act. Widows and children are entitled without proof of dependency, while the rest must establish that they were dependent on the deceased person immediately before his death. The provision says as follows: ‘29.

For the purposes of this part, ‘dependant’ means: (a)

the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(b)

such of the deceased’s parents, stepparents, grandparents, grandchildren, stepchildren, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and

(c)

Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.’

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Cases numbers 322 and 323 are on the legal position obtaining before the Law of Succession Act came into operation. Cases number 324, 325, 326, 327, 328, 329, 330, 331 and 332 are on the persons who are entitled to apply as dependants. Re Ruenji’s Estate [1977] KLR 21 (Sachdeva J) (Women married under customary law by a man who had previously married under statute are not wives and their children are not children for the purpose of succession, and they are therefore not entitled to a share in the estate of the deceased)

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CASE NO. 322

The deceased contracted a statutory marriage, and thereafter took other wives under customary law. Following his death, the Public Trustee asked the court for directions as to the status of the women married under customary law, during the pendency of the statutory marriage, and on their rights to the estate of the deceased. It was held that in view of section 37 of the Marriage Act, which barred other marriages during the currency of the statutory marriage, and of the fact that there was no decree of divorce; the latter marriages were null, and the women so married were not wives and their children were consequently not children for the purpose of succession.

SACHDEVA J: It is clear that a marriage under the African Christian Marriage and Divorce Act is meant to be a Christian marriage (see section 3) and that parties become legally bound to each other as man and wife so long as both of them shall live, and that their marriage cannot be dissolved during their lifetime except by a valid judgement of divorce, and that if either of them (before the death of the other) should illegally contract another marriage while their marriage remained undissolved, the offender would be guilty of bigamy, and liable to punishment for that offence (see section 9(3)). Thus it is perfectly obvious that a marriage under the African Christian Marriage and Divorce Act is monogamous in nature and neither spouse can legally remarry during the lifetime of the other spouse without obtaining a decree of divorce from a court of competent jurisdiction. It is further apparent that the deceased had not divorced Loise Murugi Mbiri during his lifetime, and that, consequently, any subsequent marriage would be illegal. Furthermore, by virtue of section 4 of the African Christian Marriage and Divorce Act the provisions of the Marriage Act, except as otherwise provided, apply to all marriages under the African Christian Marriage and Divorce Act. Provisions similar to section 9(3) of the last-mentioned Act (referred to hereinbefore) are contained in section 29 of the Marriage Act. by virtue of section 37 of the Marriage Act, a person who is married under that Act or whose marriage is declared by that Act to be valid (as is the case of marriages under the African Christian Marriage and Divorce Act) shall be incapable during the continuance of such marriage of contracting a valid marriage

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under any native law or custom. Furthermore, under section 50 of the Marriage Act, any person who, during the continuance of a marriage under that Act, contracts a marriage in accordance with native law or custom is guilty of an offence and liable to imprisonment up to five years. ... having carefully considered the legal position, I rule that any marriages entered into by the deceased subsequent to his marriage with Loise Murugi Mbire under the African Christian Marriage and Divorce Act are illegal and null and void. Accordingly, I hold that Mary Waithira and Mary Wanjohi are not the widows of the deceased and consequently not entitled to any inheritance from the estate of the deceased. I further hold that children of any such subsequent unions are not legitimate and consequently they are also not entitled to any inheritance from the estate of the deceased. Re Ogola’s Estate (1978) KLR 18 (Simpson J) (A man married under statute is statute-barred from contracting other marriages during the pendency of the statutory marriage, and any marriages so contracted are null and void, and the women so married are not entitled, together with their children, to inherit on the intestacy of the deceased man)

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CASE NO. 323

The deceased had married under statute, and subsequently took another wife under customary law. When he died the Public Trustee applied to court for a decision on the rightful heirs of the deceased and the respective shares of such heirs out of the intestate estate of the deceased. It was then that the deceased was barred by section 37 of the Marriage Act from contracting other marriages during the pendency of the statutory marriage. As a consequence the second marriage of the deceased under customary law was null and void, and the second wife, as a result, could not inherit, together with her children, on the intestacy of the deceased.

SIMPSON J: The provisions of the Marriage Act apply (except as otherwise provided) to all marriages celebrated under the African Christian Marriage and Divorce Act. Section 37 of the Marriage Act, so far as relevant, provides: ‘Any person who is married under this Act ... shall be incapable of contracting a valid marriage under any native law or custom ... ’

Section 3(2) of the Judicature Act, which sets out the circumstances in which courts shall be guided by African customary law, contains the qualification ‘so far as it is ... not ... inconsistent with any written law.’ The foregoing provision of the Marriage Act therefore overrides customary law. If a man who was married under the Act purports to marry another wife under customary law it is not a valid marriage under customary law, or otherwise. If it is not a valid customary marriage the woman does not become his wife and cannot therefore inherit in that capacity.

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... with respect, I entirely agree with the decision of Sachdeva J.To decide otherwise would be to condone the offence of bigamy. An African in Kenya is not obliged to marry under the Marriage Act or the African Christian Marriage and Divorce Act; but if he chooses to do so, he is choosing the Christian way of life which recognises one wife only and, on his death, removes the widow and children from the ambit of tribal customs affecting cohabitation and guardianship. Mr Kithyoma for the Public Trustee submitted that, should Bona be found not to have been married to the deceased, in order to discourage such litigation, she should be ordered to pay costs of the deceased’s wife and the Public Trustee. Having regard to the circumstances of this case I think it reasonable and sufficiently discouraging to order Bona to pay her own costs and those of the Public Trustee. The costs of Gladys will come out of the estate. In the Matter of the Estate of Reuben Nzioka Mutua (deceased) Nairobi High Court probate and administration number 843 of 1986 (Aluoch J) (Section 3(5) of the Law of Succession Act caters for women married under customary law by men who had previously or subsequently contracted statutory marriages, and who have been abandoned or neglected, and such women are entitled to be provided for out of the estate of the deceased)

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CASE NO. 324

This action was brought under section 26 of the Law of Succession Act by a woman who had married a man under customary law, who had previously married under statute, the African Christian Marriage and Divorce Act, and that statutory marriage was still subsisting. The man died testate, and in his will he left his entire estate to his statutory wife, to the total exclusion of the customary law wife and her children. The customary law wife sought reasonable provision for herself and her children. The matter turned on whether she had acquired the status of a wife by virtue of section 3(5) of the Law of Succession Act and in view of section 37 of the Marriage Act. The other issue was whether her children were entitled to inherit the estate of the man. It was held that she was not a wife since by virtue of section 37 of the Marriage Act the man had no capacity to marry her on account of the subsisting statutory marriage, and that section 3(5) of the Law of Succession Act could not help her case. The court however found that her children were children within the meaning of section 3(2) of the Law of Succession Act and section 26 was invoked to make provision for them out of the estate of the deceased.

ALUOCH J: Having said the above, it is important, therefore, to decide whether the deceased was competent to contract ‘a legally valid marriage’ with Josephine under Kamba Customary Law in March 1980.

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The provision of section 4 of the African Christian Marriage and Divorce Act, state: ‘Except as otherwise provided in this Act, the portions of the Marriage Act shall apply to all marriages celebrated under this Act.’

Section 37 of the Marriage Act (Chapter 150) on the other hand provides: ‘Any person who is married under this Act…shall be incapable during the continuance of such marriage from contracting a valid marriage under any native law or custom.’

In my reading of the provision of the African Christian Marriage and Divorce Act, I have not found any specific provision excluding from the Act the application of this section 37 of the Marriage Act, or my view, can the exclusion of that section is inferred. The inevitable consequence therefore, is that whether or not Josephine contracted a customary marriage with the deceased he the deceased was in terms of section 37 aforesaid incapable of contracting such a marriage. This being so I find that the deceased could not have in law been married to Josephine Mumbua Mulili in March 1980, or at any time, under Kamba Customary Law or any other law. During the hearing of the cause, a lot of evidence was adduced by Josephine herself and her witnesses who included the deceased’s father and brother concerning ceremonies pertaining to marriage under Kamba Customary Law. I have not found it necessary to consider this evidence, because it is not relevant under these circumstances.

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Part 2 of issue No.1 of the agreed issues had sought to know if the court could presume a marriage between the deceased and Josephine Mumbua Mulili. The two learned counsel supplied me with several decided cases, all of which I have read and found most useful.The leading authority on this topic was the case of Hotensia Wanjiku Yawe vs. Public Trustee where the Court of Appeal for Eastern Africa, (as it then was) recognised and approved the principle of presumption of marriage, in a situation where the deceased had declared to another that the appellant, Yawe was his wife by general repute. Also there had been long cohabitation as man and wife. There was also evidence of performance of marriage ceremonies and during the period of cohabitation the appellant bore the deceased four children. In that case the court held, ‘Long cohabitation as man and wife gives rise to a presumption of marriage in favour of the appellant. Only cogent evidence can rebut such a presumption.’

I have also considered the most recent decision of the Kenya Court of Appeal on this issue of presumption of marriage. This is the case of Mary Njoki vs. John Kinyanjui Mutheru and others; Civil Appeal Number 71 of 1984 … In a very considered judgement which was decided by a majority bench, Nyarangi JA said the following, ‘In my judgement, before a presumption of marriage can arise, a party needs to establish long cohabitation and acts of general repute…To sum it up, there has to be evidence that the long cohabitation is not mere friendship between a man and a woman, that she is not a concubine but that the cohabitation has crystallised into a marriage and that it is safe to presume that there is a marriage.’

The two decisions above being Court of Appeal decisions are binding on my court.

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… But in this case, even without considering evidence of ‘long cohabitation’ and ‘acts of general repute,’ I find that I cannot presume a marriage between the deceased and Josephine because of my earlier finding that in accordance with section 37 of the Marriage Act, the deceased was incapable in law of contracting a marriage, whether customary or statute. That being so it follows that no marriage can be presumed between them, because the law prohibits it. Even the two decisions of the Court of Appeal already quoted cannot come to Josephine’s aid because in those cases the court was not dealing with a situation such as the one we have in this case a situation where the deceased man was already married under statute, and the marriage subsisted upto the date of death, yet a woman sought to have the court either declare her a wife under customary law, or presume marriage. This can therefore be easily distinguished from the two Court of Appeal authorities. … Despite the legal provisions as I have already talked of as making the deceased incapable of contracting a legally recognised marriage under any law with Josephine or any woman for that matter Mr Situma, relying on sections 3, 5 of the Law of Succession Act, submitted that this sub-section allowed Josephine to inherit from the deceased’s estate despite the deceased having contracted a monogamous marriage with Theresiah, which marriage was subsisting at the time the deceased died. That Josephine’s subsequent marriage to the deceased qualified her as a wife who was, therefore, entitled to inherit. The sub-section in question was an amendment to the Succession Act, which was brought in by Act Number 10 of 1981. The amendment reads:

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‘Notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is where her husband has contracted a previous or subsequent monogamous marriage to another woman nevertheless a wife for the purpose of the Act, and in particular sections 29 and 40 thereof and her children are accordingly, children within the meaning of the Act.’

With respect to Mr Situma, I do not agree with his interpretation of the amendment. I say so because, according to the evidence I have already considered in this case, my finding is that the deceased was in law not capable of marrying Josephine or any woman for that matter. Similarly, no marriage in law could be presumed between the deceased and Josephine. with the result that no marriage existed or occurred between them. That being so, Josephine, and indeed any woman in her same circumstances cannot be the woman the amendment is talking about because the amendment talks of ‘a woman married under a system of law which permits polygamy.’ According to my understanding of this amendment, a woman relying on it must have a marriage which is valid under the particular customary law. In Josephine’s case she is coming under the amendment on the basis that her marriage to the deceased was valid under Kamba Customary Law, yet have already found that the deceased was not capable of contracting a marriage, under Kamba Customary Law or any other law. I find the operative words of the amendment to be, ‘a woman married under a system of law which permits polygamy…’These are the words which give a woman a ticket to seek refuge under the amendment to Section 3 of the Succession Act.

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… I see this amendment as having been brought in to cater for women married under customary law who were either neglected or abandoned by their husbands during his lifetime. To my mind, this amendment cannot be interpreted any other way, or least of all Mr Situma’s way because to do so would be to open ‘a Pandora’s Box,’ so to speak, and would render useless any marriages under statute, if upon death of a husband any woman who believed the deceased ‘married her was allowed under the Succession Act to inherit from his estate. I do not consider that that is what the legislature intended by this amendment. Mr Situma in his submissions underlined the word ‘previous’ used in the amendment, thus stressing the fact that according to him Theresiah’s monogamous marriage to the deceased could not bar Josephine from being considered a ‘wife,’ for the purpose of inheritance under the Succession Act. From my reading of the amendment I would say that the words used in this amendment are meant to make it comprehensive, otherwise the meaning of it which is important is what I have already given it. … All in all, and for the reasons on record I find that Josephine was not legally married to the deceased in March 1980, or at all, either under Kamba Customary Law, or any other law. Again, for the reasons which I have considered, a Kamba Customary Law cannot be presumed, however, from the evidence on record, I am prepared to find that there was a relationship between Josephine and the deceased. This relationship, in my considered opinion did not amount to a marriage in law. The relationship could be described as ‘adulterous’ in Biblical terms, or in law, Josephine could be best described as having been the deceased’s ‘concubine,’ which description did not bestore upon her the status of a wife – during the deceased’s lifetime, and a ‘widow,’ upon the deceased’s death.

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… I now want to consider whether the three named minor applicants were the deceased’s children … Section 3 of the Succession Act defines ‘child.’ It says: ‘Reference in this Act to ‘child’ or ‘children,’ shall, include, in relation to a female person, child born to her out of wedlock, and in relation to a male person, a child whom he has expressly recognised or infact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.’

Section 29 on the other hand in defining dependant says of a child, ‘… Children of the deceased whether or not maintained by him immediately prior to his death …’

…I have considered the totality of all the evidence adduced in this case, and I am satisfied, on a balance of probabilities that these three children fall within the definition given in Section 3 of the Act, as far as the deceased is concerned. I find that there is sufficient evidence from which I can safely find that those were the deceased’s children, within the meaning of the Act.

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In the Matter of the Estate of Stephen Ng’ang’a Gathiru (Deceased) Nairobi High Court succession cause number 500 of 1992 (Waweru J) (The only persons who can benefit as dependants of the deceased are his wife or former wife and his children, and the other persons who fall within the definition of dependant made in section 29 of the Law of Succession Act) CASE NO. 325

A woman brought an application under section 26 of the Law of Succession Act for reasonable provision out of the estate of the deceased for her own benefit and that of her children. The court found that she was neither a wife or former wife of the deceased within the meaning of section 29 of the Act, and consequently she could not benefit from the provisions of section 26 of the Law of Succession Act, she and her children fathered by another man, but her child with the deceased was a dependant within the meaning of section 29 of the Law of Succession Act, and the court ordered provision for the child out of the estate of the deceased.

WAWERU J:

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This is an application (summons dated 20 September 2002) under section 26 of the Law of Succession Act, Chapter 160 (the Act) for reasonable provision to be made out of the deceased’s net estate. It is brought by Edith Wairimu Ng’ang’a (hereinafter called the first applicant) on her own behalf and also on behalf of her minor children, Hannah Njeri Ng’ang’a and Moses Muiruri Ng’ang’a. the second applicant, Ruth Nyakio Gathiru, is the deceased’s mother. By a ruling of this court (Hon Githinji J) apparently delivered on 25 September, 1996 the first applicant was adjudged not to be a wife, or indeed former wife, of the deceased. She was therefore not a dependant as defined in section 26 of the Act and cannot bring an application for dependency under section 26 of the Act. By the testimony of the first applicant before the aforesaid learned judge her first child, Njeri, was sired by another man, not the deceased. That child therefore, not being the deceased’s child, is not his dependant as defined under section 29 aforesaid. Again from the evidence placed before the same judge the first applicant’s second child, Moses, was sired by the deceased and is therefore his dependant as defined under section 29 aforesaid.The second applicant, being the deceased’s mother, is likewise his dependant as so defined. Both are entitled to bring this application. In the circumstances of the case I consider that both Moses and the second applicant will be best provided for when the court considers distribution of the estate. I note that an application to confirm the grant has already been filed (amended summons dated 29 May 2002). I will order that the administratrix of the estate, Hannah Wambui Ng’ang’a, do file a supplementary affidavit in which she shall propose what Moses and the second applicant should get.That supplementary affidavit shall be served upon the

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applicants who shall be at liberty to file an affidavit of protest in which they may make counter-proposals as to what Moses and the second applicant should get. In the event therefore the application for dependency so far as it relates to the first applicant and her child Hannah Njeri Ng’ang’a is hereby dismissed with no order as to costs. The application as far as it relates to the 1st applicant second child and the second applicant is hereby allowed. But what reasonable provision ought to be made for each of them shall be considered when the court shall consider confirmation of the grant. In the Matter of the Estate of Sadhu Singh Hunjan (deceased) Nairobi High Court succession cause number 107 1994 (Kuloba J) (A testator enjoys freedom of testation under section 5 of the Law of Succession Act, and a will made in exercise of such freedom can only be interfered with in cases where property is disposed of in manner which hurts the dependants)

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CASE NO. 326

A daughter-in-law sought reasonable provision from the estate of her deceased husband’s father for herself and her children. She alleged that she and her children had not been reasonably provided for from the estate of the deceased. It transpired that in his will the father-in-law had provided for his son, the husband of the applicant. The court held that since the applicant’s husband had been provided for in his father’s will, and that he took up his share there was no legal basis upon which she could claim provision from the father-in-law’s estate. The court was of the view that the deceased had adequately provided for those who were dependent on him, but it would appear the applicant’s fortunes changed after she decided to relocate to Canada, a factor that is of no relevance to the issues at hand.

KULOBA J: The question for decision is whether the court should make provision for the applicant and her three children; and if so, to what extent. The decision on the first point is that no provision should be made for any of these applicants. My reasons for this decision are these. The deceased made a will. At the time of making the will his late son was alive, living with him. The son had a wife, the present applicant. The said wife was living with them. Although she says that she took care of the deceased while he lived, there is no evidence of her doing so, and in what way. As a matter of fact, the respondents who were daughters of the deceased contradict the applicant on that allegation. They say, instead, that she mistreated the deceased and abused him. They say that they are the ones who cared for the deceased. Since the deceased was living with the applicant and her late husband, if she was good to the deceased, there is no reason given why he should not have provided for

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her.The deceased was not shown to have been a bad man in any way. So, he must have known good reasons why he neither gave the applicant any gifts inter vivos, or provided for her in his will. As it comes out from the affidavits and the arguments, the deceased and his late son (husband of the applicant) were shareholders and directors in a business company. And the deceased made provision for his son in the will. The late husband of the applicant survived the deceased, and went on to run the business for about one year before he also died. It is probable that the deceased, when he provided for his son, bore in mind the fact that he was dying leaving the business in the hands of his surviving son, and that business would cater for the family of his late son. And, indeed, the deceased went ahead and made provision for his late son. At that time, it can only be expected that the deceased would, in those circumstances, concern himself with making reasonable provision for his daughters also. It is alleged, but not proved that after the deceased died, the applicant’s late husband suffered ill-health and so he could not maintain the business and that it collapsed on that account one year later. But if that was true, this turn of events was not in the contemplation of the deceased when he made his will. with a son who was at the time in business, it was not to be expected that the deceased would look over his son’s shoulders with pessimism about the son’s business abilities and so provide for grandchildren and a daughter-in-law as if he did not trust the abilities of his son to look after his own wife and children.

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The deceased did not altogether ignore his late son when making provision in the will for his children. He provided for the son, bearing in mind that he had also to provide for his two daughters,. He did not interfere with his late son’s shareholding in the company. Motor vehicles, too, in fact, with the estate of the late son. If it is true as the applicant contends, that the business subsequently collapsed because of the ill-health of her late husband, it would point to this: that it was the deceased who, during his lifetime, had sustained the existence of the business. A person on whom the success of the business could depend, could not have needed the care and help of the applicant daughter-in-law. It suggests his independence and selfreliance; and it would contradict the applicant’s allegation that she took care of him. On the contrary, the deceased seemed to take care of himself. His son being a businessman, and not shown to have been an irresponsible person, except for alleged (if accepted) later-time ill-health, must surely have taken care of his own wife and three small children.There is no evidence that the late son’s matrimonial and parental responsibilities were abdicated by him while he lived, and passed onto his father (the deceased). The applicant and the minor children have not shown their dependence on the deceased. Under section 5 of the Law of Succession Act (Chapter 160), there is testamentary freedom to dispose of one’s own property by will in any manner he sees best, subject only to this, that the freedom be exercised with a reasonable sense of responsibility so as not unreasonably to hurt anyone for whom the testator was responsible during his lifetime unless, of course, there are good reasons for acting out of reasonable expectations,. according to the Court of Appeal’s decision in the case of Elizabeth Kamene Ndolo v

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George Matata Ndolo, Court of Appeal at Nairobi, Civil Appeal Number 128 of 1995 (10 May 1996), a testator’s reasonable preferences should normally be respected, e.g. he may give a reasonably larger share of his estate to his ‘preferred wife.’ Once a reasonable provision for beneficiaries and dependants has been made in a will, such provision must be upheld, and a mere subsequent change of fortunes rendering a dependant or beneficiary to be a destitute, but which change would not be foreseen by the testator at the time of the making of the will, will not be a good reason to re adjust a testator’s will and provision. In the instant case the alleged destitution of the applicant and her children, subsequent to the death of the deceased, was not proved, it was not reasonably foreseeable by the testator when he was making provision for his late son who was the father of the minor children and the husband of the applicant. The deceased made reasonable provision for his late son; it should reasonably be expected that his late son was to make reasonable provision for his wife and own children as his own late father had done for him and his sisters; the deceased was not bound to venture into horoscopy about and the while of his progeny, including his grandchildren, and what might befall them in foreign lands to which they might emigrate after his death, and make contingent provision in the event of unknown and unanticipated misfortunes along their stairs of life.

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The will of the departed must be honoured as much as it is reasonably possible. Readjustments of the wishes of the dead, by the living, must be spared for only eccentric and unreasonably harmful testators and weird wills. But in matters of normal preferences for certain beneficiaries or dependants, may be for their special goodness to the testator, the court should not freely intervene to alter them. The present one is not the kind of will the court should ‘revise’ and make provision for persons who have not furnished enough or any evidence of their dependency, and whose immediate parent and husband was reasonably provided for in the will having regard for his continuing as the sole director and shareholder in the company left him after the deceased died, and a daughter-in-law and grandchildren whose alleged subsequent destitute condition (not proved) was not due to unreasonable lack of provision for them in the will and would not be reasonably foreseeable by the testator. Those are my reasons for declining to invoke section 26 of the Law of Succession Act to make any provision for the applicants. For these same reasons, I say in relation to the second part of the question, that there will be no provision dehors the will to any extent. It is for these reasons, that this application fails, and it is dismissed. but for reasons that the respondents are aunts to the minor children of their late brother, and they were the sister-in-law to the applicant who was wife of their late brother, this kinship bond should not be tainted by letting any of the parties partake of the sour-cream of costs. So, each party shall bear its own costs of this application. It is so ordered.

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Irene Njeri Macharia vs. Margaret Wairimu Njomo and another Nairobi Court of Appeal civil appeal number 139 of 1994 (Omolo and Tunoi JJA, and Bosire AJA) (Section 3(5) of the Law of Succession Act is meant to protect women who marry men, under customary law, who are already married to or who subsequently marry another woman under statute. The woman married under customary law is regarded as a wife for succession purposes, notwithstanding that by virtue of section 37 of the Marriage Act the man had no capacity to marry her)

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CASE NO. 327

The deceased had contracted a statutory marriage with a woman from who he was to be legally separated subsequently. He began cohabitation with another, although no evidence was led to show he ever underwent a customary law ceremony of marriage with her. They had a child. He died intestate. The woman he cohabited with prior to his death did not seek a share in the estate, but she made an application on behalf of her child with the deceased. The court found that the child was a child for succession purposes within the meaning of section 3(2) of the Law of Succession Act; she was entitled to a share in the estate of the deceased, who was her father. It was also observed that the woman could have sought to bring herself within section 3(5) of the Act as a customary law wife if she had led concrete evidence on the nature of her relationship with the deceased. The court noted that section 3(5) was designed to protect women (together with their children) who found themselves married to men who had previously or subsequently contracted statutory marriages.

OMOLO AND TUNOI JJA, AND BOSIRE AJA: The dispute in the superior court was how the property left behind by the deceased was to be shared out between the appellant and the infant Jackline. As we have said, counsel on both sides had agreed, apparently on the authority of Re Ruenji’s Estate [1977] KLR 21, Re Ogola’s Estate [1978] KLR 18 and the precedent-setting decision in In the Matter of the Estate of Reuben Nzioka Mutua, Probate and Administration Cause number 843 of 1986 (unreported), that for the purposes of the Law of Succession Act, Chapter 160 Laws of Kenya, the first respondent was not a wife of the deceased and was not entitled to inherit anything from the estate of the deceased. We think that the view that was held by both counsel and apparently by the superior court, that the first respondent was not a wife for the purposes of the Law of Succession Act was erroneous and as the matter is obviously of great importance to the public, we have decided to take this opportunity to deal with it. The decisions in Re Ruenji’s Estate and Re Ogola’s Estate were, at the time they were passed, namely 14 February, 1977 and 6 February, 1978, respectively, correctly reflected the position of the law as it then stood. The Law of Succession Act, though

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enacted by Parliament in 1972, did not become operational until 1 July 1981 vide Legal Notice Number 93 of 1981. So that in 1977 and 1978, the courts had to rely solely on section 37 of the Marriage Act in order to determine whether the deceased persons (Ruenji in Re Ruenji’s Estate and Ogola in Re Ogola’s Estate) were capable of having other wives in addition to their statutory wives .The courts correctly held that Ruenji and Ogola were incapable of contracting other marriages during the existence of their statutory marriages and that accordingly the two women who claimed to be entitled to a share in the men’s estates were not wives in law and could not inherit.We repeat that those decisions were correct at the times they were made. But in 1981, the male-dominated Parliament intervened and added paragraph (5) to section 3 of the Law of Succession Act. Paragraph 5 of section 3 added by Act Number 10 of 1981 provided as follows: ‘Notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act and in particular sections 29 and 40 thereof, and her children are accordingly children within the meaning of this Act.’

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Our understanding of this provision is that it was intended to reverse the position taken by the courts in the cases of Re Ruenji’s Estate [1977] KLR 21 and Re Ogola’s Estate [1978] KLR 18.The section was, however directly in issue in 1986 in the case of In the Matter of the Estate of Reuben Nzioka Mutua (deceased) to which we have referred earlier.The relevant facts in In the Matter of the Estate of Reuben Nzioka Mutua were that on 2 September 1961, at the PCEA Church in Nyeri, he married Theresiah Mumbua Mutua and that marriage was obviously under the African Christian Marriage and Divorce Act. That marriage was never dissolved until 26 May 1986 when Mutua died in a road traffic accident. There were seven children of the marriage. But in March 1980, Mutua, once again being true to his African manhood, purported to marry Josephine Mumbua Mutua and that marriage was said to have been conducted in accordance with Kamba law and custom. There were three children out of that union,. Mutua died testate but in his will, he did not provide for Josephine and her children . Josephine, on her own behalf and on behalf of her three children, applied to the High Court under section 26 of the Law of Succession Act, for reasonable provisions to be made out of Mutua’s estate. in a careful and detailed judgement from which no appeal was apparently preferred, Lady Justice Joyce Aluoch held that Josephine was not a wife for the purposes of the Law of Succession Act and was not entitled to receive anything from Mutua’s estate. but she held further that Josephine’s three children were Mutua’s dependants and were entitled to reasonable provision for their maintenance out of Mutua’s estate. dealing specifically with section 3(5) of the Act which we have set out elsewhere in this judgement, the learned judge held as follows:‘I find the operative words of the amendment to be “a woman married under system of law which permits polygamy ... ” Those are the words which give a woman a ticket to seek refuge under the amendment to section 3 of the Succession Act. I have read the provisions of the amendment carefully and my conclusion is that Mr Situma misunderstood them completely. My understanding of the amendment is that it talks of or envisages a situation where for example, a man whom I will refer to as A married a woman B under customary law and that marriage is valid and recognised under that custom. Subsequently he meets

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another lady C and the two contract a marriage under statute . upon A’s death and for purposes of inheritance to A’s estate, B is considered a wife by the Succession Act, despite the fact that C is the one with a marriage certificate, having been married under statute law. the Succession Act will consider B a wife and, therefore, is entitled to inherit from the estate of the deceased.The amendment will come to B’s aid because she will be ‘a woman married under a system of law which permits polygamy..’ I see this amendment as having been brought in to cater for women married under customary law who were either neglected or abandoned by their husbands during his lifetime. To my mind, this amendment cannot be interpreted any other way, or least of all Mr Situma’s way because to do so would be to open ‘a Pandora’s box,’ so to speak, and would render useless any marriages under statute, if upon death of a husband any woman who believed the deceased ‘married’ her was allowed under the Succession Act to inherit from his estate. I do not consider that that is what the legislature intended by this amendment.’

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We find it somewhat difficult to appreciate the learned judge’s reasoning in this extract . to use her own example of a man A marrying a woman B under customary law, if it be taken that the marriage between A and B is valid and recognised under a particular customary law, A has lost the capacity to contract a statutory marriage under either Chapter 150 or Chapter 151. In the example given by the judge it is the purported marriage of A and C which would be invalid and all the marriage certificates in the world could never validate it. A valid customary is never dissolved by a statutory marriage and if it came to the question of who, as between B and C, is entitled to inherit from the estate of A, the obvious answer even before the passing of the amendment under consideration, would be B unless it be the law that a statutory marriage can never be declared to be invalid even when it is foisted or superimposed upon a subsisting valid customary law marriage. B would be entitled to the estate of A not because of section 3(5) but because she is the only lawful widow of A. C, on the other hand could not call in her aid section 3(5) because the statute under which she and A purported to marry is a ‘system of law which does not permit polygamy.’ Our understanding of section 3(5) of the Act is that it was expressly intended to cater for women who find themselves in the situation in which Josephine found herself. Mutua, previous to his union with Josephine, had contracted a statutory marriage which remained undissolved up to the time of his death. But subsequent to that marriage, he purported to marry Josephine under Kamba customary law. Kamba customary law recognises polygamy and Josephine was telling the court that she was a woman married under a system which recognises polygamy. Parliament, in its wisdom, and whatever it might have intended to do, provided that:‘Notwithstanding the provisions of section 37 of the Marriage Act ... ’

Josephine was, nevertheless, a wife for the purposes of the Law of Succession Act, and in particular sections 29 and 40 of the Act. We have unhesitatingly come to the conclusion that Mutua’s case was wrongly decided and must be treated as not correctly stating the position at law. In the appeal before us, we have said we do not know whether the first respondent and the deceased ever went through any ceremony of marriage; we are not certain if the concept of a presumed marriage could be applied to their circumstances. In the absence of such evidence, we are unable to say whether she could qualify as a ‘wife’ under the provisions of section 3(5) of the Law of Succession Act. It must not be forgotten that in Mutua’s case, Josephine went to very great lengths to prove that

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Mutua had married her under Kamba customary law. The learned judge in Mutua’s case was apparently of the very clear view that even if that evidence were to be treated as true, it did not matter because under section 37 of the Marriage Act, Mutua lacked the capacity to contract another marriage during the subsistence of the statutory marriage. Probably because of the decision I Mutua’s, the first respondent in the appeal before us, did not place any evidence before Mr Justice Mbito to explain what sort of marriage she had contracted with the deceased. In the Matter of the Estate of Carey Kihagi Muriuki (Deceased) Nairobi High Court succession cause number 765 of 1994 (Koome J) (Reference to child or children in Part III of the Law of Succession Act does not refer to the minority of the applicants, but to the relationship between the applicants and the deceased person) CASE NO. 328

A person aged 23 at the time of the hearing of an application for reasonable provision, sought provision out of the estate of his deceased intestate father. The administratrix of the estate argued that the applicant was not a child, but an adult and he could not therefore claim from the estate of the deceased as a dependent child, since his dependency ceased after he attained eighteen. It was held that the reference to child or children in Part III of the Law of Succession Act does not refer to the minority of the applicants but to their relationship with the deceased.

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KOOME J: According to the ruling the learned judge held inter alia ‘I am satisfied that Kihagi Mathenge Muriuki is a dependant of the deceased under section 29(a) LSA and does not even have to show that he was being maintained by the deceased prior to his death. I postpone the assessment of what is reasonable provision for him, until parties file supplementary affidavits particularly ascertaining the nature, situation and amount of deceased estate, liabilities and needs of all beneficiaries and all other relevant matters.’

Apparently when this ruling was delivered on 3 March 2000 Kihagi Mathenge Muriuki who was declared dependent had by then already attained the said age of majority. I have perused the proceedings and it is clear when the second objector herein started giving evidence on 16 October 1996 he was sixteen years old not to mention that when the proceedings were filed he was about 14 years. It is a pity that this applicant has aged in the process of seeking for, and trying to claim for his rights. He aged while in the corridors of justice and now the court is being asked to lock him out on account of his age. I believe he has also lost opportunities in life, either to better his education or otherwise and who is to compensate him for his losses? It is indeed pathetic that he is now being told to abandon his claims on account of his age.

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In my humble opinion the ruling whereby the applicant was declared a dependant is not based on the account of the applicant being of the age of minority.The definition of a dependant under section 29(a), (b) of the LSA groups children of the deceased with wives, parents, brothers and sisters. On what basis would a deceased sister and brother or parents be deemed to be dependants when they are not minors? It is the same analogy I would apply and interpret that the definition of a child under section 29(a) of the LSA is not the one below the age of majority but the child begotten by the deceased, age notwithstanding. In the Matter of the Estate of Ashford Njuguna Nduni (deceased) Nairobi High Court succession cause number 1589 of 1994 (Waweru J) (Reasonable provision does not mean fair distribution of an estate, and a dependant coming under section 26 is not in the same standing as a beneficiary under a will or an heir in intestacy).

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CASE NO. 329

The applicants under section 26 of the Law of Succession Act were the first widow of the deceased and some of her children. They claimed that the deceased had not fairly distributed his estate by his will, which they claimed gave the bulk of the estate to the second widow and her children. The court stated that reasonable provision does not necessarily mean fair distribution, emphasising that the court will not order reasonable provision that exceeds the present and future needs of the dependant. In making provision for the dependants the court considered what they had been given in the deceased’s will, any intervivos gifts and their present circumstances. The court found that the first widow had been adequately provided for, but ordered that she be paid a lump sum of money to develop the property allocated to her under the will. The children were awarded a defined portion of a piece of land forming part of the deceased.

WAWERU J: The tenor of the affidavits sworn in support of the application is that the applicants should get a fair share of the deceased’s estate. But I think this is the wrong approach. ‘reasonable provision,’ as held by Githinji J in the case of Christine Nyagitha Miller v. Alice Miller Thomas and others (In the Estate of Cecil Henry Etherwood Miller, Deceased), Nairobi HC Succession Cause Number 1100 of 1991 (Unreported), is not necessarily fair distribution of the estate. A dependant coming under section 26 of Chapter 160 is not in the same standing as a beneficiary under a will or an heir under the Law. The court will not order reasonable provision that exceeds the present and future needs of the dependant, notwithstanding how rich the estate might be.The

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court’s discretion will not and should not extend to re-writing the deceased’s will in order to fairly or equitably distribute his estate. He had full testamentary freedom to dispose his estate as he wished. The court will not interfere with that freedom only to make reasonable provision for a dependant. I find that the house and the one acre of land, the first applicant has been adequately provided for by the deceased in the Will as far as capital assets are concerned. She has no dependants herself and is no doubt advanced in years. One acre of land in the neighbourhood of Lavington, Nairobi is not a mean asset. But she will need some liquidity in order to develop or start an activity in her land that may provide her with an income for her daily needs. I will order that out of the funds held by the Public Trustee she be paid the sum of KShs 150 000-00.

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I note that the second, third, fourth and fifth applicants have not sworn any affidavit in respect of their personal circumstances. Apart from what is said by their mother in her affidavit sworn in support of the application there is really nothing on record to assist the court in assessing their present and future needs. I do not for a minute believe that they got their daily sustenance from the deceased at the time of his death. They are all grown up women and man, probably with their own families. They appear to be in their 40s and 50s and of good health. I do not believe that they are without income from their own pre-occupations, or that they are entitled to some reasonable provision from his estate. The deceased gave their three sisters each, intervivos, a plot of land as seen elsewhere above. They have not joined their mother and siblings in applying under section 26 of Chapter 160. In particular, I note that the Executor’s own children were not individually and specifically provided for by the deceased in the will. They may have to wait to eventually inherit from their mother. Because of their relative youth they might depend on their mother for a long time to come. I have not been able to find out how many these children are. In his will the deceased says they are ‘a number.’ Doing the best I can with the material placed before me I hold that the reasonable provision that I can order for the second, third, fourth and fifth applicants is that each of them do get one-half (1/2) of an acre of land in LR DAGORETTI/RIRUTA/1512, the same to fall in the undeveloped portions of the parcel.

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In the Matter of the Estate of Samuel Muchiru Githuka (Deceased) Nairobi High Court succession cause number 1903 of 1994 (Kamau J) (The person who qualifies to be a dependant is defined in section 29 of the Law of Succession Act) CASE NO. 330

The objection proceedings to a petition for grant of letters of administration were taken out by a woman who claimed to be a widow of the deceased. The court was invited by the parties to determine whether the woman was a dependant of the deceased. The court held that she was not a dependant of the deceased and therefore she was not entitled to a share in the estate as an heir nor was she entitled to a right to administer the estate. In the court’s opinion she was not a dependant in terms of section 29 of the Law of Succession Act since she was never married to the deceased under any system of law; neither could a marriage be presumed in her favour.84

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KAMAU J: It is not in dispute between the parties herein that the question that in the main comes for determination by this court was whether the objector was a dependant of the deceased. In determining who qualifies to be a dependant in succession matters, the applicable legislation is the Law of Succession Act (Chapter 160) which at section 29 defines a dependant as follows:

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This decision is wrong in principle. The court was faced with an objection to a petition for grant of letters. Objections at this stage are brought by heirs or other persons interested in the estate, who are either complaining that they have been omitted from the list of heirs and beneficiaries or that they have a right in the administration of the estate, and that they would therefore want to participate in its administration. With respect, the issue of dependency does not arise in objection proceedings to a petition for letters. The issue of dependency is confined to Part III of the Act, in circumstances where a party is alleging that being heirs or beneficiaries they have not been adequately provided for either under the will of the deceased or in intestacy. In intestacy, it only becomes apparent to a survivor that they have not been provided for when an application is made for confirmation of grant, since such application has to be supported by a proposed distribution of the estate. ‘Dependant’ as defined in the Act is a technical term, whose meaning is restricted to Part III of the Act. It does not define a person who was generally dependent on the deceased, and it is not meant to be used synonymously with an ‘heir’ or a ‘beneficiary’ or ‘survivor.’ A dependant in the context of Part III of the Act is the heir or beneficiary or survivor who claims that he has not been provided for at all or his provision is inadequate. Therefore whether an objector to a petition for letters is a dependant as defined in section 29 is irrelevant. Indeed, the definition of dependant under section 29 of the Act is only relevant in proceedings brought under section 26 in Part III of the Act for reasonable provision. It was therefore unnecessary for the court to address its mind to the question of whether or not the objector was a dependant of the deceased; since the court did not have before it an application for reasonable provision properly brought under section 26 in Part III of the Act. The court should instead have grappled with the question whether or not the objector was a widow of the deceased, and therefore entitled to a share in the estate and a role in its administration. This is a matter where the court ought to have properly guided the parties on the issue that fell for determination at that stage of the succession cause.

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For the purposes of this part, ‘dependant’ means: (d)

the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(e)

such of the deceased’s parents, stepparents, grandparents, grandchildren, stepchildren, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and

(f)

Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

The deceased., was at the time of his death married to the first applicant under the provisions of the African Christian Marriage and Divorce Act (Chapter 151) notwithstanding the existence of divorce proceedings between the two.This is because the court had not adjudicated on the said divorce suit and issued decree absolute thereto, which decree is the final and ultimate proof that a lawful contract of marriage has ceased to legally exist and which decree hence finally dissolves marriage. (See Joyce Atemo vs Mary Ipali Imujaro (CA number 274 of 2001). The deceased had no capacity therefore during his lifetime to contract a valid marriage save as provided under section 3(5) of the Law of Succession Act which provides:

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‘Notwithstanding the provisions of ant other written law, a woman married under a system which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular sections 29 and 40 thereof, and her children are, accordingly children within the meaning of this Act.’

Thus and as aforesaid, the main question that must be addressed is whether the objector was a customary law wife of the deceased within the meaning of section 3(5) (supra) of the Law of Succession Act and hence entitled not only as a dependant but also to inherit the net intestate estate of the deceased, in this respect, it was incumbent upon the objector to proceed and prove on balance of probabilities that she was married to the deceased under the applicable customary law. This is in accordance with the decision of the Court of Appeal in Irene Njeri Macharia v Margaret Wairimu Njomo and another (CA number 139 of 1994) where the court held: ‘in the appeal before us, we have said we do not know whether the first respondent and the deceased ever went through any ceremony of marriage; we are also not certain if the concept of a presumed marriage could be applied to such evidence, we are unable to say whether she could qualify as a ‘wife’ under the provisions of section 3(5) of the Law of Succession Act.’

The said court took similar position in the case of Joyce Atemo v Mary Ipali Imujaro (CA Number 274 of 2001) when it held: ‘we must, of course, start from the well known position that he who seeks to rely on any African Customary Law as the basis of his claim, must prove by evidence the existence of such custom – see Ernest Kinyanjui Kimani v Muiru Gikanga and another (1965) EA 735 cited by Gicheru JA (as he then was) in Sakina Sote Kaittany and another v Mary Wamaitha, Civil Appeal Number 108 of 1995 (unreported).’

The objector testified that she came to know the deceased in 1987 when she was a secretarial college student and that upon completion of her course in 1988 the

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deceased immediately employed her in his insurance business concerns. Ion the same year the deceased introduced the objector as a lover to his late father and after that during the same year this is what happened: ‘After this we went to my parents’ home and I introduced him to my parents. My parents’ home is in Embu. We went, first with his brother the late Simon Githuka and a cousin Stephen Ndung’u; the second occasion we went with the deceased, his sister Naomi Wambui, a sister-in- law of the deceased Lucy Mburu, plus his parents. They took to my parents what they had, namely beer, sugar, sodas, rice, and money. On the third time the deceased and his parents took to my parents dowry in the form of money i.e. more than KShs 100 000. They slaughtered a goat and completed customary rites for a marriage.’

This is what Steven Rodgers Mburu (PW2) the only witness called to testify to the foregoing events testified: ‘The concubine took the deceased to her parents. I was present. Her parents accepted the deceased.The deceased gave them over KShs 100 000.We visited the home of the concubine three times. We met family members and parents.’

It is noteworthy that in his entire testimony the said PW2 constantly referred to the objector as a concubine. Even though the objector is said to have come from Embu and the deceased from Murang’a there was no clear cut distinction made as regards applicable customary law for as stated in Chapter 2 of the Restatement of African Law – Kenya Volume 1 Marriage and Divorce (1968) by Eugene Cotran Kikuyu and Embu people largely share identical and indistinguishable customary law and practices. Cotran has in his writing described various essential stages that must be taken prior to solemnisation of a valid customary law marriage under the Kikuyu custom. These steps include consent of the family of the bride, the performance of a series of betrothal ceremonies which commence with taking of beer (njohi ya njurio), the payment of first instalment of the dowry (ruracio) and finally the conclusion of the engagement ceremony (ngurario). Cotran says this of the engagement ceremony.

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‘The betrothal is complete when this ceremony has been performed.’ And continues; ‘The parties are considered legally betrothed at the conclusion of the ngurario ceremony.’

The final ceremony which is said to be the actual marriage ceremony is performed after the ngurario and is called guthinja ngoima during which both clans meet and make merry by slaughtering sheep and exchanging presents. It is after this last ceremony that the girl is taken by way of mock capture, to the boys’ home as a wife. The objector in her endeavour to prove that she was lawfully married to the deceased under Kikuyu customary law was supported only by the testimony of PW2 who happened to be a cousin of the deceased. The other said surviving participants in the said alleged customary marriage ceremonies that are said to have been performed in three separate sequences, were not called to give evidence or the veracity thereof. Further, neither the recipient of the alleged dowry nor the givers were summoned by the objector. Furthermore, from the testimony of the objector and PW2 it is vague as to the exact amount of dowry that was allegedly paid because their testimony thereto is based on generalities and not on specifics. Customary law and practice is, as

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documented by Cotran, based on specifics and not generalities and sacred as all other applicable laws, should never be trivialised. It is the reason why section 3(2) of the Judicature Act (Chapter 8) grants express cognisance of the application of customary law within the substratum of the laws of this country. The testimony of the objector and the said PW2 is also at variance on the attendance and on who exactly participated in the said alleged ceremonies for on one hand the objector testifies that PW2 attended only one of the ceremonies whereas on the other hand PW2 testifies he attended all the ceremonies. I find this discrepancy disturbing. I also find that most essential customary ceremonies as clearly outlined by Cotran were not performed and in particular, the very fundamental one called ngurario. As was held in the celebrated case of Hortensia Wanjiku Yawe vs Public Trustee (CA number 13 of 1976), it was the duty of the objector, the one who propounds customary marriage to prove the marriage and as Wambuzi P Said; ‘The appellant had to prove the marriage and that the burden was the usual one in a civil matter, namely on the balance of probabilities.’

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... in her evidence in support of her objection, and sworn on 6 June 1997 the objector has gone to great length to adduce evidence how she was dependent on the deceased as a customary law wife . She has produced rental payment receipts in support of her claim that the deceased was, from 1992 to the date of his death, paying for her rented accommodation. These receipts were however issued in favour of Tropical Motors Ltd one of the companies belonging to the deceased where the objector was employed as a secretary of the deceased. I can only conclude that all those payments were made in accordance with terms and in the ordinary course of employment of the objector by the deceased’s companies. The objector in her said affidavit has also produced evidence that she and the deceased begot a baby girl born on 23 August 1994 but died in hospital on 30 August 1994, and whom they had named after the mother of the deceased in accordance with the tradition of the Kikuyu custom. The objector has produced medical records in an attempt to prove that the deceased was responsible and is the person who settled the entire medical expenses incurred by the objector during her maternity hospitalisation. However the final payment receipt together with what is entitled as interim inpatient invoice clearly indicated that they were issued in the mistress names of the objector described therein as Miss Githuka. The disposal permit of the said deceased daughter of the objector contains explained deletions and it is not clear to whom the said permit was issued. Evidence of interment of the said alleged deceased daughter at the deceased’s farm was not produced, and nor would in any event such interment prima facie be evidence of marriage between the deceased and the objector without proof of such marriage. I am constrained to digress and consider, even though not specifically pleaded, whether a case for presumption of marriage has been or can be made. I regret not for the following reasons. The first applicant’s evidence that she lived with the deceased until they separated in March 1994 was not challenged. It is not disputed that and in accordance with the testimony of the first applicant the statutory marriage between the deceased and herself and contracted on 9 March 1968 had not been dissolved at the time of death of the deceased. DW2 who is the son of the deceased by first applicant visited his father often and thus testified to his closeness with his father by

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virtue of being in the same insurance industry and that at all times during the said visits, his late father was residing all alone at the Loresho matrimonial home even after the said matrimonial separation. It is in this matrimonial home that the deceased while alone, met his untimely and gruesome death during the fateful night. This testimony was not challenged. The testimony of both the first applicant and DW2 rebuts a case for habit and repute, an essential ingredient of presumption of marriage. Said Wambuzi P In Hortensia Wanjiku Yawe v Public Trustee (supra). ‘The presumption is nothing more than an assumption arising out of long cohabitation and general repute that the parties must be married irrespective of the nature of the marriage actually contracted. It may be shown that the parties are not married after all but then the burden is on the party who asserts that there was no marriage.’

In my considered view, the alleged cohabitation between the deceased and the objector and dating back to the year 1988, and hence repute and habit, has not on balance of probabilities been proven on account of the said unchallenged testimony of the first applicant and DW2. I am satisfied that the objector was an employee of the deceased with whom close and intimate relationship had developed as would at times be anticipated, though unconventional, of a personal secretary/cum business assistant. However, even from the very point of law, the said presumption of marriage would not be sustainable. The deceased and the first applicant were married under the provisions of the African Christian Marriage and Divorce Act (Chapter 151). The substantive statute that governs such a marriage is the Marriage Act (Chapter 150) as provided by section 4 and which Act at section 37 provides:

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‘37.

Any person who is married under this Act or whose marriage is declared by this Act to be valid, shall be incapable during the continuance of such marriage of contracting a valid marriage under any native law or custom, but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any native law or custom, or in any manner apply to marriages so contracted.’

Section 42 and 50 of the Marriage Act proceed to pronounce that all marriages solemnised under that Act are strictly monogamous by criminalising any subsequent marriage prior to dissolution. During the subsistence of the said marriage between the deceased and the first applicant, and which marriage was subsisting up to the date of death of the deceased by reason of the fact that a decree absolute had not been granted as provided under the Matrimonial Causes Act (Chapter 152), the parties thereto were not capable of contracting any other marriage. Reasons whereof recourse cannot be had in equity as argued because of the express provisions of the law. In the circumstances, I hold that a presumption of marriage would not even arise with any other party except as between the deceased and the first applicant, and which such other presumption would ab initio have been rebutted and nullified by the said express statutory provisions. Thus, a presumption of marriage cannot therefore arise where parties are lawfully married under a statute that prohibit and proscribe polygamous marriage as in the instant case that was governed by the Marriage Act (Chapter 150). In addition to the foregoing, section 3(5) of Law of Succession Act (supra) is severely limited in application in that the substance of the said section specifically and unambiguously applies to the case of ‘a woman married under a system of law

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which permits polygamy.’The said section therefore specifically applies to polygamous marriages and does not envisage marriage by presumption, and as was held in the case of Irene Njeri Macharia v Margaret Wairimu Njomo and another (supra), the burden is on the woman alleging marriage to prove that marriage on evidence. The objector in this present case has in view of the foregoing failed to discharge the burden of proof on balance of probabilities. I therefore find that the said objector was not married to the deceased under Kikuyu customary law or any other law for that matter and that consequently was not a dependant of the deceased and dismiss her objection with costs. In the circumstances, a grant of letters of administration intestate to the estate of the deceased shall proceed and issue to the applicants as petitioned. In the Matter of the Esatet of Benjamin Ngumba Gachanja (Deceased) Nairobi high court succession cause number 2172 of 1994. (Etyang J) (Where a person exercises his freedom under section 5(1) of the Law of Succession Act, and disposes of his property in a responsible manner, there would be no basis for the court to interfere)

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CASE NO. 331

A woman claiming to be the only widow of the deceased, having married him under statute, obtained letters of administration intestate to the estate of the deceased, and subsequently she had the grant confirmed with the property being registered in her name in trust for her and her children. Persons claiming to be executors of the will of the deceased sought revocation of the grant on the basis that it was obtained fraudulently as the deceased had died testate and had another wife, which facts were not disclosed to the court. The court took evidence, and finally concluded that there was a valid will of the deceased which had to be honoured in view of section 5(1) of the Law of Succession Act, that both women and their children were dependants of the deceased, and that the will had adequately provided for all of them. Since probate of the will had been obtained in another cause, the court revoked the grant of letters to the first widow, and ordered the cancellation of the land transactions effected on the basis of the grant.

ETYANG J: I have given due consideration to the recorded evidence, placed before me by both the applicants and the respondent. It is established, to my satisfaction, that the deceased and the respondent solemnised a formal Christian marriage on

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24 January 1940. Pursuant to the provisions of the African Christian Marriage and Divorce Act, which came into operation on 17 December 1981. Before then the statute in application, which had been repealed, was the Native Christian Marriage Ordinance.85 It has also been established, to my satisfaction, that the marriage between the deceased and the respondent has, to date, not been dissolved. Indeed divorce proceedings are said to have been instituted in the Resident Magistrate’s Court Murang’a in Divorce Cause Number 6 of 1964. The applicants did not prove that those divorce proceedings were concluded and a formal divorce order issued. The respondent denied any knowledge of those divorce proceedings through her son, Elijah Gachanja, informed the court that those proceedings were not concluded. The applicants then set out to prove that, though the marriage between the deceased and the respondent may not have been formally dissolved, the respondent nevertheless walked out of the matrimonial home in 1959 and never returned to the deceased until his death on 9 September, 1994. The applicants were putting forward a case that there was constructive divorce between the deceased and the respondent, and that the respondent was the guilty party (spouse). The respondent denied the existence of constructive divorce between her and the deceased. Evidence to the contrary, she said, has been adduced to show that she left the matrimonial home to seek further medical treatment in Nairobi, and that she would return to her matrimonial home, from time to time as and when she felt better in health to do so. In any case she told the court that she was never absent from her matrimonial home at any single period of time.

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In my view, whether or not the respondent was in constructive desertion or whether the deceased considered her as having deserted him, their marriage could only have been dissolved during their lifetime by a decree of divorce under the Matrimonial Causes Act Chapter 152 Laws of Kenya. There is no decree of divorce pronounced by a competent court dissolving the marriage solemnised by the deceased and the respondent on 24 January 1940. Therefore, when the deceased died on 9 September 1994 he was still statutorily and validly married to the respondent. A supplementary legal point for determination is whether the deceased could legally contract another marriage when he was still legally married to the respondent under the provisions of the African Christian Marriage and Divorce Act. To answer this question reference is made to section 4 of this Act and section 3 of the Marriage Act Chapter 150 Laws of Kenya. It is provided in section 4 of the African Christian Marriage and Divorce Act Chapter 151 as follows: ‘4.

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Except as provided in this Act, the provisions of the Marriage Act, shall apply to all marriages celebrated under this Act.’

This is not the correct position.The Native Christian Marriage Act was replaced by the African Christian and Divorce Marriage Act in 1931.

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And section 37 of the Marriage Act Chapter 150 provides: ‘37.

Any person who is married under this Act or whose marriage is declared by this Ac to be valid shall be incapable during the continuance of such marriage of contracting a valid marriage under native law or custom but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any law or custom or in any manner apply to marriages so contracted.’

It is clear from the above provisions, that section 37 of the Marriage Act prohibits the couple already married under Marriage Act Chapter 150 or under the African Christian Marriage and Divorce Act from contracting another marriage before the first marriage is dissolved. Any such purported marriage is invalid. In Kizito Machani v Maryrose Vernoor Civil Appeal Number 61 of 1984 the Court of Appeal upheld the statutory prohibition in section 37 of the Marriage Act and pronounced a second purported marriage solemnised when the first statutory monogamous marriage under the Marriage Act was still subsisting. The same holding was made in John Ndungu Mubea v Milka Nyambura Mubea Civil Appeal (Nairobi) Number 76 of 1990. In the light of those statutory provisions and pronouncements by the Court of Appeal I hold that the deceased’s purported marriage to Frida Nyambura under Kikuyu customary law was invalid for lack of his capacity to marry. At the time of his death the deceased was survived by one widow, the respondent.86

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The second issue for my determination is whether the respondent and her children are dependants of the deceased. There is no doubt, to begin with, that the respondent is the widow of the deceased. She is therefore a dependent pursuant to the provisions of section 29(a) of the Law of Succession Act.There is also no doubt that the deceased person’s surviving children born with the respondent are dependants. These are Elijah Gachanja, Stephen Mbatia, David Gakobo, Daniel Mwangi, Joseph Kinyeru and Susan Wairimu. Timothy Kago and Miriam Ngumba are said to have pre-deceased the deceased. If they left any surviving dependants of their own, then those dependants can step into their shoes and be entitled to a share of the deceased’s estate.87 The third issue is whether the children of Frida Nyambura are the deceased’s dependants as well. The identity of these children is beyond doubt. They are: Mary Wanjiru, Josephine Wambui, Levi Gachanja, James Njuguna, Leah Wangechi, Loise

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This decision is wrong. It clearly ignores the explicit provisions of section 3(5) of the Law of Succession Act. Etyang J in this matter echoes Aluoch J in In the Matter of the Estate of Reuben Nzioka Mutua (deceased) Nairobi High Court probate and administration number 843 of 1986. However, the two judgments differ in that while Aluoch J considered section 3(5) but interpreted it in a manner that did not favour wives married under customary law, Etyang J did not consider section 3(5) at all. Yet section 3(5) is designed to apply in situations of this nature, to women who find themselves in the situation that Frida Nyambura found herself in – married under customary law to a man who had no capacity under the marriage statutes to marry her. The correct legal position is that stated by the Court of Appeal in Irene Njeri Macharia vs. Margaret Wairimu Njomo and another Nairobi Court of Appeal civil appeal number 139 of 1994 (Omolo and Tunoi JJA, and Bosire AJA). Etyang J should have found that Frida Nyambura was a widow of the deceased by virtue of section 3(5), if he was satisfied that she was married in full compliance with the requirements of Kikuyu customary law. This will depend on whether the deceased died testate or intestate. If he died intestate, the principle of substitution or representation will apply and the grandchildren of the deceased will be entitled to the share of their deceased parents, the children of the deceased. If he died testate, the grandchildren, if not provided for, will be entitled if they can show that they were dependent on the deceased immediately before his death. Their entitlement is not automatic, based on the fact of their being children of the deceased.

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Muthoni, Elisha Kago and Elias Githaiga. Though the respondent has claimed that she does not know these children as being those of Fridah Nyambura, supported by Elijah Gachanja her son who said that he saw the deceased with these children but he did not ask his father who the father of these children was, there is ample evidence to show that all these children are the deceased’s children, he recognised and accepted them as his children. Both the applicants and the deceased’s brother, Mr Gachanja PW4, have testified to this effect. The meaning of the word ‘dependant’ for purposes of the Law of Succession Act Chapter 160 Part III, which relates to ‘Provision for Dependants’ is given in section 29(a) thereof and it reads: ‘Section 29. For purposes of this part ‘Dependant’ means – (a) the wife or wives, or former wife or wives and the children of the deceased whether or not maintained by the deceased immediately prior to his death.’

In other words, a deceased person’s children, born within or outside wedlock, are deemed to be his dependants. In this particular case, the children of the deceased born with the respondent with whom he wedded, and with Frida Nyambura, with whom he cohabited, are all deemed his dependants for purposes of the Law of Succession Act Chapter 160. In the case of John Ndungu Mubea v Milka Mubea Civil Appeal Number 76 of 1990 (supra) the Court of Appeal that the deceased had not denied parental responsibility towards Wangari’s children, the woman with whom he cohabited for about 28 years though his marriage to her was invalid by reason of section 37 of the Marriage Act, and therefore Wangari’s children were his dependants who were entitled to inherit his property.

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In the present case before court, the deceased and Frida Nyambura began to cohabit as husband and wife almost in 1959 or 1960, some forty years ago, and from that union the children of Frida Nyambura were born,. They claim a share of their father’s estate, not because their mother’s marriage to their father was valid, but because they are his children. The Court of Appeal, while considering the same point in John Ndungu Mubea v Milka Mubea Civil Appeal Number 76 of 1990 (supra) had this to say: ‘The claim by the appellant and his sisters to a share in the deceased’s estate did not depend on whether or not the marriage between their mother (Wangari) and the deceased was valid in the eyes of the law. Their claim, as we understand it, rests on the simple proposition that they are the children of the deceased who were treated by the deceased as such during his lifetime. For the purpose of their claim, it does not matter how they became the children of the deceased.’

That should take care of Frida Nyambura’s children.They are entitled to a share of the deceased’s estate. The fourth issue is whether Frida is a dependant of the deceased within the meaning of section 29(a) of the Law of Succession Act? Giving its strict construction, the entire section 29 of the Law of Succession Act excludes Frida Nyambura from being a dependant. She is not the deceased’s wife or former wife, and does not fall

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under paragraphs (b) and (c) thereof. She was a woman who cohabited with the deceased under an erroneous assumption that they were lawfully married under Kikuyu customary law.88 Is she without remedy? Where does the law place her? This answer depends entirely on whether the deceased died intestate or testate. If the deceased died testate then the devolution of this estate amongst his dependants would be strictly done in conformity with the rules of intestacy.89 But where he has died testate then the court will have to decide whether the will which the deceased made was validly made and whether it can be said that the deceased has reasonably distributed his property.90 In other words I am now bound to answer this fourth issue, as it relates to Frida Nyambura, after I have dealt with the fifth issue whether the deceased died testate or intestate. It is the applicant’s case that the deceased died testate, that he made his last will on the 31 March 1993 and appointed David Kabia Njuguna and Ben Maina Kahiu as the executors and trustees of the said will. A copy of that will is an exhibit in this application, it is marked DKN-2 attached to the affidavit sworn by the first applicant. The applicants called Obadiah Thiong’o Ngwiri (PW5) an advocate of this court who testified that he knew the deceased when he, PW5, was aged 12 years and when the deceased was the Headmaster of Kabete Primary School. PW5 told the court that the deceased made this will because he is the one who wrote it out on the deceased’s instructions. He said he drew it up on 31 March 1993. He said, after drawing it he read it to the deceased who accepted it after he understood its contents. The deceased then signed it. His witnesses were Ruth Chege and his secretary in the law firm, one Grace Wandithia, who has since passed away. PW5 said the deceased had named the applicants as his executors. PW5 told the court that he is not the one who suggested to the deceased to appoint the applicants as the executors, that he did not even know these executors by then. He also said he knew the deceased was married to the respondent and to Mary Gathoni but that he did not suggest to the deceased how to distribute his property.

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PW5 said that upon the death of the deceased he called the two widows and their children as they were all beneficiaries under the will. He also called Mr Jeremiah

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The basis for this finding is not clear. Evidence was led to the effect that Frida was married to the deceased under Kikuyu customary law, and that the all important ngurario was performed. The judge did not analyze the evidence on the ngurario and thereafter discount it before finding that Frida laboured under the erroneous assumption that she was a customary law wife. The court should have discussed what constitutes a Kikuyu customary law marriage, and test the evidence on record on the alleged Kikuyu customary law marriage between Frida and the deceased against that to determine whether the same met the standards of a Kikuyu marriage. The conclusion by the court that Frida was not a wife was clearly without proper legal foundation. The choice or use of the word ‘dependant’ here is rather unfortunate. Dependant is used in a technical sense in the Law of Succession Act, in that its application is limited to Part III of that Act. Part V of the Act, which deals with intestacy, does not employ this term at all. Indeed, it is not used anywhere in Part V. Part V talks of surviving spouses, children and other relatives of the deceased. The persons entitled upon the intestacy of the deceased owner of property are defined in Part V, but they are not defined as dependants. The use of the term dependant with reference to intestacy is likely to cause confusion since the term dependant is defined and used in section 29(a) for the purpose of Part III. The court determining whether a will is valid or not does not have to determine whether the deceased in his will reasonably distributed his estate. The issue of reasonable distribution should only arise where a party has appropriately brought an application under section 26 saying that the deceased did not in his will reasonably provide for him. It is not the province of the court, even when faced with an application under section 26, to decide whether a will distributes an estate reasonably. The issue of reasonable distribution is limited to distribution with respect only to the person complaining.

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Ndungu Mbuthia (PW6) an advocate in the firm of Mbuthia and Mbuthia Advocates, who was the respondent’s advocate, to attend the reading of this will. He also called two brothers of the deceased to be present. PW5 produced a letter written by him to the two widows to attend him at his office. He received letter dated 10 November 1994 written to him by Mr Mbuthia in which the reading of the will was postponed to the 9 December 1994. He wrote a letter to Mr Mbuthia accepting to have the will read on 9 December 1994 at 3 pm instead of 2:30pm as earlier suggested. PW5 said the will of the deceased was read on 9 December 1994 at 3:00pm. He gave the widows a copy of the will and invited them to send to him any objections. Receiving no objection he proceeded to apply and obtain probate on 5 September 1995, produced as exhibit DNK – 4. He then applied for confirmation of probate and he obtained it on 13 May 1996 (produced as exhibit DNK – 3). Mr Jeremiah Ndungu Mbuthia (PW6) informed the court that he saw and read the deceased’s will (exhibit DNK – 2) and he confirmed that the will was indeed read in PW5’s office on 9 December 1994 at 3:00pm or thereabouts. He was acting for the respondent but could not recall whether the respondent was also present at the reading of this will. There were, however, two sons of the respondent present when the deceased’s will was read: Joseph Kinyeru Ngumba and Stephen Mbatia. These two were in court when this evidence was given and they were positively identified. He did not, thereafter, receive any rejection to this will from the respondent. No objection has ever been served upon him.

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It is true, Mr Mbuthia recalled, that he filed proceedings in the Senior Resident Magistrate’s Court Morang’s in civil case number 341 of 1994 (exhibit MGN – 6) relating to a burial dispute . In those proceedings the respondent was claiming that the deceased made no will.Though Frida Nyambura was contending that there was a will, she did not present it to court as an exhibit. He however, recalled that on 9 December 1994 the deceased’s will was indeed read in Mr Ngwiri’s office, and this was after the deceased’s death. In her evidence the respondent maintained throughout that her husband had left no will and that she did not attend the reading of the same. She said that she was indeed summoned to go to Mr Ngwiri’s office to witness the reading of the will but that she did not go. Instead some members of her family attended at the reading of the deceased’s will. Elijah Gachanja (DW2) when giving evidence brought in the issue of the deceased’s health and suggested that when the deceased made this will he might have been sick and incapacitated but, of course, no medical records or further evidence was adduced to prove this contention. Any person making a will shall be deemed to be of sound mind unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness or from any other cause, as not to know what he is doing. The burden of proof that a maker of a will, at the time of making it, was not of sound mind, lies on the person who so alleges. In this case the respondent failed to show that the deceased, when he made this will, was incapacitated at all either by reasons of mental or physical illness or drunkenness or any other cause whatsoever. I am satisfied that the deceased gave full instructions to Mr O T Ngwiri to draw up this will, and it was so drawn. In that will, the deceased appointed the applicants as

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the executors and trustees of the same: their appointment has not been challenged.The deceased made this will before two competent witnesses and he signed it. Thereafter, the will was read to the beneficiaries on 9 December 1994 at 3:oopm in Mr O T Ngwiri’s office. In the light of the foregoing I hold that the deceased has made a valid will and the same has been proved to my satisfaction. In the light of this finding, the deceased did not die intestate. He died after making a valid will. This answers the fifth issue. As regards the fourth issue, whether Fridah Nyambura is also an accepted beneficiary under the will, it is trite law that the deceased had the unfettered testamentary freedom to dispose of his property in any manner he deemed fit. He got the power to do so under section 5 of the Law of Succession Act, which reads: ‘Section 5(1) Subject to the provisions of this part and Part III, any person who is sound mind and not a minor may dispose of all or any of his free property by will, or may thereby make any disposition by reference to any similar or religious law that he chooses.’

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In Elizabeth Kamene Ndolo v George Matata Ndolo civil appeal number 128 of 1995 the Court of Appeal had this to say on the discretion placed on a testator to dispose of his property: ‘In his life time the deceased was a polygamous man married to three wives. Polygamy is lawful institution in our country and it will probably take some doing by Parliament in our country to put an end to it. The seeds of this dispute were sewn by the deceased himself when he failed to make provision in his will for first two wives. This court must, however, recognise and accept the position that under the provisions of section 5 of the Act, every adult Kenyan has unfettered testamentary freedom to dispose of his or her property by will in any manner he or she sees fit. But like all freedoms to which all of us are entitled, the freedom to dispose of property given under section 5 must be exercised with responsibility and a testator exercising that freedom must bear in mind that, in the enjoyment of that freedom, he or she is not entitled to hurt those for whom he was responsible during his or her lifetime. The responsibility to the dependants is expressly recognised by section 26 of the Act ... This section clearly puts limitations on the testamentary freedom given by section 5. So that if a man by his will disinherits his wife who was dependant on him during his lifetime, the court will interfere with his freedom to dispose of his property by making reasonable provision for his disinherited wife. Or if a man at the point of his death gives to his mistress the family’s only home and makes no provision for his children who were dependent on him during his lifetime, the court may well follow the mistress under section 26, and reasonable provision for the dependent children out of the house given to the mistress. So that though a man may have unfettered freedom to dispose of his property by will as he sees fit, we do not think it is possible for a man in Kenya to leave all his property for the maintenance and upkeep of an animal orphanage if the effect of doing so would be to leave his dependants unprovided for.’

The facts of the case before me are that the deceased and the respondent, after their marriage in 1940, lived together upto 1959 or 1960. Then problems developed and the respondent decided to relocate to Nairobi, though she said she fell sick, developed blood pressure and was advised to change her environment to live in Nairobi. According the respondent she would go back to her home, once in a while, to check on her children and, probably, on how things were going on back there. The deceased termed it as desertion but did not petition for divorce to conclusion. He instead started to live with the housemaid, and did so up to the time of his death. This is from around about 1970 to 1972. He died in 1994, after living with the housemaid,

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Frida Nyambura, for over twenty years and after he produced with her about six or so children. He died before he obtained a formal divorce decree from the court and, as far as the law is concerned, his estranged wife (respondent) is still his lawful wife, a book wife as it were. Before his death the deceased made his will and gave his property to his estranged wife (respondent) and her children.The deceased also gave his second wife91 (Frida the housemaid) property and to her children. In other words the deceased, in the exercise of his unfettered testamentary freedom, decided to dispose of his property to all his children, and to ‘all’ his wives. The deceased felt, in the enjoyment of that freedom, he was not entitled to hurt Frida Nyambura who he was responsible for twenty years and over during his lifetime. The respondent’s case now is that, as she was the only lawful wife of the deceased, and as Frida was only a mistress, Frida is not a dependant and not a beneficiary. In my view, as the deceased has exercised his unfettered testamentary freedom to bequeath part of his estate to Frida, a person he was responsible for over twenty years, he acted responsibly and in a manner acceptable to this court, under these peculiar circumstances. For these reasons, I hold that Frida Nyambura is a beneficiary of the deceased’s estate under this will.92 In Re Estate of Kittany [2002] 2 KLR 720 (Nambuye J) (Section 3(5) of the Law of Succession Act cannot aid a woman who marries a man already married under statute, and the woman married under customary law is not entitled to share in the estate of the deceased)

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CASE NO. 332

The dispute was between two women both claiming to be the widows of the deceased and therefore entitled to a share in his estate. One was married under customary law while the other was married under statute. The one married under customary law sought refuge under section 3(5) of the Law of Succession Act, while the one purportedly married under statute argued that she was the sole wife of the deceased by dint of section 37 the Marriage Act. NAMBUYE J: I was also referred to the amendment to section 3 of the Law of Succession Act Chapter 160 laws of Kenya where section 3(5) was introduced and whose wordings are: Notwithstanding the provisions of any other written law a woman married under a system of law which permits polygamy is where her husband has contracted a previous or subsequent monogamous marriage to another woman nonetheless a wife for the purposes of this Act and the particular sections 79 and 40 thereof and her children are accordingly children within the marriage of this Act. 91 92

The court does not appear to be decided on the actual status of Frida. There is a finding that she was not a wife, yet here the court refers to her as ‘second wife’! The ruling of the court was largely based on Part III of the Law of Succession Act, yet the court was not hearing an application for reasonable provision brought under section 26 of the Act; what was before the court was an application for the revocation of grant.

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As submitted by the petitioner’s counsel [for Rhoda] this section was interpreted by my sister Judge in the case of In the Matter of the Estate of Reuben Nzioka Mutua Nairobi High Court P and A cause number 843 of 1986 to mean that a woman married under customary law is protected by that section for purposes of maintenance in the event the husband contracts a subsequent statutory marriage to another woman. That decision is from a court of concurrent jurisdiction and it is therefore of persuasive authority to this court. In this court’s view the operative words “where her husband has contracted a previous or subsequent monogamous marriage to another woman” This court’s interpretation of that amendment is that where it is proved that the deceased had previously contracted a valid customary marriage and then subsequently contracted a subsequently statutory marriage both wives will inherit his estate. Likewise where the deceased contracted a previous statutory marriage and then subsequently contracted a customary marriage for purposes of the Succession Act only both women are wives. There is no doubt that that section is in direct conflict with the authorities cited herein and section 37 of the Marriage Act. The breath and purport of that section will be gone into later when determining who are the heirs to the estate subject of these proceedings. I have considered the totality of the evidence adduced by both sides, considered the submissions of both counsels and the legal provisions and authorities referred to me and this court’s findings are as hereunder: (1)

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(i)

(2)

Legal Status of the parties disputing herein Nora Tigoi, the mother of the deceased is an undisputed dependant. Even Rhoda agreed that the deceased maintained his mother. It is only the two of them who do not get on along well. Each accuses the other of disliking the other and not wanting to see her. Both fear that if the other is granted the letters of representation alone, she will not cater for their interests well. Each wants to be an administrator. It is the finding of this court that if the parties do not get on along well as has been displayed in this case as between Nora Tigoi, the mother of the deceased and Rhoda Kittany, it is only proper that both be appointed joint administrators in order for each to safeguard her interest. It is also the finding of this court that Rhoda Tigoi, the mother of the deceased qualifies both to inherit the estate of her deceased son and also to administer the same jointly with the wife or wives as the case may be.

Rhoda Kittany and her children:

The evidence on record shows that Rhoda’s marriage to the deceased is not quite in dispute. At first it was customary. The brother came and confirmed payment of part of the dowry and the court believed him as there was no contrary evidence. The counsel for the first objector to Rhoda’s petition (Sally) tried to fault that marriage on two fronts: (i)

Not all customary prerequisite as per customary law of marriage of the Kipsigis was gone into and so the customary marriage was not valid. This court’s finding on this is that no authority was produced to that effect and no evidence was produced to that effect to show that this was the position under Kipsigis/Nandi customary law. Secondly the issue was not raised in cross-examination of witnesses but in counsel’s submission. I find the same is displaced. (b)

Issue was also raised about the statutory marriage of Rhoda and her deceased husband, also by the counsel for the first objector to Rhoda’s petition on the ground that the same cannot stand as a customary marriage cannot be

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converted to a statutory marriage under the Marriage Act but under the African Christian Marriage Act Chapter 151 Laws of Kenya. This court’s finding on this argument is that if the customary marriage of Rhoda and deceased was not valid as submitted by counsel, then the deceased and Rhoda were at liberty to marry under statute. Secondly a marriage cannot be declared null and void through a counsel’s submissions. The court should have been moved substantively to declare the same null and void. Having failed to so move, the court, it means that that marriage stands to date and it is valid and recognized by law and this court does recognize the same for purposes of these proceedings. It is therefore the finding of this court that Rhoda Kittany is a legal wife of the deceased and she is entitled to administer the estate of the deceased either alone or jointly with others as this court shall rule.

(3)

Rhoda’s children

It was alleged that two of Rhoda’s children were disputed by the deceased but no documentary proof was shown to that effect that the deceased complained so. No witness came forward to confirm that the deceased raised that complaint. His own mother Norah Tigoi recognized all of them for purposes of inheritance even Sally. It is therefore the finding of this court that all the children of Rhoda and the deceased are entitled to inherit the estate of the deceased. (4)

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(i)

Sally Kittany and her two children Sally: Sally claims to have married the deceased as a second wife because the deceased was having problems in his marriage with Rhoda and secondly he wanted someone to take care of his mother. It is on record and it was even admitted by Rhoda herself and her witnesses that there was trouble in their marriage but each time it arose elders from both sides and relatives sat and resolved the issue and they became reconciled. Even the disagreements by the mother in law was sorted by the elders and settled. She, Rhoda agreed at one time she moved to Kericho and stayed there briefly but they reconciled and during her absence, the mother in law came, stayed in the home and looked after the home and the children.

There is also evidence that the family advised him to marry another wife and that is how Sally came into the picture of the deceased’s life. The mother of the deceased and some of her witnesses recognize Sally and her children. Rhoda and her witnesses do not. Sally herself says that she was married under customary law at Ndabibi in Naivasha in a home of a person, who is now deceased. (ii)

None of the family members from either side were present although they send their blessings.

(iii)

None of those who witnessed or conducted the same came to testify.

(iv)

It was admitted that no dowry was paid.

It is the finding of this court that the foregoing circumstances go to show that though the deceased’s marriage to Rhoda was troubled no steps were taken by the deceased to bring it to an end. It subsisted up to the time of his death. It meant that he had no capacity to marry under customary law or by law required and any ceremony if any were gone into by the deceased and Sally; the same did not constitute a marriage and were null and void. Likewise even if there were such ceremonies the same did not constitute a marriage as not all the prerequisites were gone into and no house put up for Sally.

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The next question is whether Sally can fall onto the presumption of marriage through long cohabitation and repute.This court has held in another case with similar circumstances that before a man or woman is to be presumed to have been married by virtue of long cohabitation and repute there has to be a declaratory order from a court of competent jurisdiction declaring.93 There is no such a declaratory order exhibited herein. It is the finding of this court that Sally Kittany is not a wife of the deceased and she does not come within the ambit of the provisions of the amendment in section 3(5)94. of the Law of Succession Act and so she will not inherit the estate of the deceased. She cannot also administer the same save for purposes of safeguarding the interests of her children if they are found to be eligible to inherit the estate of the deceased. (ii)

The Children of Sally

Sally herself and mother of the deceased recognize them and are willing to have them inherit the estate of the deceased. Rhoda and her counsel have put up a hard fight to lock out of the estate both the mother and the children. The counsel for the first objector Sally has submitted that the children can inherit even in the absence of a marriage between their mother and the deceased. The disqualification points put forward by the counsel of PW1 are: (i)

The birth certificates were obtained after the death of the deceased and no baptismal cards and birth notification documents were produced to show that the deceased had been indicated as their father before death.

(ii)

That there is nothing to show that the deceased consented to be registered as their father.

(iii)

There is nothing to show that the deceased maintained them and had accepted them as his own children.

(iv)

That the deceased was given his surname as Kittany while the children bear the name Chepkwony and they could have been for any other Chepkwony.

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I have considered those points in the light of the evidence adduced and I find that:

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(i)

It is the mother Sally who can positively swear and say who is the father of each of her children.

(ii)

If she were dishonest as portrayed by PW1 and her counsel then why did she not include the first and last child?

(iii)

Evidence of maintenance between people who live together as man and wife though they are not so legally married is sometimes hard to prove as in normal circumstances no records are kept of the day to day activities in such a house or home. It is therefore

This holding by the court is not supported by the available case law. A presumption of marriage can be made by the court in a succession cause and one need not file a separate suit for a declaratory order to that effect. The High Court and the Court of Appeal have done so in several succession or probate cases, which include Hortensia Wanjiku Yawe vs The Public Trustee CA No. 13 of 1976 Court of Appeal for East Africa (Wambuzi P, Mustafa and Musoke JJA), Njoki vs Mutheru ( 1985) KLR 871 (Madan, Kneller and Nyarangi JJA) In the Matter of the Estate of John G. Kinyanjui Nairobi High Court Probate and Administration number 317 of 1984 (Butler –Sloss J) and In The Matter of Stanley Charles Mungai Ndungu (deceased) of Karinde Kiambu District Nairobi High Court Succession Cause number 2398 of 2002 (Koome J) If there was evidence that Sally was married under customary law, and the requisite customary law rules were performed the court ought to have found that she was a wife by virtue of section 3(5), since that provision is meant to protect such wives, married by men who subsequently married under statute.

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only the deceased who could positively controvert what Sally said but unfortunately, he is not here to say that. (iv)

The mother of the deceased said that whenever children were born the deceased informed her and she took traditional herbs to Sally, stayed with her during that time shortly after birth in accordance with their custom. This evidence was not commented on by the counsel of PW1 and I believe the testimony of the deceased Norah Tigo (DW4). This was a sign of recognition of the paternity of the children by the deceased.

(v)

As regards the name of Chepkwony it is in evidence that the father of the deceased gave to his sons upon initiation either the name Arap Lelel, Arap Chepkwony or Arap Kittany. The name appearing as Arap Chepkwony is therefore a family name of the deceased’s family.

It is on record from the evidence of the brother of PW1, that he has knowledge that the deceased used to have extra marital affairs with other women besides Rhoda. The deceased went as far as going with these women to his house and he named them as mother Kibet and mother Gakweria who have not come forward to claim part of his estate. The said brother said that at no time did the deceased mention Sally to him neither did he bring her to his house. Evidence that the deceased had extra marital affairs is enough. It does not rule out Sally to have been one of those women. The deceased was not obligated to disclose each and every association to the brother of PW1. The failure to disclose to him does not rule out Sally’s association to the deceased as he the deceased was not obligated to disclose it to anybody although he disclosed the same to his mother and some of his relatives. It is on record that he never wanted the two women to meet and that accounts for the secrecy. Further the fact that no other women came forward to claim part of the estate except Sally does not bar her claim for her children.

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It is therefore the finding of this court that the two children of Sally fall within the ambit of the amendment in section 3(5) of the Law of Succession Act and are eligible to inherit the estate of the deceased independent of their mother Sally. Having so held, I now come to determine the administrator of the deceased’s estate and two (2) the distribution of the estate:-

ADMINISTRATOR In view of the hostilities displayed in these proceedings this court appoints the following as administrators of the estate of the deceased. 1.

Rhoda Kittany to represent her own interest and those of her children.

2.

Norah Tigoi to represent her own interest and act as a joint trustee for the children of Sally born to Sally and the deceased.

3.

Sally Chebiwot Maina to represent the interests of her two minor children and also act as trustee for them jointly with the mother of the deceased Norah Tigoi:

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DISTRIBUTION OF THE ESTATE In doing so the court will be guided by the fact that Norah lived the longest with the deceased and contributed substantially to the developments of the deceased’s estate. The court will also be guided by the principles set out in the Succession Act Chapter 160 laws of Kenya section 28 thereof and these are: (a)

The nature and amount of the deceased’s property.

(b)

Any past, present or future capital or income from any source of the dependant.

(c)

The existing and future means and needs of the dependant.

(d)

Whether the deceased had made any advancement or other gift to the dependant during his lifetime.

(e)

The conduct of the dependant.

(f)

The situation and circumstances of the deceased’s other dependants and the beneficiaries under any will.

(g)

The general circumstances of the case including so far as can be ascertained the testator’s reasons for not making provision for the dependant.

The estate of the deceased comprises of the properties set out at pages 7-10 of this judgement. I have considered all the relevant factors in this case and doing the best I can distribute the estate of the deceased as hereunder: 1.

To Norah Tigoi the Mother of the Deceased (i)

NSSF benefits of KShs 154 040. Whole share together with any accrued interest.

(ii)

And undeveloped plot at Kericho measuring 50 feet by 100 feet.

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2.

Rhoda Kittany with all Her Children (a)

NANDI KAIBOI/887

(b)

NANDI KAIBOI/888

(c)

NANDI/KAIBOI/880

(d)

NANDI/KAIBOI/882

(e)

NANDI KAIBOI/1068

(f)

LR 78830/174 TO BE SHARED WITH ONE KOGO

(g)

A PLOT IN Mombasa allotted to the deceased and another.

(h)

Motor vehicle registration No KAB 233X.

(i)

Death gratuity Kshs. 1,805,204/80.

(j)

Widows and children pension Kshs.46,000/- per month from the date of death to date together with any accrued interest.

(k)

All proceed from Chemoni Tea factory of Kshs. 243,348/60 as at the time of trial and any other additional sums since then together with any accrued interest thereto.

(l)

To get all debts owed to the estate of the deceased, which she will recover herself.

(m)

Rhoda Kittany who has taken the lion’s share of the estate will also pay the debts owed to the bank and third parties by the estate.

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The Children of Sally Chebiwot Maina Namely (1)

Allan Kibet Chepkwony Kittany.

(2)

Jael Jelangat Chepkwony Kittany. (a)

Sitima SACCO benefits KShs 108 975 together with any accrued interest if any.

(b)

Refund of employers surrender value KShs 496 695 together with any accrued interest if any.

(c)

A plot in Kiamunyi belonging to the deceased.

(d)

Plot Number ELDORET EMC 17195/208.

(e)

5 acres of land given to the deceased in Kipkelion as his share of the ancestral land.

4.

Each party will bear her own costs of the proceedings.

5.

The money given to the children of Sally are to be deposited in an interest earning account in the joint names of Norah Tigoi and Sally Chebiwot Maina to hold as trustees for the said minors.

6.

The amount so invested for Sally’s children is not to be withdrawn without prior authority from this court and the same to be distributed to the minors when they all attain age of majority.

7.

Interest earned and/or accrued on the said amount to be withdrawn by the trustees from time to time with leave of the court whenever need arises and the same to be used towards the educational and general maintenance of the said minors.

8.

The money due to Norah Tigoi to be paid out to her forthwith. (ii)

9.

The plot to her also to be transferred forthwith.

The money given to Rhoda Kittany and her children to be paid out to her forthwith.

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(ii) The lands and plots given out to Rhoda and her children to be transferred to her.

10.

11.

The plots and land given to Sally’s children are to be transferred into the names of the trustees Norah Tigoi and Sally Chebiwot Maina. (ii)

The said properties are not to be sold, mortgaged or transferred to any 3rd party without prior authority from this court.

(iii)

The said properties to be transferred to the minors when they all attain the Age of majority.

There will be liberty to apply for the sake of Sally’s children who are still minors. ***

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AND

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PROCEDURE

By virtue of section 26, the court acts on an application by some party. It would appear that the court cannot act on its own motion. Under section 30 of the Law of Succession Act, the application for reasonable provision must be made before the confirmation of the grant, which means the application cannot be entertained after the distribution of the estate. Section 30 states:‘30.

No application under this part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71.’

Section 30 should be read together with section 72(a) of the Law of Succession Act, which provides: ‘72.

No grant of representation shall be confirmed until the court: (a)

Is satisfied that no application under Part III is pending; and ... ’

Case number 333 illustrates that an application premised on section 26 would be incompetent, by virtue of section 30, if it is made after the confirmation of the grant. In the Matter of the Estate of Syed Mohammed Arshad Shah Syed Hakamsh (Deceased) Nairobi High Court succession cause number 518 of 1997 (Kamau AJ) (By virtue of section 30 of the Law of Succession Act, an application for reasonable provision under section 26 of the Act must be made before the grant is confirmed)

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CASE NO. 333

The applicant sought revocation of a grant of probate on the grounds that it had been obtained fraudulently, facts had been concealed from the court and that the same had become useless. The applicant’s position was that she had been omitted completely in both the will and the applications for probate and for confirmation of the grant. The court found that the applicant was really complaining that she was a dependant of the deceased yet she had not been provided for in the will. The court found no merit in the application to revoke the grant. If the applicant wanted she could file an application under section 26 of the Law of Succession Act, even then she was time-barred since the grant had been confirmed, and under section 30 of the Act the application under section 26 must be made before the grant is confirmed.

KAMAU AJ: According to the submissions of both said counsel, this application is grounded on the issue of dependency. This is because the applicant was not provided for under the said will and hence comes to this court in a claim of dependency, she having conceded to the validity of the execution of the said will. She cannot in these proceedings be heard otherwise than as a dependant. In the circumstances, her

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claim is properly based on the provisions of section 26 of the Law of Succession Act falling under Part III of the said Act.95 The said section empowers the court to make reasonable provisions for the dependant where such dependant is not provided for in both testate and intestate succession. However, S 30 of the said Act provides: ‘No application under this part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71.’

I find that the applicant was not prima facie at the time of making the applications for grant of probate and confirmation of the same proven beneficiary of the deceased. The executor was thus not duty bound to incorporate her in the said proceedings. The applicant should have appropriately and in good time brought her application under section 26 of the Law of Succession Act. In the circumstances I find that the application by the applicant for provision as a dependant statute barred. The applicant has failed to adduce evidence to prove any of the statutory grounds for revocation as set out under section 76 of the Law of Succession Act. I therefore find no grounds adequate enough to revoke the said grant of probate presently. I accordingly dismiss the said application with costs.

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I make no findings on the validity of the will of the deceased, as this very fundamental issue was not canvassed before me. In any event, determination of validity of the said will cannot be conducted through direct legal submissions. It can only be comprehensively determined through production of tested viva voce evidence.

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An issue was raised that the deceased and the applicant were Muslims, and that therefore Islamic law was applicable to the estate. The applicant, as widow of the deceased, was entitled under Islamic law to a share in the estate of the deceased. The court should have addressed itself to the question of the applicable law in the circumstances. If Islamic law applied to the circumstances, a widow would not be entitled to be provided for under the will of the deceased Muslim since a Muslim can only dispose of a third of his estate by will, which third goes to non-relatives. Relatives are entitled to the remainder of the estate in fixed shares. The widow’s share of the estate falls within this remainder; the defined or fixed shares. The other point the court should have considered relates to whether Part III of the Law of Succession Act could apply to the estate of a Muslim. Part III does not apply to the estate of a person who dies a Muslim. The only part of the Law of Succession Act which applies to the estate of a deceased Muslim is Part VII of the Law of Succession Act.This is by virtue of section 2(3) (4) of the Law of Succession Act.

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In the Matter of the Estate of Nelson Kimotho Mbiti (Deceased) Nairobi High Court succession cause number 169 of 2000 (Koome J) (While distributing the estate of a deceased person, the court can on its own motion find that grandchildren who were dependent on the deceased immediately prior to death were dependants, for whom reasonable provision should be made out of the estate of the deceased)

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CASE NO. 334

The dispute related to the distribution of the intestate estate of a deceased polygamist, where the two administrators filed rival proposals. One of the issues that came up for determination was whether a granddaughter of the deceased, born out of wedlock to an unmarried daughter, was entitled to a share in the estate. The court held that since her mother was alive and entitled to a share, the granddaughter was not a beneficiary, and therefore she was not entitled to a share in the intestate estate of her grandfather. The court, however, found that the granddaughter was dependant on her grandfather immediately prior to his death, and made provision for her out of the estate.96

KOOME J: It is a fact that Jackline is a daughter of Jerusha Wangari. She is 22 years old. She was born out of wedlock and both her and her mother were dependant of the deceased and they stay in the household of the deceased. I am persuaded that Jackline was accepted by the deceased as one of his children,97 but she should not be considered as a beneficiary as her own mother is a beneficiary. However, I am of the view that she was a dependant of the deceased. Even Nancy agreed that the deceased was supporting Jackline but contended that she should inherit from her mother’s share. I therefore make a finding that the deceased estate should be distributed amongst, the two widows and the nine children in accordance with the provisions of section 40 of the Law of Succession Act. I am also satisfied that a reasonable provision from the net estate of the deceased should be made for Jackline Nyawira.

96

97

An issue was raised that the deceased and the applicant were Muslims, and that therefore Islamic law was applicable to the estate. The applicant, as widow of the deceased, was entitled under Islamic law to a share in the estate of the deceased. The court should have addressed itself to the question of the applicable law in the circumstances. If Islamic law applied to the circumstances, a widow would not be entitled to be provided for under the will of the deceased Muslim since a Muslim can only dispose of a third of his estate by will, which third goes to non-relatives. Relatives are entitled to the remainder of the estate in fixed shares. The widow’s share of the estate falls within this remainder; the defined or fixed shares. The other point the court should have considered relates to whether Part III of the Law of Succession Act could apply to the estate of a Muslim. Part III does not apply to the estate of a person who dies a Muslim. The only part of the Law of Succession Act which applies to the estate of a deceased Muslim is Part VII of the Law of Succession Act.This is by virtue of section 2(3) (4) of the Law of Succession Act. It is not necessary that a grandfather accepts a grandchild into his home as his own for the grandchild to access the estate of the grandparent.The provision about a child being treated as a child for succession purposes upon his being taken in under the wings of a man and accepted as his own ideally covers stepchildren and other children who would not otherwise be entitled to share in the estate upon intestacy.

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In the Matter of the Estate of Peter Njenga Kinyara (Deceased) Nairobi High Court succession cause number 1610 of 2000 (Koome J)

CASE NO. 335

(An unmarried daughter of an intestate is a dependant within the meaning of section 29(b) of the Law of Succession Act, and a grant which does not disclose her as a dependant should be revoked) The applicant sought revocation of grant on the ground that her stepbrother who was the holder of the grant had concealed certain information from the court, to wit that the applicant was also a survivor of their deceased father. The court, relying on the provisions of the Law of Succession Act and some international conventions, held that as an unmarried daughter the applicant was a survivor of the deceased and proceeded to revoke the grant to the brother.

KOOME J: The applicant herein is seeking to revoke the grant made on 26 September 2000 that was issued to the respondents. To that extent, I am of the humble view that the provisions of section 7 and 87 of the Civil Procedure do not apply in this matter. Moreover, this matter falls under the provisions of Chapter 160, the Law of Succession. This statute is a self sufficient law as relates to the administration of a deceased estate. Section 2(1) provides:

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‘Except as otherwise expressly provided in this Act shall constitute the law of Kenya in respect of and shall have universal application to., all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of the estates of those persons.’

Rule 63 of the P and A rules makes provisions of the rules of Civil Procedure that are applicable .in my humble view apart from those provisions of the Civil Procedure and its rules that are specifically adopted in the Law of Succession, other provisions of the Civil Procedure are not applicable. The issues pertaining to the administration of a deceased estate should be determined in accordance with the provisions of Chapter 160 Laws of Kenya. In this regard therefore I am of the view that the matters raised in this application are not res judicata and the principle of estoppels does not apply. This now brings me to the fourth issue and most important aspect of this application that is, whether the applicant is beneficiary of the deceased entitled to a share of Dagoretti/Kigemi/81. The applicant is the daughter of the late Mzee Kinyara Nagi, whose estate composed of 3 assets. According to undisputed evidence tendered herein and supported by documentary evidence, the applicant’s mother was given a life interest over a portion of the land being Dagoretti/Kangemi/81 she used to occupy during

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the life time of the applicant’s father. The applicant has never been married. She was born and brought up at this portion of land. This parcel of land is informally divided into three equal portions which were occupied by each of the three widows of the deceased. The second widow had no child and the first widow was the mother of the deceased. The applicant’s claim is over the portion which she and her mother occupied. She claims that she has undertaken extensive developments on this parcel of land. This claim was not denied by the respondents. The applicant has since the death of her father built a permanent house and 150 one bedroom houses for rental whereby the applicant derives her income. She has two children and grandchildren all of whom live on this portion of land. According to the applicant she put up some of these houses when the deceased was still alive and there was nobody including the deceased who raised an objection. The applicant’s other sister, Elizabeth Nduta has also built some rental houses on this portion of land where she gets some income to support herself. The applicant was also given another plot Dagoretti/Kangemi/794.This was given to her before her father died and in the presence of elders and the titles were issued to her even before her father died.

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Since the applicant was given plot Number 94, should she therefore pursue a portion of the suit premises? The applicant’s mother was only entitled to a life interest over the portion of land she occupied on the suit premises, the applicant was a dependant and beneficiary of her mother and the deceased who held the title of the suit premises subject to the applicant’s mother’s life interest.This is the connection that I find that the applicant has beneficial interest to this portion of land that was occupied by her mother. I find that the interest, of the applicant cannot be disregarded and dismissed for the following reasons:

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1.

She is the child of the late Mzee Kinyara Nagi whose title the deceased succeeded as the proprietor of the suit premises.

2.

The applicant has since birth lived and developed this portion of the suit premises while believing and rightly so, that she had beneficial interests as the sister of the deceased and daughter of the original owner.98

3.

The applicant depends on the portion of the suit premises, that her mother had a life interest which is part of the suit premises held by the deceased subject to the applicant’s mother’s life interest.

The disputed asset was land registered under the Registered Land Act. The absolute proprietor of such land enjoys exclusive rights of ownership. The mere fact of being a child or spouse of the proprietor does not confer any rights on such property, and does not entitle the child or spouse to develop the same as if it belonged to them. They develop such property at their own risk. The concept of family land is alien to the Registered Land Act. It is a customary law concept, registration of land under the Registered Land Act ousts the jurisdiction of customary law over such land, and consequently a child or spouse of the proprietor of such registered land cannot claim any automatic rights over the land. It would appear the applicant’s claims over the disputed parcel of land were based on the concept that the land in question was family land and that that was the reason she invested heavily in it by putting up structures on it. The court ought to have considered the relevant land laws before it made its final orders.

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The applicant built some of the houses during the lifetime of the deceased, the fact that he did not raise any objection is an indication that he fully understood that the applicant was entitled to depend on this portion of land.99 In this regard the applicant falls within the meaning of a dependant as provided for under section 29(b) of the Law of Succession.100

‘Such of the deceased’s parents, step-parents, grand-parents, grandchildren, stepchildren, children whom the deceased had taken into the family as his own. Brothers and sisters, and half brothers and half-sisters, as were being maintained by the deceased immediately prior to his death ... ’ Consequently, I am of the firm view and agree with the applicant’s counsel’s submission that the applicant should not be excluded from this portion of land merely on the basis of her gender. The Constitution of this country, section 70 outlaws all forms of discrimination and sex is included and no one should be afforded differential treatment on the basis of their sex.101 This constitutional provision is also in tandem with other international conventions and treaties on human rights that Kenya has signed and ratified.102 I particularly wish to refer to Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which provides: ‘For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women of human rights and fundamental freedom in the political, economic, social, civil and any other field.’

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100

101

102

The decision in this matter is not on a sound legal footing. There were two deceased persons: the father and stepbrother of the applicant, respectively. The matter before the court concerned the estate of the deceased stepbrother. The asset in question had been inherited by the deceased stepbrother from his father, who was also the father of the applicant. The court appeared to base its decision on the fact that the applicant was a child of the deceased father from whom the stepbrother of the applicant had inherited the asset in dispute.The court proceeded as if it was handling a dispute in the estate of the father rather than that of the stepbrother. It would appear that the issues that the applicant was raising in this matter ought, ideally, to have been raised in the estate of the father instead of that of the step-brother. The court clearly found itself running around in circles. It ought to have advised the applicant to pursue her interests or rights in the estate of her deceased father rather than in that of her deceased step-brother where clearly she had no right of inheritance. If the applicant’s position was that the stepbrother held the property in trust for her, then the correct position should have been to seek a declaration of trust against the estate of the stepbrother in an ordinary suit brought by way of plaint. Declaration of trust is not a suitable matter to raise in succession proceedings. There was no legal basis for the court finding that the applicant was a dependant within the meaning of section 29 of the Act. The court was not handling an application brought under section 26 of Part III of the Act, where the issue of dependency would have arisen. It was therefore erroneous for the court to advert to section 29 of the Act. Even if one were to consider Part III of the Act, the applicant would not have qualified for description as a dependant. There was no evidence that she was dependent on her deceased step-brother immediately prior to his death. If the court was saying that she was a dependant of her deceased father, then section 29 would not apply. In the first place, the proceedings concerned the estate of her step-brother and not the estate of her father. Secondly, her father died in 1972, before the Act came into operation, and by virtue of section 2(2) of the Act the applicable law to her circumstances would be Kikuyu customary law and not the substantive provisions of the Act, which include Part III of the Act in which section 29 is located. Section 70 of the Constitution is a general provision and it is derogated by section 82(4) of the Constitution; which allows the application of discriminatory laws with respect to matters of personal law dealing with, among others, devolution of property upon death. The court should have considered both provisions, since section 70 cannot be taken in isolation of section 82(4). Kenya has signed and ratified CEDAW, but the same has not been domesticated. There are clear provisions in the Constitution of Kenya which allow discrimination in the area of personal law. International law cannot override municipal law, and certainly cannot override the Constitution of the Republic, which is the supreme law. At the moment CEDAW is not legally binding in Kenya, it only provides general guidelines. The court can be guided by CEDAW, but it has to decide the disputes coming before it on the basis of the laws of Kenya.

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Article 5 requires all the state parties to this Convention to take appropriate measures: ‘(a)

To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or no stereotyped roles of men and women.’

I have restated the above principles which afford and guarantee equal treatment and protection under the law and also to underscore the fact that the applicant notwithstanding her gender, her beneficial rights over the portion that her mother occupied cannot be ignored simply because she is a woman. It would obviously go without saying that if she was of the opposite gender, the issue of her beneficial interests could have been considered without coming to court perhaps by elders. In this regard therefore I find that the applicant has beneficial interest over the approximately one third of Dagoretti/Kangemi/81 which was occupied by her late mother and the same should have been reflected in the application for the grant of letters of administration. Since the grant of letters of administration were issued to the deceased widow and children, I find they have the priority in law and therefore subject to the beneficial interests of the applicant being noted, the grant of letters of administration need not be revoked. However, the respondents are directed to proceed to confirm the same as soon as possible and not later than three months from this ruling while noting the applicant’s interests. ***

19.4 THE CIRCUMSTANCES

TO BE

CONSIDERED

Section 28 of the Law of Succession Act sets out the circumstances that the court takes into account in determining whether or not to allow provision for a dependant out of the estate of the deceased. Section 28 provides as follows:

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‘28.

In considering whether any order should be made under this part, and if so what order, the court shall have regard to: (a)

The nature and amount of the deceased’s property;

(b)

Any past, present or future capital or income from any source of the dependant;

(c)

The existing and future means and needs of the dependant;

(d)

Whether the deceased had made any advancement or other gift to the dependant during his lifetime;

(e)

The conduct of the dependant in relation to the deceased;

(f)

The situation and circumstances of the deceased’s other dependants and the beneficiaries under any will;

(g)

The general circumstances of the case, including, so far as can be ascertained, the testator’s reason for not making the provision for the dependant.’

Cases number 329, 336, 337 and 335 are founded on section 28 of the Law of Succession Act, and demonstrate the application of the circumstances stated in section 28

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In the Matter of the Estate of Humphrey Edward Githuru Kamuyu (deceased) Nairobi High Court succession cause number 2322 of 1995 (Visram J)

CASE NO. 336

(The conduct of the applicant or dependant in relation to the deceased is a relevant factor for consideration in determining dependency by virtue of section 28 of the Law of Succession Act) The applicants sought provision out of their father’s estate on the grounds that their father had not adequately provided for them under his will. It was held that the father disinherited the applicants because of their conduct towards him during his lifetime, and there is legal basis for considering such conduct in section 28 of the Law of Succession Act as well as Kikuyu customary law.

VISRAM J: Mr Mbigi for the applicant has urged this Court to make provision for the Dependants under section 26 of the Act. In making such a finding, the Court should have regard to section 28 of the Act which states:

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In considering whether any order should be made under this part, and if so what order, the Court shall have regard to :(a)

The nature and amount of the deceased’s property;

(b)

Any past, present or future capital or income from any source of the dependant;

(c)

The existing and future means and needs of the dependant;

(d)

Whether the deceased had made any advancement or other gift to the dependant during his lifetime;

(e)

The conduct of the dependant in relation to the deceased;

(f)

The situation and the circumstances of the deceased’s other dependants and the beneficiaries under any will;

(g)

The general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant.”

In his evidence, the applicant clearly stated that he has land in Embu measuring around 40 hectares and also a house in Thika. The testimony tendered in this Court is to the effect that the two properties were given to the applicant by the deceased. The applicant could not prove his contention that he had bought the two properties from his own resources. He is in any case able to adequately provide for himself in comparison to other dependants, who are not as well as endowed as he. The relationship between him and the deceased was less than cordial. In his will, the deceased has made reference to the disrespect with which he was treated by the applicant. The deceased had in fact written to Kikuyu Police Station seeking police protection from the applicant and two other errant sons in a letter dated 19 April 1989. The tree sons (Stephen Njuguna Githuri, Leonard Mbugua Githuri and Frederick Waithaka Githuri) had also written to the Bank Manager of Barclays Bank,

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Queensway House, Nairobi, on 10 March 1987 asking that their father be prevented from drawing funds from his own account. The three had further asked the Land Registrar to prevent their father from dealing with his parcels of land aforesaid in a letter dated 30 March 1994. This is evidence that those sons, including the applicant, were at cross-purposes with the deceased. On the other hand, it is the respondent, and her elder brother Moses Kamuyu Githuri, who took care of the deceased when he was sick. They paid the medical bills. Correspondence from Nairobi Hospital and their Advocates regarding payment of the deceased’s hospital bill was addressed to the respondent (DW exhibit 3) and not the applicant. The invoices and some receipts are in her name. From the material before the Court, it is not hard to see why the deceased excluded the applicant in his will. Eugene Cotran in his book Restatement of African Law (volume II) writing on the power to deviate by will from the Kikuyu Customary rules of intestacy at page 16, states that an heir may be disinherited if he is cruel to his parents, e.g. he beats them and is constantly disobedient, among other reasons.

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The applicant has not demonstrated the need to be provided for under Section 26 of the Act, but even if he had, the property to which he claims title or apportionment was transferred to other people before the will was made. Hence it does not form part of the deceased’s free estate under section 3 of the Act. That point was raised by Mr King’ara for the respondent, who further submitted that the land distributed before the deceased was given as gifts inter vivos. The estate of a deceased comprises his free property, which under section 3 means ‘the property which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by death.’ Having consented to transfer his property (applications for Consent of Land Control Board and Letters of Consent, PW exhibits 7 – 10), and the transfers having been effected, those properties were no longer part of the estate of the deceased.

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John Gitata Mwangi and others v Jonathan Njuguna Mwangi and others Nairobi Court of Appeal civil appeal number 213 of 1997 (Akiwumi and Shah JJA, with Bosire JA dissenting) (Applications premised on section 26 of the Law of Succession Act should be founded on the fact that the applicant has not been adequately provided for rather than that the provision was unequal compared with what the other heirs and beneficiaries got from the estate.The conduct of the applicant is a reasonable factor to be considered by virtue of section 28 in considering reasonable provision.)

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CASE NO 337

The deceased died testate, leaving his estate to his wife and children from both his marriages. He appointed the children of his first wife the executors of his estate. There was no dispute as to the validity of the will, but the children of the second house were unhappy that the deceased apparently gave the children of the first house a share in the estate that was slightly larger than what the second house got. They brought an application under section 26 of the Law of Succession Act asking the court to give reasonable provision for them. The High Court ruled in their favour, and, apparently guided by customary law, held that the provisions made to the house ought to have been equal. The court then proceeded to redistribute the estate in order to achieve such equality. The other house appealed. In a majority judgement, the Court of Appeal differed with the High Court and held that customary law was of no application at all.The deceased enjoyed freedom of testator, and this freedom could only be interfered with by the court where there was evidence of unreasonable provision.The court found that the children of the second house got reasonable provision under the will, and they appeared to be complaining that the distribution of the estate was not equal. The court was also of the view that there existed good grounds for the deceased giving a relatively smaller share of the estate to members of the second house.The Court of Appeal also considered the share of the other respondents in deciding why they were given smaller shares in the estate.

AKIWUMI JA: An application such as this, it were to succeed, would not only affect the four executors of Mwangi Mbothu’s will and who are also beneficiaries under that will, but also other beneficiaries, such as their mother. However, though she was called to give evidence by the appellants, she was never made a party to the proceedings. In these circumstances therefore, any order that adversely affects her inheritance under her deceased husband’s will, might be improper. Another preliminary issue is the

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competency of the fourth and fifth respondents to bring the application before the High Court. Section 26 of the Law of Succession Act under which the application was brought, limits the right to bring such an application to a ‘dependant’ which in respect of the fourth and fifth respondents, is defined in section 29(b) of the Act to mean: ‘Such of the deceased’s ... grandchildren ... as were being maintained by the deceased immediately prior to his death:’

In his ruling on this point, the learned judge of the High Court made the following findings: ‘The finding whether or not a member of a class in section 29(b) was being maintained by the deceased will largely depend on the evidence before the court and the appreciation by the court of all the surrounding circumstances of the case including our cultural set up. In the present case, the deceased provided the land (capital) on which Wanjiku Gitata settled with her two children and on which she worked to make out a living for herself and her two children. It was that land which was her principal source of income on which she maintained her children.The land was the major source of her income and by providing the land, I reckon that she deceased was substantially though indirectly maintaining the fourth and fifth applicants.There is also evidence that before deceased allocated the five acre land to his daughter Wanjiku Gitata, she and her children were living in the deceased’s Tunini Farm and occupying one of the houses in the farm . Lastly, deceased bequeathed the 5 acres of land to his daughter and if she predeceased him, which is the case here, to the two grandchildren. It seems to me from the foregoing that Wanjiku Gitata and her two children were wholly dependent on the deceased for their survival which circumstance is crowned by the gift of the land to the two applicants. It is for those reasons that I find that the two applicants were being maintained by deceased immediately prior to his death.’

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But are these findings supported by the evidence given during the proceedings before the learned judge? I would say, no. The first and third respondents were the only ones who gave evidence for all the respondents. With respect to the maintenance of the fourth and fifth respondents, the first respondent, Jonathan, stated that: Wanjiku Gatitu is my late sister and mother of Samuel Gatitu (fourth applicant) and mother of Hellen Wambui – fifth applicant Samuel Gatitu 14 years old Hellen is 18 years old. Samuel Gatitu is primary school Hellen is in secondary school. They live with Hannah Wangari in Kabuko farm I pay for their school fees and maintenance ... Wanjiru Gatitu she was living in my father’s farm – Tariri farm in Ruaraka before she died. The farm is 105 acres. I was supporting my sister Wanjiru and her children Wanjiru Gatitu had no job ... ’

Jonathan appears to have sufficient money to spend not only on himself, but also on the school fees and maintenance of his nephew and niece. In her evidence, Hannah Wangari Minutia, the third respondent, briefly but more definitely, as to who was maintaining Samuel Gatitu and Hellen Wambui after the death of her sister Wanjiku Gatitu and at the time her father died, said: ‘My sister was looking after Samuel Gatitu and Hellen. After her death I took over the children my step mother Hannah Nyagichuhi was not looking after the children.’

In my view, the direct evidence given by the first and the third respondents do not support the conclusion that immediately prior to his death, the fourth and fifth respondents were being maintained by Mwangi Mbothu. It is true that he had made a gift of 5 acres of land to his daughter Wanjiku Gatitu which he subsequently devised to her in his will, but just as he could not follow the gift once made, so he could not,

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cultural set up, dictate to Wanjiku Gatitu what she should do with the land. If Wanjiku Gatitu what she should do with the land. If Wanjiku Gatitu chose, as the learned judge concluded to: ‘Make a living for herself and her two children.’

From this land which as the learned judge held: ‘Was her principal source of income on which she maintained her children?’

And frankly this was merely an assumption, as there was no evidence in support of this and indeed, the contrary is what appears to have been the position, then what she did what she chose herself, to do. In short, though it can be said that the land enabled her to maintain her children, it cannot, because of this and the evidence of Hannah Wangari, be said within the context of section 29(b) of the Act, that Wanjiru Gatitu’s children were after her death, being maintained by her father immediately prior to his death. Unlike section 33 of the Act which provides that in the distribution of certain categories of property in the case of intestacy, the law or custom applicable to the deceased’s community or tribe shall apply, section 29(b) of the Act is not saddled with any such qualifications. Even if it were, there was no expert evidence given to show that a grandfather is under Kikuyu custom, obliged to maintain his grandchildren. It follows then that the fourth and fifth respondents were not entitled to seek that reasonable provision be made for them out of Mwangi Mbothu’s net estate.

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I am now left to consider the application for reasonable provision made by the first, second and third respondents. But before doing so., it would be necessary to consider the factors which the High Court has to take into consideration when considering whether any order for a reasonable provision should be made and if so, what order. These are set out in the following paragraphs of section 28 of the Act: (a)

The nature and amount of the deceased’s property;

(b)

Any past, present or future capital or income from any source of the dependant;

(c)

The existing and future means and needs of the dependant;

(d)

Whether the deceased made any advancement or other gift to the dependant during his lifetime;

(e)

The conduct of the dependant in relation to the deceased;

(f)

The situation and circumstances of the deceased’s other dependants and beneficiaries under any will;

(g)

The general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant.

I had earlier made reference to the provisions of section 33 of the Act which specifically provides that in certain circumstances in the case of intestacy, the law or custom applicable to the deceased’s community or tribe shall apply. No provisions like that which could have been made to apply to sections 26 to 29 of the Act. Indeed, this omission in the Act is a clear indication that so far as the provisions of these sections of the Act are concerned, they are to be interpreted without being subject to the law and custom of the deceased. True the Judicature Act provides in section 3(2) thereof that:

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‘The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not inconsistent with any written law, and shall decide all such cases according to substantive justice without undue regard to technicalities of procedure and without undue delay.’

But sections 26 to 29 of the Act as they stand, make the relevant Kikuyu customary law, inconsistent with them. I would also like to allude to my judgement in the case of Mary Wambui Kabungua, Legal Representative of Kabugu v. Kenya Bus Service Limited, Civil Appeal Number 195 of 1995 (unreported) which dealt with the status of the written law vis-a-vis the common law, and which I find analogous to the status of the written law in this case the Law of Succession Act vis a vis Kikuyu customary law with respect to the application made by the dependants under section 26 of the Act. This is what I had to say: ‘My last comment relates to the relationship between the common law and the Limitation Act. Salmon, JA in his dissenting judgement in Cozens, expressed the view that only very clear words which did not exist in the English Limitation Act 1963, could take away a person’s fundamental rights, in the following way:

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‘I start from the point that the general rule of the law is that the courts will not make orders in legal proceedings affecting a party’s rights without giving that party an opportunity of being heard…To my mind very clear words would be required to take away fundamental rights which are ordinarily accorded by the law and indeed by natural justice.’ What is clear from this observation of Salmon, LJ, is the admission that statute can take away or limit fundamental rights or those given by the general law which can be described as the common law. It cannot therefore, be said that the common law has an unassailable status. If this is so, even where statute law and the common law are held to be of equal standing, then a fortiori, on the assumption that in Kenya, the common law is of a lower standing than statute law, statute law can make greater inroads into the common law. Although no very clear words to that effect, were employed in the English Limitation Act, it was held in Cozens that the clear intention apparent in the Act, and which would do, made inroads into the common law or the general rule of law, by providing in sections 1 and 2, an exception to the general rule that a party against whom an ex parte order has been made, can apply to the court which made the order to set it aside.’

To my mind, and having regard to the clear intention of section 26 – 29 (sic) of the Law of Succession Act as shown when compared with the provisions of section 33 of that Act, it cannot be said that section 3(2) of the Judicature Act grants unassailable status to Kikuyu customary law that may be regarded as relevant to the issues involved in this appeal. And so what may not be considered per se in the present case where there is a valid will of Mwangi Mbothu, is the Kikuyu customary law or practices concerning the fair or equal share of a deceased husband’s property among the houses of his polygamous marriages. Indeed, if this was not what the law was intended to be expressed in the Report of the Commission on the Law of Succession, there was nothing to stop Part III of the Law of Succession Act from stating this. As this part of the Act stands, there was, no matter what the Report of the Commission had expressed, a clear intention not to incorporate it into the Act. Nothing would have been easier to achieve if Parliament had wanted to do this.

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In order that this court may be enabled to come to a proper conclusion as to what order it should make, a dependant has the duty to give satisfactory evidence as to his past, present or future capital or income and his existing and future needs. Without this, the court will not be able to make any sensible order. Whether the deceased has made any advancement to the dependant and the circumstances of the deceased’s other dependants are also factors to be considered. The general circumstances of the case including the deceased’s ascertainable reasons for not providing for the dependant must also be considered.Which of these factors will play a vital role in their combined effect, depends on each particular case. The evidence on behalf of the second respondent, Peter Kabata, in support of his application was pathetic. Though according to the third respondent, Hannah Wangari, he was aware of the proceedings and indeed, was the only one who had been left out of his father’s will, he chose not to present any evidence himself in support of his application. He left this to this to the first respondent, Jonathan, and his sister Hannah Wangari. None of them gave any worthy evidence as to Peter Kabata’s needs and financial standing, which will enable the court to come to a sensible decision as to his needs. All that Hannah Wangari whose evidence on this issue was better than Jonathan’s, said, was that: ‘Peter Kabata lives in Limuru in the same farm. He derives his livelihood from the farm.’

The ascertainable reason why Peter Kabata was left out of his father’s will was given by no less a person than his own sister Hannah Wangari herself. She said that: ‘My brother Peter Kabata and Jonathan were not on good terms with my father most of the times.That is especially so with Peter Kabata. Peter Kabata drinks . He had the disagreement with my father because of his heavy drinking.’

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It does not come to me as a surprise, that Peter Kabata was left out of his father’s will as a direct beneficiary. In the very first devise in his father’s will, and because Peter Kabata could not be trusted not to dissipate what was devised or bequeathed to him, he was made a trustee of 14 acres of land at Kabuku Farm in Limuru valued at KShs 12 880 000-00, in trust for his wife and children. As Jonathan said: ‘My brother Kabata started living in the farm before my father died. Three of the children of Peter Kabata live at his house. The other two are at primary school. Kabata has lived in the farm for about 4 years.’

For the reasons given above, no order for reasonable provision should be made in favour of Peter Kabata. As for Hannah Wangari, she may appear not to really know what she wanted when she said for inapplicable reasons, that she wanted her children as opposed to herself, to live like other children without stating which children,. But her main reason would seem to be a claim by herself and her sister and brothers to half of the deceased’s estate, on the grounds, presumably according to Kikuyu customary law, that they were the children of the deceased’s second polygamous wife. Hannah Wangari stated her position as follows:

‘I work in the farm. I grow maize, beans, potatoes and the like. I also plant Napier grass. I have 5 dairy cows I get school fees from proceeds of the farm. My house is a 3 bed roomed timber house. It was built in 1989 my late father bought the building materials for me. Chege can go to school if I get help. I am claiming half share of the deceased estate as he had

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two wives (houses) ... I am not claiming the half share alone. It is on behalf of my mother’s children ... I do not know how much money I need to live well. My wish is to have my children live well like other children.’

Furthermore, if ‘the general circumstances of the case’ is to be considered, it will be seen that only land was devised to her, her sister and stepsisters. The 5 acres of land devised to her and valued at KShs 4 600 000 is of the same value as the land devised to her deceased sister Wanjiku Gatitu and stepsisters Susan Mbaire Maina and Leah Wambui Mwema. Only her stepsister, Rose Njoki Mbothu, was devised which was valued at KShs 7 360 000. In my view the learned judge of High Court was not justified in making the reasonable provision order that he made in favour of Hannah Wangari.

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As regards the first respondent, Jonathan, it cannot be said that his deceased father did not make a reasonable provision for him in his will. Jonathan himself, had in his evidence, said that he was paying the school fees for, and maintaining the fourth and fifth respondents. This may not be true, but he is bound by it. This means that even before his father died, in a position without suffering any undue hardship to maintain these two respondents. He also owns a car. Jonathan, had in 1983, emigrated to Australia where he lived with his Australian wife. He maintained little contact with his father and brothers and sisters. Indeed, he said that he telephoned his father only 3 – 4 times a year. But this is doubtful because he could not even remember his father’s telephone number.Yet nine years later, when his father made his will, his father remembered him and devised to him 80, 868 acres of land valued at KShs 30 255 000 which can earn him a great deal of money and which Jonathan failed to show was an unreasonable provision. Indeed, in his evidence and that of his sister, Hannah, their reason for bringing their application was not that no reasonable provision had been made for them under their father’s will, but simply that they being children of the Mwangi Mbothu’s second wife, they should have an equal share of their father’s property. This alone, which may have been relevant if their father had died intestate, renders the application of Jonathan and Hannah fatally flawed. Apart from this, there was bad relationship between Jonathan and his father, as narrated uncontradictedly, by his sister, Hannah Wangari, which at one time, had led to his father himself, initiating proceedings that led to Jonathan’s internment at a borstal institution. Furthermore, he cut off contact with his father and other members of his family after he left for Australia. According to his evidence in cross-examination, he came to Kenya twice and that was only after his father died, no doubt, only to see how much money he could obtain out of his father’s estate. He did not even know that his sister, Wanjiku Gatitu, and his own father had died because according to Hannah Wangari, she could not get Jonathan to inform him of these deaths. Indeed, according to Jonathan himself, he learnt of his father’s death some three months after the event ‘through a person who visited Australia.’ He certainly had cut off ties with his people in Kenya. In these circumstances it was generous of his father to have left him property worth KShs 30 255 000, which is no mean devise and which Jonathan has not shown to be an unreasonable provision in the light of his needs let alone his relationship with his father. I come to the conclusion that the appeal must succeed and the deceased’s will as originally make, restored. By the same token, the cross-appeal is dismissed. As Shah JA agrees, the judgement of the court shall be that the appeal is allowed with costs.

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SHAH JA: The respondents to this appeal, by an application dated 27 February 1995 made by way of a chamber summons taken out under section 26 of the Law of Succession Act (the Act) and rule 45 of the Probate and Administration Rules, sought for the following orders against the present appellants: 1.

That the respondents do furnish to the applicants a list of the assets and liabilities of the estate and accounts pertaining to the same.

2.

That no grant of representation of the estate of Mwangi Mbothu who died on 12 December 1993 having been confirmed, such reasonable provision be now made for the applicants as dependants of the deceased out of his net estate as the court thinks.

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That application came up for hearing before the superior court (Githinji J). on 8 June 1995 the learned judge ordered that the appellants do furnish a list of assets and liabilities of the estate and also accounts pertaining to those assets to be agreed upon between counsel to the parties and he further ordered that viva voce evidence be given in support of the application limited to the conduct of the respondents to the deceased. It is a somewhat unusual order as rule 45(5) of the Probate and Administration Rules provides for the court having regard to the information and particulars referred to in sub rule (2) and also such evidence as may be adduced as to the conduct of the applicant in relation to the deceased as required by paragraph (e) of section 28 of the Act which paragraph envisages that the court shall have regard to (upon the hearing of an application under section 26 of the Act for reasonable provision) the conduct of the dependant (applicant) in relation to the deceased. I say ‘somewhat unusual’ as there appears to be no provision for the taking of such evidence viva voce. The evidence which was taken went beyond the said limit set by the learned judge. There was however no objection thereto and there is no prejudice suffered by any of the parties in regard thereto.There is one golden rule, and that is, that evidence given viva voce and fully tested by cross-examination places the court in a better position to evaluate the same and I see no harm in such evidence being given viva voce. Coming back to evidence viva voce, as recorded, it becomes obvious that the respondents were claiming not on the basis of there being no reasonable provision made for them but on the basis that the testator ought to have divided the estate equally between the two houses, that is, between the children of both wives of the deceased including the widow who is living. Sections 26, 27 and 28 of the Act cater for provision for dependants of the deceased not adequately provided for by the will or on intestacy. This section reads: ‘26.

Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on an application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased estate effected by will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of both the will, gift and law, is not such as to make reasonable provision for the dependant, order that such reasonable provision as the court thinks fit shall be made for the dependant out of the deceased’s net estate.

27.

In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependants, or to make such other provision for him by way of periodical payment or lump sum, and to impose such conditions as it thinks fit.

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In considering whether any order should be made under this part, and if so what order, the court shall regard to: (a)

The nature and amount of the deceased’s property;

(b)

Any past, present or future capital or income from any source of the dependant;

(c)

The existing and future means and needs of the dependant;

(d)

Whether the deceased had made any advancement or other gift to the dependant during his lifetime;

(e)

The conduct of the dependant in relation to the deceased;

(f)

The situation and circumstances of the deceased’s other dependants and the beneficiaries under any will;

(g)

The general circumstances of the case, including, so far as can be ascertained, the testator’s reason for not making the provision for the dependant.’

... it can be seen straight away that the learned judge, instead of making a reasonable provision, where and if necessary, has re-written the will of the deceased. In my view it is not the function of the court to re-write the wills of deceased persons. Section 26 of the Act provides only the power to make reasonable provision for a dependant who has not adequately been provided for in the will of the deceased, for which purpose section 27 of the Act gives discretion to the judge even to give a specific share of the estate to the dependant or to make such other provision for him by way of periodical payments or a lump sum and to impose such conditions as the court thinks fit subject to the guidelines laid down in section 28 of the Act.

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I will first deal with the case of Jonathan Njuguna Mwangi, the first respondent, and in doing so I will keep in mind the testamentary freedom of the testator. Jonathan is the first son of the deceased by Wambui. Jonathan inherited some 45 acres of land parcel number 6909/4. In his affidavit filed in support of the application for reasonable provision he does not say that he has emigrated to Australia, is an Australian citizen or that his Australian wife is a pharmacist. He is talking on behalf of the House of Wambui complaining that the House of Nyagichuhi has had a more favoured inheritance from the estate of the deceased. He is a citizen of Australia; he works in Australia as a fabrics printer and also as a forklift driver. His wife who is a pharmacist earns about 45 000 Australian dollars a year. He confirmed that the deceased accumulated most of his wealth when his (Jonathan’s) mother was away. He left for Australia in 1983 and since then had never contributed to his Kenyan family’s welfare. From the tenor of his evidence it is clear that he had not kept in enough touch with his family. His evidence is to the effect that his mother’s house ought to get half of the deceased’s estate. The claim for reasonable provision, for himself, is to my mind, contrived. a man who is an Australian citizen working in Australia, married to an Australian pharmacist and still getting a share of a farm worth more than Shs 30 000 000 cannot complain of being unreasonably provided. He needs, he says, 100 000 Australian dollars a year in addition to what his wife earns. The true purpose of his application was to achieve equality in inheritances by the two houses. He says so, as much. For the purposes of arriving at a reasonable figure for reasonable provision under section 26 of the Act it must be considered (in Jonathan’s case) that he had not really kept in touch with his father (save for sending

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some medicines, allegedly) and in my view the learned judge was not entitled, the on facts before him, to decide that the deceased’s failure to bequeath to Jonathan properties equal to what he bequeathed to sons of Nyagichuhi, amounted to no ‘reasonable provision.’ It is for the testator to decide what to give to his recalcitrant son. Looking at the matter in any manner Jonathan had no basis for saying that his father made no reasonable for him. The deceased was generous enough to bequeath to him a coffee farm worth more than KShs 30 000 000 in all the circumstances. In saying so I take into account the length of separation between Jonathan and the deceased and other factors, I have already gone into. Jonathan’s application for a reasonable provision amounts to greed rather than a search or quest for justice to seek reasonable provision for maintenance as an alleged dependant. I come now to the application for ‘reasonable provision’ by the second respondent, Peter Kabata Mwangi. Peter never swore an affidavit in support of his application for ‘reasonable provision.’ Nor did he give evidence although he could have done so. It is for an applicant to satisfy the court that the testator made no reasonable provision for him. Although section 26 of the Act allows an application by or on behalf of the dependant, in my view the words ‘on behalf of ’ are used for the benefit of minor dependants who themselves have no locus standi to so apply not being adults. Looking at the matter in another way, a grown up ‘dependant’ who does not care to speak for himself is not entitled to any relief. It was not enough for Peter to speak through Jonathan or Anne Wangari Kinuthia. Jonathan, did not, in any event, set out the needs or requirements of Peter. He simply said: ‘We are asking for a reasonable provision. We would like to have some of the properties producing income so that we can be able to support ourselves.’

Later on, in cross-examination he said:

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‘My brother Kabata has no income. He has leased the farm bequeathed to him. I do not know how much he gets from the lease. We want to share the estate equally with everyone else like the other house. What we want for our house is to get an equal share with other houses if possible.’

Anne Wangari Kinuthia, Jonathan’s sister, did not talk of any alleged needs of Peter, her brother. She said: ‘I am claiming half share of the deceased as he had two wives (houses). I have a brother called Jonathan Njuguna Mwangi. He lives in Australia. I am not claiming half share alone. It is on behalf of my mother’s children. Peter Kabata lives his livelihood from the farm. He is married with four children.’

In cross-examination she said: ‘My brother Peter Kabata and Jonathan were not in good terms with my father most of the time.That is especially so with Peter Kabata. Peter Kabata drinks. He had disagreement with my father because of heavy drinking.’

So that even if the respondents could file a section 26 application on behalf of Peter Kabata there is nothing on record to show what would have been the reasonable provision for Peter Kabata. It is for a party to prove his case. He or she cannot simply stand by and hope that the court will give him something. Yet the learned judge proceeded to ‘bequeath’ to him lands worth KShs 40 000 000. Obviously the deceased (the testator) was aware of Peter’s habits. It must be for that reason that he bequeathed

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14 acres of LR Numbers 164/9 and 164/19 (Kabuku farm) to Peter Kabata in trust for his wife and children. Land as was given cannot be sold off by the trustee and the testator must have the fact of Peter’s drinking habits in his mind. I would set aside the orders made by the learned judge in favour of Peter Kabata, the second respondent. I come now to the claim in the superior court by Samuel Gatitu and Hellen Wambui. There is evidence from the third respondent that it was their mother who was providing them with their daily needs. The learned judge said: ‘Indeed there is no evidence that the deceased was directly maintaining the fourth and fifth applicants (fourth and fifth respondents here). After the death of their mother the fourth and fifth applicants have been under the care of the third applicant (Hannah Wangari Kinuthia). The first wife of the deceased concedes that Wanjiku Gitara moved to the 5 acres she was given by the deceased in 1989 and that she had been living in that farm before she died in 1993.The same land was bequeathed to her and as predeceased the testator, the two children by virtues of clause 3(m) of the will are the beneficiaries of the 5 acres. Even if the deceased had died intestate,Wanjiku Gitara by virtue of section 41 of LSA (the Law of Succession Act) could have been entitled to the share of her deceased father as she predeceased him leaving two children by virtue of the rule of substitution enacted in section 41 of LSA would have been entitled to from the net intestate estate. So, clause 3(m) of the will makes the fourth and fifth some of the heirs of the deceased estate just as they would have been heirs of the deceased estate by the rule of substitution had the deceased died intestate.’

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Then the learned judge after considering the effect of the words ‘were being maintained by the deceased immediately prior to death’ and after not finding any definition of those words proceeded to give a meaning of those words. The learned judge said: ‘The words in our statute are not qualified by such words as, continuous, direct or substantial. The finding whether or not a member of a clan in section 29(b) was being maintained by the deceased will largely depend on the evidence before the court and the application by the court of all surrounding circumstances of the case including our cultural set up. In the present case, the deceased provided land (capital) on which Wanjiku Gitara settled with her two children and on which Wanjiku worked to eke out a living for herself and her two children,. It was that land which was her principal source of income on which she maintained her children.The land was the major source of her income and by providing the land; I reckon that the deceased was substantially though indirectly maintaining the fourth and fifth applicants.’

With the greatest respect to the learned judge, I think he ventured into realms of conjuncture. Wanjiku Gatitu died in 1993. She was given land by the deceased during her life time. She maintained her children out of the income of that land. This factor does not suggest, to my mind, in any way, that her children were dependants of the deceased at the time of his death. If one was to stretch the meaning of the word dependant in that manner there would be no end to such dependants. That would mean that if a person gave land, during his lifetime to, say, his granddaughter for use, the great-grandchildren would be termed as dependants of the testator before his death. Whilst I appreciate the cultural values of the Kikuyu community I cannot stretch the law to give dependency rights to persons who were in fact not dependants of the testator just before he died.That would bring the concept of the more extended family into the Act which the Act did not intend.

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What the learned judge did was, in effect, to act as the testator himself and he substituted for the will what he thought the testator should have done. That cannot be so. I am certain in so doing the learned judge was influenced by the Report of the Commission on the Law of Succession. It is trite law that what is important is the law itself as it stands worded and not the recommendations upon which such law came into existence.The learned judge adopted the idea of ‘fair distribution’ from this report. Now, ‘fair distribution’ cannot be equated to ‘reasonable provision.’ I accept Mr Nagpal’s argument to the effect that the court found or invented a new test and therefore varied what the court thought was an irresponsible will. It is not an irresponsible will. The testator appears to have considered all the circumstances in which his children grew up, how they helped him, how his wives helped him or did not. The circumstances under which a court can interfere with the freedom of testamentary disposition are well set out in the case of Re Inns, Inns v Wallace and others [1947] 2 All ER 656. In that case the Chancery Division Court in England was considering the widow’s plea that the provision made for her by the will was not reasonable because it was insufficient to enable her to live in the matrimonial home as the testator had intended her to do. Wynnarry J (as he then was) said at page 311:

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‘The Act is not designed to bring about any such compulsion. It proceeds on the postulate that a testator should continue to have freedom of testamentary disposition, provided that his disposition as regards dependants should be capable, having regard to all the circumstances of being regarded by the court as reasonable . From this it follows that the jurisdiction is essentially a limited jurisdiction ... The previous decisions clearly establish that the jurisdiction is one which should be cautiously if not sparingly used. The main difference between this and earlier cases is that this, so far as the reported cases are concerned, is the first one in which an estate of this magnitude has had to be considered. Notwithstanding the size of the estate, however, the same principles must be applied and, applying those principles, it appears to me impossible to say that the provision which the testator has made for his widow is unreasonable, merely because there appears from the evidence and on the face of the will to be an anticipation by him – or even an intention on his part – that his widow should continue to live in the marital home, in which, for the purpose, he gives a life interest followed by a gift income, which in any event, proves insufficient to enable her do so.’

I say, especially, in the case of Jonathan, that the testator, in all circumstances, has been generous to him. The question simply is whether the will or the disposition has made reasonable provision and not whether it was unreasonable on the part of the deceased to have made no larger provision for Jonathan. The deceased was fully aware of Jonathan’s ‘contribution’ to the fortunes of his estate. I am unable to agree with Dr Kuria when he suggested that we should deal with the matter such as this one on the basis of North v South that is the richer world v the poorer world. We must go by our law. The act brought all Kenyans within its ambit leaving the option to certain communities to will away their estates as per their religions. We cannot get away from the wording of sections 26, 27 and 28 of the Act. The concept of two houses or houses introduced by Dr Kuria can only apply to intestacies. Dr Kuria relied heavily on the decision of this court in the case of Ndolo v Ndolo civil appeal number 128 of 1995) (unreported) to say that there should be fair distribution of the estate. The court said:

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‘whilst the deceased was entitled to dispose of his property as he pleased, he was not entitled to leave his first two wives Alice and Rose without any reasonable provision for their maintenance,. As we have said elsewhere in the judgement of the Commissioner of Assize Mr A B Shah, now a member of this court – made some provisions for the two women but as the learned trial judge pointed out in her ruling those provisions came to nought and Alice was said to have died in terrible poverty.We cannot allow that to continue and the only way we can think of to make reasonable provisions for all the deceased’s lifetime dependants is to do so according to the three houses, each house representing a widow.’

The Ndolo appeal was in regard to whether or not the will of the late General Ndolo was forged or not. The learned trial judge (Owuor J as she then was) held that the deceased never signed the will and that being so the deceased died intestate. The appeal against her decision was limited to upsetting her findings as regards ‘forgery’ of the will. Having done so the court did not stop there. At the invitation of counsel the court decided to put an end to the ‘unfortunate wrangling’ and proceeded to divide the estate as it thought fit but nevertheless the court pointed out: ‘This court must, however recognise and accept the position that under the provisions of section 5 of the Act every adult Kenyan has an unfettered testamentary freedom to dispose of his or her property by will in any manner he or she sees fit. But like all freedoms to which all of us are entitled the freedom to dispose of property given by section 5 must be exercised with responsibility and a testator exercising that freedom must bear in mind that in the enjoyment of that freedom, he or she is not entitled to hurt those for whom he was responsible during his or her lifetime.’

I have already pointed out what I think of Jonathan’s claims. It was, in all circumstances, just a greedy claim. Peter Kabata Mwangi gave no evidence as to his alleged entitlements. A court cannot help a litigant who says nothing. Even those who spoke for him did not say what reasonable provision should be made for him.

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I have said enough about Samuel Gatitu and Hellen Wambui. They had no locus standi to claim reasonable provision. The upshot of all this is that I would allow the appeal with costs in its entirety and restore the deceased’s will to its original stand. For the same reasons the cross-appeal fails. I would dismiss the cross-appeal with costs. BOSIRE JA (dissenting): I earlier attempted to set out the parameters of the phrase reasonable provision. I said, inter alia, that the circumstances of each case must be borne in mind in discerning what would or would not be considered as reasonable provision. The Act is an attempt to codify generally the Law of Succession of Kenya. It cannot therefore, be applied without qualifications as the circumstances render necessary, more so in cases which involve the various tribes in this country. As I stated earlier paragraph 28(g) of the Act, was included to accommodate the disparities in the cultural backgrounds of the various tribes and their customs and traditions. My view has support of the provisions of section 3(2) of the Judicature Act, Chapter 8 Laws of Kenya, which provides as follows: ‘The High Court, the Court of Appeal and all subordinate courts shall be guided by African Customary Law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent

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with any written law, and shall decide all such cases according to substantive justice without undue regard to technicalities of procedure and without undue delay.’

What the above provision entails is that customary laws may be invoked in certain cases as a guide in determining certain issues in a given civil case provided that it is not repugnant to justice, morality or inconsistent with any written law and also bearing in mind the overriding consideration, namely, doing substantial justice between the parties. Neither the trial judge nor counsel for the parties made any specific mention of that wise provision. Wise, because currently most communities in Kenya are still very much attached to their personal laws, customs and traditions, which, to my mind, have many principles of manifest justice and good sense. The application of those principles has been left to the judicial discretion of the courts, and which discretion is limited only by the factors mentioned in section 3(2) aforesaid.The learned trial judge appears to have had those principles in mind when he remarked, in his judgement, as follows: ‘Section 26 of the Act as I have attempted to show has its distinct identity and has incorporated the African way of life it would be against the policy of the Act to look behind it.The Kikuyu Customary Law can of course be introduced (see rule 64 of the Probate and Administration Rules) but not when the intention is to defeat the provisions of the Statute Law.’

The sanction to be guided by African Customary Law is not in rule 64, aforesaid, but section 3(2) of the Judicature Act, aforesaid, and section 28 of the Law of Succession Act, more specifically section 28(g). In the foregoing circumstances, contrary to the submissions made to us by Mr OP Nagpal who with Messrs Kirumba Mwaura, and Githu Muigai, appeared for the appellants, personal laws and customary practices in as far as they are relevant have a bearing in determining the issue of reasonable provision, unless of course they are disqualified on account of repugnancy. ***

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19.5 NATURE

OF THE

PROVISION

Under section 27 of the Law of Succession Act, the provision could take the form of a lump sum payment, payments in instalments or the allocation of a specific asset. Section 27 says as follows: ‘27.

In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependants, or to make such other provision for him by way of periodical payment or lump sum, and to impose such conditions as it thinks fit.’

Cases numbers 338 and 339 demonstrate the application of section 27 of the Law of Succession Act in terms of the forms that the provision takes or may be ordered by the court. Cases number 35 and 320 are also relevant.

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In the Matter of the Estate of Clement Albert Etyang (deceased) Nairobi High Court succession cause number 1099 of 2002 (Koome J) (The court may order that the provision that it has determined for a dependant be paid in lump sum) CASE NO. 338

The application, brought under sections 26 and 29 of the Law of Succession Act, was by the administrators who sought the court’s determination of a minor grandson’s provision from the estate of his deceased grandfather. The court, basing its decision on the provisions of section 28 of the Law of Succession Act, held that a lump sum payment of KShs 400 000 be made out to the minor from the estate, and the same was to be held in a trust account for the benefit of the minor.

KOOME J: This application is brought by the administrators of the deceased estate. They are seeking for the determination of the apportionment of the deceased estate which should be given to Elvis Masiga Etyang who was wholly dependent upon the deceased.The dependant is now aged 4 years old. All the parties agree that the minor is a dependent of the deceased but the administrators cannot agree on what percentage should be apportioned to the minor and hence this application.

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The deceased estate is worth about Kshs. 3 million. As at the time the deceased met his death, he used to maintain this child who was living with him. The minor was the deceased grandson, the son of his daughter Denise Etyang. This child was born when Denise was also a minor. The deceased therefore took total control as the daughter went back to school. Denise is currently in college and has no means to support the minor. I was told that there is some money in the bank account in a fixed deposit account amounting to KShs 1 000 000 and shares quoted in the Nairobi Stock Exchange amount to KShs 350 000. In addition there are agricultural properties and commercial property whereby KShs 10 000 per month accrues as rent. Other beneficiaries include two minor children who also require care and aged between 14 and 10 years of age respectively. There are also young adults who are still in school or college going. There are certain issues to consider when the court has been called upon to make a provision for a dependant and these are provided for under section 28 of the Law of Succession Act.

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Firstly, the court is given complete discretion to order a share of the estate to be given to a dependant or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions as it may deem fit. In so doing, the court must take into consideration (a)

The nature and amount of the deceased’s property.

(b)

Any part, present or future capital or income from any source of the dependant.

(c)

The existing and future means and needs of the dependant.

(d)

Whether the deceased had made any advancement or other gift to the dependant during his lifetime.

(e)

The conduct of the dependant in relation to the deceased.

(f)

The situation and circumstances of the deceased’s other dependants and the beneficiaries under any will.

(g)

The general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant.

Having the above circumstances in mind I find that the minor child’s future needs as well as regards his welfare and education should be provided for.This child has another 15 or more years to require constant care and provision.

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Accordingly taking all the matters in totality I am of the opinion that KShs 400 000 should be reasonable provision for the minor child. If the said sum could be invested in a trust account to be used only for the welfare of the minor it might secure his future. I have also taken to consideration the fact that the mother who is also a beneficiary of the estate can contribute to the minor’s needs.

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In the Matter of the Estate of Benson Joseph Omondi Awinyo (Deceased) Nairobi High Court succession cause number 1183 of 2002 (Koome J) (In making provision for the dependant the court takes into account the needs of the parties, any inter vivos gifts and any nominations)

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CASE NO. 339

The deceased had died intestate, and the application for dependency under section 26 of the Law of Succession Act was by his father seeking provision for himself and his son who was allegedly also dependent on the deceased for his college fees. The father claimed that he had been dependent on his late son for clothing, farm inputs and a monthly allowance. The widow was the beneficiary with respect to pension funds and the proceeds of an insurance policy, while the mother was the beneficiary of the savings held with a cooperative society. It was contended by the widow that the applicant, the mother of the deceased and their son were not so needy as they had their own pensions, were involved in commercial farming and were receiving support from their other children. The widow said that she had expenses to meet, like rent, transport, food and medical care. The court considered all these factors before making provision for the dependants of the deceased.

KOOME J: The court has discretion to order that a specific share of the estate of the deceased property be given to the dependant but in doing so the court should take into account certain circumstances such as those provided under section 28 of the Law of Succession. (a)

The nature and amount of the deceased property.

(b)

Any past, present or future capital or income from any source of the dependant.

(c)

The existing and future means and needs of the dependant

(d)

Whether the deceased had made any advancement or other gift to the dependant during his lifetime.

(e)

The conduct of the dependant in relation to the deceased.

(f)

The situation and circumstances of the deceased’s other dependants and the beneficiaries under any will.

(g)

The general circumstances of the case, including, so far as be ascertained, the testators reasons for not making a provision for the dependant.

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I have taken into consideration the fact that the applicant and the deceased mother are pensioners. They have other children apart from the deceased from whom they can continue to depend on. I have also taken into account the circumstances of the petitioner, especially the position of her health and the possible implications arising out of the cause of the death of her husband. I have also taken into cognisance that the applicant is in possession of the motor vehicle KZS 807 which can be regarded (whichever way one looks at it ) as a gift inter vivos and the fact that the deceased had appointed his mother as beneficiary of the Cooperative Savings amounting to KShs 214 662. I therefore order that a first sum of KShs 100 000 be allocated to the applicant as dependency in addition to the vehicle KZS 807. The estate is therefore allocated as follows: (a)

Motor vehicle Reg KAK 579C, pension Kshs 141 874, Group life KShs 452 209-50. Total KShs 594 083-50 to petitioner.

(b)

KShs 215 662 to Nellie B. Osok

(c)

Motor vehicle KZS 805 and Kshs. 100,000/= to the applicant Philip Osok Awino.

CHAPTER 20 DISCLAIMERS 20.1 DISCLAIMERS

AND VARIATIONS

AND VARIATIONS

A beneficiary or heir cannot be compelled to take a gift or share in the estate of the deceased. A beneficiary or heir who does not wish to take a gift or share is entitled to disclaim or renounce the gift or share. Case number 335 is an illustration of a disclaimer of a right to a share in the estate. Cases numbers 134, 135, 136 and 137 also deal with similar matters. In re Clout and Frewer’s contract (1924) 2 Ch 230 (Lord Buckmaster)

CASE NO. 340

(A disclaimer may be express or implied from the conduct of the beneficiary)

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An executor-trustee-beneficiary survived his testator for nearly thirty years without proving or acting or applying for or receiving a legacy given to him in his official capacity. He had, however, not formally renounced or disclaimed. It was held that his conduct amounted to a disclaimer. LORD BUCKMASTER: In In re Gordon (6 Ch 531, 534) an executor-trustee renounced probate and did not in any way act as trustee, but he did not execute a disclaimer. He died three years after the testator without acting. Jessel MR dealt with the disclaimer point separately as follows: ‘I think there was sufficient evidence of disclaimer. My reasons for saying so are these. In the first place we have this that he never acted; that is a very strong circumstance; a man lives three years and does not act at all. It is a strong proof that he does not intend to act.’ ... This shows that the mere fact that a trustee does nothing for three years is strong, though not conclusive, evidence that he does not intend to act, . Surely, a longer period of inaction would be stronger evidence. In In re Birchall (40 ChD) an executor-trustee Ashton never proved or acted in the trusts of the will, and there was evidence that he had told the beneficiaries that he would do neither. But he never formally renounced or disclaimed. Nine years after the testator’s death the sole acting trustee died, and the beneficiaries brought an action against Ashton in the palatine court for the appointment of new trustees. A few days later Ashton purported to appoint Healey a new trustee with himself, and Healey was then added as a defendant. Ashton was not called by either side, but Bristowe

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VC held that the evidence of his non-acting and his statement was enough to prove disclaimer, and that his appointment of Healey was void. On an appeal brought by Ashton and Healey, Cotton LJ said: ‘it is not necessary to say what my conclusion might have been if the evidence had come before us in the first instance. There was some evidence in favour of the conclusion at which the Vice-Chancellor arrived, that Ashton had never acted in the trusts or accepted the office of trustee, and he was not put into the witness box and asked whether he had ever acted. It is impossible for us in this state of circumstances to reverse the decision of the Vice-Chancellor on this point.’ Lindley LJ said: ‘I am of the same opinion. There was evidence that Ashton had not acted, though he was not asked in the witness box whether he had done so. But the Vice-Chancellor had all the evidence before him, both words and conduct, and he came to the conclusion that Ashton had disclaimed the trusts, and I think I should have arrived at the same conclusion ... All we know is that he said in the conversations, which were proved, that he had not accepted the trusts, and he was not asked in the witness box whether he had acted .’ lopes LJ was of the same opinion., and said : ‘It was argued that there was no evidence of anything but conversation . But the subsequent conduct of Ashton in not acting for nine years must be taken into account. On the whole evidence I am of opinion that the Vice-Chancellor was justified in coming to the conclusion that he arrived.’

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In the present case Crick survived the testator for nearly thirty years without proving, acting or applying for or receiving his official legacy. In the circumstances I think that is sufficient evidence that he never intended to act, and disclaimed the trusts.

PART EIGHT THE GENERAL PRINCIPLES OF AFRICAN CUSTOMARY AND ISLAMIC LAWS OF SUCCESSION Prior to the introduction of English law of succession, which found its way into the modern Kenyan legal system through legislation, the law of succession governing the local population was either African customary law or Islamic law depending on the religion and culture of the deceased person.The principles governing devolution of property according to these two systems of law continue to apply to some estates in Kenya by virtue of section 2 of the Law of Succession Act.

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Where an estate is to devolve according to the rules of the customary law, the cases in Chapter twenty-one will provide a useful guide. In cases where the deceased dies a Muslim the principles stated in the cases in Chapter twenty - two will generally apply.

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CHAPTER 21 AFRICAN CUSTOMARY LAW

OF

SUCCESSION

21.1 DISTRIBUTION DURING LIFETIME A father was allowed at customary law to distribute the bulk of his estate during his lifetime. Case number 341 illustrates the position under Kikuyu customary law. Karanja Kariuki v Kariuki [1983] eKLR (Madan, Potter and Kneller JJA)

CASE NO. 341

(Property of a Kikuyu man could be distributed during lifetime to his children, or he could give directions on the administration and distribution of his property shortly before his death)

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The deceased died in 1964, and customary law applied to his estate. The dispute was between a son of the deceased, on one hand, and his mother and brothers, on the other. The court stated the customary law position on the distribution and administration of the property of an African under customary law. KNELLER JA: Now, by custom, a Kikuyu father has to distribute his land among his heirs during his lifetime if possible, and usually does so. This often happens where a son marries and it counts as that son’s share if his father has not revoked the gift before he dies. (See Restatement of African Law: Kenya: 2 Succession by Eugene Cotran, 1969, (1 ed) page 15). He may make a will in old age or on his death bed and the only formalities required are that he must say before the elders of his family (mbari) and of the clan (muhiriga) and close friends just who will be the administrator (muramati) of his estate and to whom each item of it shall go (op cit pages 2 and 15).

21.2 DISTRIBUTION UPON INTESTACY Distribution upon intestacy was patrilineal among most African communities. The property passed to the male children of the deceased, except that in some communities unmarried daughters were provided for. Cases numbers 342, 343, 344, 345 and 346 illustrate the position that under African customary law distribution of property upon intestacy followed a patrilineal pattern, with exception for unmarried daughters. In all the matters, the intestate died before 1 July 1981.

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Kanyi v Muthiora [1984] KLR 712 (Kneller JA Chesoni and Nyarangi AJJA)

CASE NO. 342

(Under Kikuyu customary law, land is inherited by sons to the exclusion of married daughters. Unmarried daughters are allowed to inherit land; where such a daughter has no children her share is for the remainder of her life; if she has an illegitimate male child then that child can inherit her share). The dispute was between an unmarried daughter and her stepmother over inheritance rights to land belonging to her deceased father. The Court of Appeal held that an unmarried daughter was entitled under Kikuyu customary law to a share of her late father’s estate ; if she had a male child then such child would thereafter be entitled to inherit her share.

KNELLER JA:The first issue in the appeal, to my mind, is whether or not the respondent, who is an unmarried woman with children, is entitled by the customary law of the WaKikuyu to inherit a portion of the land that her father owned and did not distribute before he died.

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Muthiora, it will be remembered, died intestate leaving one widow, the appellant. He did not dispose of any of his land before he died. The appellant chose not to return to her father’s home or be inherited by a brother of Muthiora but to remain in Muthiora’s ‘house.’ This being so, according to Cotran’s Restatement of African Law: 2 Kenya The Law of Succession, First Edn., 1969, pages 11-15 the appellant as Muthiora’s widow had a right of use during her lifetime of the land left by her husband. had the respondent’s mother, Muthiora’s first wife survived Muthiora she and the appellant would have shared out Muthiora’s land equally, provided she too, remained in Muthiora’s house. When the widow dies the land belonging to Muthiora which she has had use of during her life and any land she has acquired privately will be divided between her sons by Muthiora and any sons she may have had by a levirate union after Muthiora’s death or in the absence of any sons the land of Muthiora goes back to Muthiora’s father if he is alive or if he is dead Muthiora’s full brothers or if there are none his half brothers and so on. Daughters of Muthiora receive no share at first but if they grow up and remain unmarried they are allocated a plot by the muramati.Then when they died, if they were still unmarried, all that they owned including their lands are divided between their sons and if there are none by her father, or if he is dead, her brothers or in the absence of any of those then her half brothers and so forth. The respondent’s mother died before Muthiora did so she never had the use of any share of Muthiora’s land for her life which the respondent and her sisters if they remained unmarried could have the use of the land for their lives.

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This is what Cotran culled from the Kikuyu elders before 1969 but since then the land which the clan can allot has shriveled away to almost nothing, many Kikuyus have been settled elsewhere, land adjudication has relentlessly re-ordered their system of land tenure so that by mid-1969 when Muli J recorded evidence from witnesses who claimed some knowledge of the customary law on all this there was some variation of the pre-1969 rules. Basically, however, there emerged from the evidence two simple rules. The respondent as a healthy unmarried daughter with children was entitled to a share of the lands her father left when he died and her children, even her sons, could not inherit it when she died. How much of this is a correct account of the relevant customary law is unclear and that is due to the fact that the witnesses are not asked the same clear questions and if they are need more time than they are given in a trial to cogitate before they answer them. At any rate there is not much change, so far, in customary law as set out by Cotran.

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The second issue in this appeal was whether the respondent was entitled to her share absolutely or to only a life interest in it? Again the pre-1969 panels and the witnesses in 1979 – 1980 unite in stating that it is only a life interest for her. Pre1969 the clan would find land for her children who survived her and post-1980 the witnesses declared they would inherit from the Respondent probably because there is no clan land left in Komothai for them to have. CHESONI AJA: It was immaterial whether the suit land was inherited by Muthiora from his father or purchased by him. Upon his death whatever land he owned had to be inherited in accordance with the Kikuyu customary law unless he had disposed of by will before his death which he did not. It is settled Kikuyu customary law that the estate of a deceased intestate polygamous man is inherited according to the houses. Each house gets an equal share and a house is constituted by each wife. The children of each house then share their portion equally. It is true among the Kikuyu land is inherited by sons to the exclusion of married daughters, but as the learned judge correctly held unmarried daughters are entitled to inherit land, save that if they have no child their share is for life, but if they have an illegitimate child then that child inherits their share. In the latter case the unmarried daughter acquires an absolute and not a life interest. It was common ground that the late Muthiora had two wives so in the absence of a will as was in this case, the suit land had to be shared equally by the two houses. Only the appellant spoke of having contributed towards purchase of the land, otherwise all the plaintiffs’ witnesses, who included Muthiora’s brother, testified that he bought the suit land before he married the appellant, but since there was no cross-appeal to the judge’s finding of the appellant’s contribution I would not disturb it. The share of Nyokabi’s mother’s house was to be equally divided amongst the children of the house excluding married daughters. Nyokabi’s two sisters were both married so they were excluded and Nyokabi who was an unmarried daughter of that house, which had no son, was entitled to inherit the whole share of her mother’s house.There was, again no cross-appeal from the learned judge’s award of 3 acres to her, so I would not interfere with the award, as Nyokabi had two daughters and one son her interest was absolute and not for life.

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NYARANGI AJA: The estate of Muthiora in the property devolved to his houses and thereafter to the heirs of the houses. It is irrelevant whether the wives are alive or not. The houses never ‘die’ when there are heirs of the house’s’. So Kanyi, could not under Kikuyu custom, have the entire property for herself and her children just because Muthiora and Maritha’s mother are dead. If there was no heir in the other house, Kanyi and her children would have inherited the whole property. Now that Maratha has proved that she is unmarried she is entitled to inherit a share of her late father Muthiora’s share of the land, just as Muthiora’s son would have done, i.e. in absolute ownership. Maina Mwangi v Gachihi Njihia Nairobi Court of Appeal civil appeal number 89 of 1998 (Gicheru, Tunoi and Owuor, JJA) CASE NO. 343

(Where under Kikuyu customary law the deceased man’s household is polygamous, the distribution of his estate is in accordance with the house of each wife in equal shares)

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The deceased was a polygamist.When he died, followed closely by his three wives, his eldest son took out letters of administration and had properties registered in his name in trust.This suit was brought by his brother who was unhappy with the administration of the estate. GICHERU JA: Succession under Kikuyu customary law is patrilineal and inheritance is based on equal distribution of the deceased man’s property amongst his sons although the eldest son may get a slightly larger share. His daughters who remain unmarried may also receive a share of that property. Where, however, the deceased man’s household is polygamous, the distribution of his property is in accordance with the house of each wife in equal shares. The administrator of the intestate’s property is normally his eldest son in age in the household and amongst his functions, besides being the head of the family, is the distribution of his deceased father’s property to the beneficiaries in accordance with the rules of intestacy and in a polygamous household he exercises overall supervision in the distribution of such property in each house ensuring that the oldest son in each house does not take advantage over his younger brothers and/ or sisters who remain unmarried. As indicated in this judgment, the deceased Paul Njihia Muhia had three wives. Each of the first two wives had two sons while the third had one son. He died intestate and the distribution of his estate comprising of the suit land was in accordance with the house of each of his three wives in equal shares. Wainaina was the eldest son in age in that household and was rightfully to be the administrator of his deceased father’s estate under Kikuyu customary law and indeed obtained the grant of letters of administration intestate in respect thereof in Thika Resident Magistrate’s Court Succession Cause number 84 of 1983. In the result, the decision of Dugdale, J in Nairobi High Court Succession Cause number 194 of 1993 in regard to the distribution of the deceased Paul Njihia Muhia’s estate was no more than a re-emphasis of Wainaina’s responsibility in connection therewith. Nothing therefore turns on that decision.

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In the Matter of the Estate of Wairia Muhoro (deceased) Nyeri High Court succession cause number 3 of 1999 (Juma J)

CASE NO. 344

The deceased was survived by two widows. The first widow had four sons and two daughters, while the second widow had five daughters, all married expect for one. The matter for determination was the subdivision of the one asset left by the deceased. The second wife proposed subdivision of the land in two equal portions with each house getting a portion, while the sons of the first house proposed divison of the property according to the number of sons with the second widow and her daughter getting a portion. The court ordered that the property be divided into two equal portions, one to be registered in favour of the surviving widow and the other in favour of the four sons.103

JUMA J: I have evaluated the evidence adduced before me and it is clear that apart from Mwangi Wairia, the co-petitioner in this case all the sons of the deceased do not stay in the suit land. The evidence also shows that they have not been in the suit land for a number of years. The evidence also shows that they have not bothered to follow up their father’s land at Dishon’s. The fact however remains that it is only suit land that is registered in the name of the deceased.The issue for determination is whether the suit land should be shared equally between the two houses or among the sons and their step mother.The evidence shows that it is only the petitioners who are residing on the suit land. The other sons are residing in their own personal lands elsewhere.

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I am not satisfied that Alice Wangari received money from Dishon’s sons as a refund of the purchase and used it exclusively for herself.The evidence shows that Alice Wangari and her co-wife were in good terms and at one time stayed on a piece of land owned by one of the sons of the co-wife after they had come from Dishon’s place.There were no differences between the two co-wives and I am therefore satisfied that Alice Wangari shared the money that was paid in respect of Dishon’s land with her co-wife. In view of the foregoing, there remains no evidence to support the objector’s contention that the suit land should not be divided into two equal portions according to the houses. Indeed Mwangi Wairia, the co-petitioner had sworn an affidavit to this effect. I therefore hold that land parcel No. CHINGA/KAGONGO/305 be divided into equal portions with one portion being registered in the name of Alice Wangari Wairia and the other to be registered in the names of the four (4) sons of the deceased who belong to the house of Wambui Wairia. The objector shall pay the costs of the suit together with interests. 103

The positions taken by both sides mirrored the customary law position; where property is divided equally between the houses regardless of the number of children in each house, and where only sons are taken into account. Unfortunately the judgment of the court did not cite any statutory provisions or refer to any case law. It was not even stated which law governed the situation, whether customary law or statute. It clearly is the kind of judgement that should not be expected from a court of record. The judge was right the deceased died in 1967 before the Law of Succession Act came into force, the law applicable to the estate was customary law by virtue of section 2(2) of the Law of Succession Act, and the estate fell for division in accordance with customary law where the property of a deceased intestate polygamist was divided equally between the houses irrespective of the number of children in each house. One would have expected the court to refer to E. Cotran, Restatement of African Law: Kenya II The Law of Succession, London, Sweet and Maxwell, 1969.

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In the Matter of the Estate of Gathererie Muturi (Deceased) Nairobi High Court succession cause number 2170 of 1999 (Koome J) (An unmarried daughter is entitled to a share in her father’s estate under Kikuyu customary law)

CASE NO. 345

The deceased died intestate in 1967, and was survived by among others, a daughter who was married at one time and then went back to her father’s home. She sought revocation of a confirmed grant on the grounds that it did not disclose her as one the children surviving the deceased. Her brothers contended that she was married and as such she was not entitled to a share in the estate according to the relevant customary law. The court found that the evidence on record showed that although she had at one time been married, she had returned to her parents home after the husband died and she never remarried. The court therefore treated her as an unmarried daughter who was entitled to a share in the estate, and who ought to have been acknowledged in the petition for grant of letters.

KOOME J: The deceased died in 1967 and according to the Law of Succession 2(1): ‘The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or prevail as far as possible in accordance with this Act.’104

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Hence it was submitted by counsel for the objectors, that the law applicable in determining the deceased estate is the Kikuyu customary law. According to the Restatement of African Law by Eugene Cotran, inheritance under Kikuyu law is patrilineal. Daughters may inherit a share if they are unmarried. So was the applicant Gacheke a married daughter. It is not disputed that she got married to one Koine in or about 1930. Upon marriage they were given land by member of the deceased clan where they settled. That Koine was killed during the struggle for independence alongside the deceased’s two sons and a step son. Upon the death of her husband, Gacheke moved to her father’s land, where she remained until when he died. She too died in the year 2002 while living in the same land. Her marriage to Koine came to an end upon his death.105 She returned to her father’s land where she raised her children, she never remarried and therefore the assumption

104

105

The provision cited should actually be section 2(2) of the Law of Succession Act. Section 2(1) applies the Act to persons dying after its commencement, while 2(2) applies the law applying prior to the commencement of the Act to the estates of persons dying before the Law of Succession Act came into force. That is not the position under customary law. Under customary law marriage is for life, and it is not dissolved upon the death of the husband. Upon getting married a woman becomes a member of her husband’s family for life, and her membership in the husband’s family does not terminate with the husband’s death. It is for this reason that she and her children are entitled to inherit from her late husband’s estate, and not her own father’s estate.

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that she should inherit from her husband does not make sense and the argument has no legal basis.106No evidence was tendered to show that Gacheke had inherited any property from her husband or that she ever left the deceased land since her husband was killed. I find that Gacheke was a dependant of her father the deceased herein… The applicant Gacheke was a dependant of the deceased. Even her children who depended on their grandfather’s land were dependants of the deceased.107 Customary law was meant to be dynamic and fair so that every member of the community was accommodated and I believe that this is why the applicant came back to her father’s land upon the death of her husband and lived there until she died. It is modern day greed that has taken over and given the customary law a narrow interpretation. There was no evidence tendered to show that the applicant’s husband had any land, if anything it was said that he was given land by a member of the deceased clan to build a house when he married the applicant. It therefore defeats logic for her and her children to be turned away at this late hour and be told to go and look for their property among the people of Koine.108 Nobody knows whether he had relatives let alone property. as I said this would be unconscionable a narrow and warped up interpretation of the customary law and would be repugnant to justice and morality and indeed inconsistent with the spirit of the Kenyan constitution whereby every human being is supposed to be respected on the basis of equality before the law their gender notwithstanding. I have taken judicial notice that the objectors are not desperate people; they have fully inherited their father’s estate measuring about 11 acres.The applicant herein Gacheke Gathererie is the person having been a dependant of the deceased beneficiary entitled to his estate. This court was informed that the other daughter of the deceased Wanjiru wa Mureithi is not interested in the deceased estate and taking that into consideration and also in view of section 38 of the Law of Succession,109 the estate of the deceased should devolve upon the surviving and or children in this case the deceased children are Gacheke and Wanjiru. Since Wanjiru

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106

107

108

109

It would appear that it is the court that got its facts wrong. A look at Cotran would reveal that death does not dissolve a customary marriage, and that being the case the widow is expected to inherit from her husband’s family and not from her father. With respect, this finding is wholly misplaced; the issue of dependency was not before the court. The court was not handling an application for dependency properly brought under section 26 of the Law of Succession Act, which in any event was not maintainable in view of section 2(2) of the Act, since the deceased died before the Act came into force. The finding that she was a dependant was unnecessary and of no relevance to the matter at hand. Secondly, the issue of dependency is not a relevant factor for consideration for one to be able to access the estate of a deceased person under customary law. It is an import from English law. The Court of Appeal has held in Wambugi w/o Gatimu v Stephen Nyaga Kimani (1992) 2 KAR 292 (Hancox CJ (dissenting), Masime and Kwach JJA) and Kimani v Gikanga (1965) EA 735(Newbold VP, Crabbe and Duffus JJA) that under Kikuyu customary law married women do not inherit their father’s land as they play their part in the family or clan in which they marry. The issue whether the husband’s family has land for her to inherit does not arise, since she should pursue her share there.The Court of Appeal has conceded in Mukindia Kimuru and another v Margaret Kanario Nyeri Court of Appeal civil appeal number 19 of 1999 (Gicheru, Shah and Owuor JJA) that that position is discriminatory, but the discrimination is sanctioned by the Constitution of Kenya as per section 82 of the Constitution. In Wambugi w/o Gatimu v Stephen Nyaga Kimani (1992) 2 KAR 292 the Court of Appeal found that that position was not repugnant to justice and morality. It is to be doubted then whether the High Court can, in the instant case, purport to come to a finding which is inconsistent with the position held by the Court of Appeal following the doctrine of precedence. In any event, if the Constitution has allowed the discriminatory application of personal law, can the High Court in exercise of powers donated by legislation strike down such personal law on the grounds that the same is repugnant to justice and morality for being discriminatory, taking into account the principle of constitutional supremacy. The deceased died before the Act came into force and therefore section 38 of the Act is of no application.

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has not shown interest in this estate perhaps because she was not a dependent of the deceased, the estate should devolve upon Gacheke, and her children. The Gacheke children have applied for the grant of letters of administration in Succession Cause number 2170 of 1999.Whereby George Muturi Koine with the consent of his mother and his brothers he was granted the letters of administration. I find no justification in revoking the said grant accordingly I direct that the restriction by way of caution placed by the objectors on original title Number Githunguri/Ikuni/291 should be removed. Mumo v Makau [2002] 1 EA 170 (Omolo, Tunoi and Bosire, JJA) (Under customary law, a married woman cannot inherit from the estate of her deceased father) CASE NO. 346

A woman sued her stepbrother seeking his eviction from a certain parcel of land. It turned out that the land was originally the property of their deceased father, and the woman was claiming as an heir. It was held that under the relevant customary law, a married woman was not entitled to inherit land from her deceased father. An appeal on the point was dismissed.

OMOLO, TUNOI AND BOSIRE, JJA: The learned judge and rightly so in our view, held that under Kamba customary law, the appellant would only be entitled to inherit some land from her deceased father if she was unmarried. This is so because like the majority of the Kenyan tribes inheritance under Kamba customary law is patrilineal. Both the appellant and the respondent being Kamba Africans the court took judicial notice of their customary law as applicable and being guided by section 3 of the Judicature Act (Chapter 8) which provides: Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

‘(2)

the High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.’

***

21.3 ADMINISTRATION

OF

ESTATES

The responsibility of administration of estates under customary law falls on male members of the deceased’s family; either a brother of the deceased, an eldest male child of the deceased or his uncles. Cases numbers 342 and 343 show that administration of estates under customary law is a male affair.

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Ngeso arap Leseret v Ibrahim [1929-30] 12 KLR 50 CASE NO. 347

(Sir Jacob Barth CJ) (According to Masai custom a brother of a deceased person is entitled to the custody of his cattle and children) The facts are set out in the judgement.

SIR JACOB BARTH CJ:The plaintiff in this case is seeking to recover from the defendant who is a Nubian, the widow of his brother, seven children and fifty-three head of cattle. The plaintiff ’s case is that he is a brother of one Kemilil. Kemilil before the days of Government died, it is alleged, in a foray in the Kitosh and, as part of the spoil, was awarded seven head of cattle. The plaintiff is a Masai. Kemilil died leaving a son, Ndewa, and four other children. His widow is said to have borne three other children after Kemilil’s death making a total of seven. Ndewa is also dead leaving two infant children, the defendant’s case is that Ndewa placed the cattle and the children in his care; the defendant was to look after the cattle for Ndewa’s brother and son. Ndewa informed him that he had no other relatives living. The plaintiff has produced two wazees who state that they were in the raid with Kemilil, but one of them states that Ngeso is not the son of Kemilil but of his brother Lemara.The raid is put by Makero, one of the wazee, as having occurred 100 years ago, that is presumably fifty years ago according to the calendar. The defendant has called Ndewa’s mother who contradicts entirely the story for the plaintiff. She denies that Kemilil was her husband or that he was Masai, although she admits his part in the raid.

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I am of the opinion that this woman is not telling the truth. In my view the plaintiff is entitled according to Masai custom to the custody of the children and of the cattle, but in this case the children are presumably being brought up as Mohammedans and the question arises as to whether or not native custom should be followed. I am however, influenced by the fact that hard cases make bad law. I give judgement for the plaintiff for the custody of the cattle, which the defendant states to be sixty-five head, and the custody of the children. In view of the facts I make no order as to costs.

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Gituanja v Gituanja [1983] KLR 575 (Potter, Kneller JJA and Chesoni AJA) (Under Kikuyu customary law, upon the death of the father the eldest son assumes title as trustee over the land, but he has no more rights than other family members)

CASE NO. 348

The eldest son of the deceased had the deceased’s land registered in his name. His stepmother moved the court seeking to be registered as joint owner with the stepson in common shares. Her case was that upon her husband’s death the stepson stepped into his shoes as his muramati and he held the deceased’s property as trustee for the other members of the deceased’s family. When the land was registered in his name, it was so registered in his capacity as trustee and he was bound to share the same with his father’s wives and their children, as he held the land as their trustee. The High Court held that he held the land in trust for the rest of the family, including his stepmother. His appeal to the Court of Appeal was dismissed.

CHESONI AJA: Land inheritance among the Kikuyu is as stated by Jomo Kenyatta in his book Facing Mount Kenya page 32 (1965 Edition).The position has been as follows:

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‘After the death of the father the land passed on to his sons, the eldest son took his father’s place. At this juncture the system of land tenure changed a little, there was no one who could regard the land as ‘mine,’ all would call it ‘our land.’The eldest son who had assumed the title muramati (titular or trustee) had no more rights than his brothers, except the title ; he could not sell the land without the agreement of his brothers who had the same full cultivation rights on the piece of land which they cultivated as well as those which were cultivated by their respective mothers.’

That being the position the appellant was registered as muramati for mbari ya Gituanja (land for the family of Gituanja). He was a trustee for his mother’s and the respondent’s houses and the learned judge’s finding on those lines was correct both in law and fact. Ground 2:

‘That the learned judge erred in law and in fact in holding the view that the respondent was legally married to the appellant’s father.’ The existence of a marriage is a matter of fact which is proved with evidence. I have already said that the respondent’s three witnesses Henry, Geoffrey and Wilfred all testified that Jane was a legal wife of the appellant’s father. The customary ngurario was slaughtered. The learned judge accepted the respondent’s witnesses evidence and correctly found as a fact that Jane had proved her marriage to the appellant’s father. I can see no reason for disturbing that finding.

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… Ground 4: ‘The learned judge erred in law and fact in failing to take into consideration the fact that the respondent was living in the said parcel of land as a muhoi and or licencee.’ Muhoi is one who is given cultivation rights on the ng’ondo or lands of another man or family unit, on a friendly basis without payment for the use of the land – see Facing Mount Kenya ibid. Among the Kikuyu a woman has no rights over ng’ondo or land, except in the case of an unmarried daughter and widows who have a life interest in the land given to them for cultivation, but their life interest is not that of a muhoi. Therefore a woman can never be a muhoi. Furthermore one cannot be a muhoi on one’s family land. The respondent was not a muhoi on the disputed land of the family of Gituanja. The succession of land belonging to a deceased Kikuyu man with more than one wife is by houses.The land is divided equally among the houses and each house shares equally amongst its male children. A house consists of one wife with her children. Of course even a childless wife constitutes a house.

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In this case the appellant holds mbari ya Gituanja on trust for the two houses i.e. the house of Elizabeth and the house of Jane, which must share the land equally.

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CHAPTER 22 THE ISLAMIC LAW 22.1 GENERAL PRINCIPLES

OF ISLAMIC

OF

LAW

SUCCESSION OF

SUCCESSION

Under Islamic law, inheritance is governed by the rules stated in the Koran.The shares of respective members of the deceased’s family are fixed and clearly spelt out in the Koran. Case Number 349 illustrates this Islamic law position. Chelang’a v Juma [2002] 1 KLR 339 (Etyang J) (Islamic law has fixed share of each heir and the said shares cannot be changed, modified, added to or deleted by anyone)

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CASE NO. 349

A Muslim widow sought letters of administration of her husband’s estate, jointly with her brother, and her petition was opposed by the mother and the brothers of the deceased.The court held that the intestate estate of a Muslim is shared out in accordance with Islamic law, as stated in the Quran. By virtue of the quranic principles the widow is not solely entitled to the estate, she does not own the whole of the husband’s property.

ETYANG J: I have read the objector’s submissions filed by Miss Margaret Ndwiga where she concedes that Kiprotich and Hadija being Christians, cannot inherit the estate of a Muslim (the deceased). This is in keeping with Islamic law practices and I accept it. The other of deceased’s brothers are Muslims. They are, however, again caught up by the Islamic law which was correctly stated by Mr Hammat Mohammed Kassim, the Kadhi of Nairobi, that as long as the deceased is survived by his widow, parents or parents and children, the under Islamic law his surviving brothers and sisters are not entitled to a share of his estate, even if they are of the Islamic faith. I do so hold in this ruling. … My understanding of the Islamic Law is that it has fixed shares of each heir to the estate of a deceased person, nobody having the right to make changes, modifications, additions or deletion in it. It is this share which, in my view, must be protected by those entitled to it or will be entitled to it. It is a fallacy on the part of many widows Zaina included to hold the view, expressed by Dr. Mohammed Abdi Hai Ariti in the book Death and Inheritance (the Islamic Way) Edition 1968 at page 194, that after the death of their husbands, they

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shall take possession of all immovable property left by them, the false impression that they are the owners of everything. The fact is that: anything their late husbands gifted to them during their lifetime and handed over to them as being theirs, is no doubt theirs. But the rest of it is combined inheritance and, according to the rules of Shariah, this will be distributed among all heirs as a matter of obligation. A widow does not therefore own the whole of a deceased husband’s property. She owns only that share which she is entitled under the law. ***

22.2 TESTATE SUCCESSION Under Islamic law, and in accordance with the principles set out in the Koran, only a third of a Muslim’s estate can be disposed of by will. That third cannot be willed away to the family members who are entitled to the other two thirds, as the one third is meant to benefit non-family members. Cases numbers 108, 350, 351 and 352 are illustrations of this position. W B Keatinge v Mohamed bin Seif Salim and others [1929–1930] 12 KLR 74 (Thomas J)

CASE NO. 350

(Oral wills are permitted under Islamic law, and they can only dispense of a third of the deceased’s estate. They must be made in the presence of two witnesses, but in the absence of the witnesses the will would still be valid if approved by the heirs)

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A Muslim had made a written will, previous to oral additions to his will on his death bed. It was held that the oral codicil was not valid. Under Islamic law an oral will or codicil requires two witnesses, but in the absence of witnesses, the will or codicil would be valid if approved by the heirs. The codicil in this matter was not approved by the heirs. THOMAS J: The Mohammedan law allows a testator to make an oral will. In Wilson’s Anglo-Mohammedan Law, (5 ed), page 306, section 282, it is stated that a Mohammedan will may be either oral or written. If oral, it must (probably) be made in the presence of two male adult Moslems as witnesses. On page 307 is given a passage from the Koran in which reference is made to two witnesses. The case of Auli Bibi, 28 Allahabad, 715, has been referred to. In that case a will carrying out the instructions was acknowledged by the testatrix and is therefore distinguishable from the present case where the instructions when embodied in a codicil were not acknowledged by the testator. I have consulted the Chief Kadhi on this question and he informs me that after making the will the testator could make a codicil.Will and codicil should not together dispose of more than one-third of the estate. The codicil would require two witnesses. It would not be good unless proved. If the heirs accepted the codicil it would stand good but without that approval of the heirs two witnesses would be necessary.

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The heirs do not accept the codicil. There were not two witnesses present when the instructions were given, and when the instructions were reduced to writing they were not acknowledged by the testator. I therefore must hold that the codicil was not made in accordance with the Mohammedan law and is therefore invalid. I now turn to the consideration of the will itself. It has been argued before me that though duly executed both according to English law and Mohammedan law it is still invalid because paragraph five, on the ground that it deprives the heirs entirely. All the parties have agreed that apart from this question paragraph five should be excluded from probate. A number of authorities have been cited to the effect that any person who does harm by his will then the will is null and void. I have had the advantage of a discussion as to this point with the Chief Kadi ... He distinguishes between a wakf which may be harmful to the heirs and a wakf which is sinful. A wakf which is sinful would invalidate the whole will. This wakf is not, in his opinion, sinful, and though invalid in itself, its presence does not invalidate the whole will ... I therefore decide that the will is valid although it contains in paragraph five a wakf which is in itself invalid. That paragraph must be excluded. There remains for consideration the two bequests contained in clause two of the will. Now according to the Shafii a gift for charitable purposes is valid so long as the word charity is used; the exact object of the charity need not be mentioned. It is open to the administrator of the charity to divide the income amongst the poor, and he may affect this using money for education or hospitals as well as money donations.The administrator of the charity may invest the money by erecting a building and using the income thereof for the purposes of the charity ... It is interesting to note that also under the Shiah doctrines a wasiat (i.e. will) is lawful in favour of good or meritorious purposes generally ... Bequests for prayers, fasts, pilgrimages and similar objects are lawful according to the Shafii law. They are lawful according to the Sunni (See Syed Ameer Ali, page 636). There is no limitation as to their amount, but of course such bequests must not exceed in their total amount one-third of the estate. Copyright © 2010. LawAfrica Publishing (K)Limited. All rights reserved.

In the Estate of Faiz Khan, deceased [1929-30] 12 KLR 111 (Thomas J) CASE NO. 351

(The oral will of a Muslim is valid if it is supported by two witnesses or by a reputable witness supported by other witnesses) An application was made for admission to probate of an oral will of the deceased. The court held that an oral will of a Muslim is valid if it was witnessed by two persons, or where there is one reputable witness supported by other witnesses. The will was admitted to probate.

THOMAS J: In the case of a Mohammedan oral will it would seem that two witnesses are required. (See Wilson Anglo-Mohammedan Law, Fifth Edition, page 307.) In this case there was one reputable witness and there are several witnesses who although their reputation has been attacked bear out that reputable witness both as

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to the making of the will and its contents. If a number of witnesses were called but the Court could not rely on the evidence of any of them then the Court could, whilst finding that a will had been made, declare that it could make no order as to the contents of the will. ... Deceased said:‘Now I am in danger of my life and regarding my life I have some fears. Therefore I say to you (Sardar Khan) that when I am no more take care of my family. Our shop, mill, and other things all belonged to you during my lifetime and will continue to be yours after my death. I have nothing in writing with me: write down whatever I dictate to you. Give Sh. 10, 000 to Mohamed Din and keep him pleased. He has done a good deal of work for me. The jewellery which is with my wife, do not take from her: let that remain with her.’ As to what construction should be placed on the meaning of that language is not now before me. I am satisfied, however, that it is sufficient to constitute the appointment of the applicant as executor. Therefore I declare that an oral will of the testator Faiz Khan in the terms set out above has been proved in solemn form, and I grant probate to the applicant. It would seem an oral will can only dispose of one-third of the estate of the testator; as to whether this makes any difference to the administration of the balance of the estate I express no opinion since the matter is not before me. Re the Estate of the Late Suleiman Kusundwa [1965] EA 247 (Sir Ralph Windham CJ)

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(Only one third of a Muslim’s estate can be willed away. Where there is a question as to which law to apply to the estate of a deceased African Muslim, in the event that he appears to be subject to both customary and Islamic laws, the test to be applied is to determine the law which governed the status and rights of the widow during matrimony) CASE NO. 352

The matter was on revocation of a grant made to the Administrator-General, on the ground that the name of one of the widows was omitted from the list of beneficiaries. An issue arose as to the law applicable to the estate of the deceased; whether it was customary law or Islamic law.The deceased was a Mnyamwezi by tribe, who had married the particular widow according to Muslim ceremonies and law. The court considered the corpus of law that governed the widow during matrimony, and therefore the law which determined her status and rights, and held that it was Islamic law which governed the estate of the deceased.

SIR RALPH WINDHAM CJ: … I therefore decline to revoke the existing grant, a revocation which would entail needless expense; but I qualify it by declaring that the provisions of the annexed will, in which he purported to leave the whole of his property to his nephew, the second respondent, shall be given effect to only in respect

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of such portion of the deceased’s property as he was entitled to dispose of by will under the applicable law of inheritance. If that law is the Mohammedan law, then it has been conceded on behalf of the Administrator-General that that portion is onethird of his property only. And that brings me to the last question for decision, namely whether the law to be applied is the Mohammedan law or the tribal customary law of the deceased, who was a member of the Mnyamwezi tribe…The question whether the law of the deceased’s religion or the customary law of his tribe should (in the case of conflict) be applied in the administration of his estate is thus unresolved in the present case by statutory provision; and we must therefore turn to judicial decision, if any.

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I have been referred by the learned Administrator-General, in support of his contention that the tribal law applies, to a decision of the Court of Appeal for Eastern Africa, Mtoro bin Mwamba v A-G of Tanganyika (1953) 20 EACA 108, in which a passage from the judgement of Worley,VP, which reads as follows (1953) 20 EACA at page 117): ‘The fact that a tribe may have been converted to Islam does not necessarily mean that its customs, particularly those relating to land tenure, are thereby changed. Mr Morrison, conceded, and I think advisedly conceded, that Mohammedan law, if applied to a tribe which only recognised communal ownership, would be modified by the custom of the tribe, in Abdulrasool v Muluwa (1915) 6 RALR 31, BONHAM CARTER, J. (with whose judgement Eberhardt J, concurred), said in the Court of Appeal, at page 32, ‘The Sheria in countries obtained otherwise than by conquest respects the local law, and even if the Sheria does apply it would not enable a man to convey what he has not got.’ Mohammedan jurists have also laid down that the Moslem law may be modified or supplemented by local custom: see Principles of Mohammedan Law by Faiz Badrudin Tyabji, (2 ed) at page 23 and Abdur Rahim’s Principles of Mohammedan Jurisprudence, at page 55, and see also Zanzibar High Court Civil Case Number 37 of 1950, where Gray, CJ, Zanzibar, held that, although section. 7 of the Courts Decree of Zanzibar declares that the law of Islam is the fundamental law of the Protectorate, that fundamental law itself recognises custom and usage as being a source of law . it is, I think, a matter of undisputed historical record that the first Arab settlement at the place which is now Dar-es-Salaam was effected about the year 1860 by peaceful means with the consent of local native inhabitants and not by conquest: see Coupland’s The Exploitation of East Africa at pages. 36-37, and Tanganyika Notes and Records, Number 3, April 1947, at pages 118-119. if that is so, then, although there may be a presumption that the Muslim Arab settler observed the Sheria in dealing themselves, there can be no presumption that they imposed their law on the indigenous inhabitants but, indeed, the presumption would be that they did not interfere with the laws and customs already in force, even though the natives were converts to Islam.’

Now if I thought that in the above passage it was being authoritatively laid down that, where an African Muslim has (as here) married according to Muslim ceremonies and law, his widow’s rights of inheritance in his estate shall be determined in accordance with the custom of his tribe and not in accordance with Muslim law, then I would hold myself bound by that passage. But that is not the position as I see it. not only is the passage in very general terms, laying down no more than presumptions; but that case was concerned not with any question of marital relationships or rights but with land tenure and acquisitions of title by adverse possession. Where the law or custom regulating personal relationships is concerned, the question whether the Muslim law or the tribal law should be applied (in case of conflict) was dealt with more recently

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and more specifically by Spry J in Hussein Mbwana v Amiri Chongwe (2). The subject matter of that case was a marriage, and in particular the question of what relative’s consent was necessary to the marriage of the daughter of a deceased Muslim, and questions of dowry and bride price. It was held that the first two questions, since they are covered by the Muslim law, should be decided in accordance with that law, while the question of bride price, which is not covered by Muslim law, being neither recognised nor forbidden by it, should be decided in accordance with the appropriate local customary law. Spry J, made the following pertinent observations in that case and arrived at the following conclusions: ‘It has sometimes been argued that Islamic law is to be regarded as applying to Africans as part of their customary law. In my view this is not a sound proposition. Customary law is the body of customs which by usage has acquired the force of law. As such it is constantly changing with the changing ways of life. It cannot, therefore, in my view, include a complete and fully developed system of religious law. Some elements of religious law may, of course, be absorbed into the customary law but they are then to be judged and are subject to change as part of the customary law and they lose the attributes of the religious law from which they were derived. I hold, therefore, that there are two systems of law which may apply in an African Muslim community, religious law in matters peculiarly personal, such as marriage, and customary law which may apply in all spheres of life.’

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With the above observations and conclusions I am in entire and respectful agreement. It has been urged, however, that whereas matrimony is a matter ‘peculiarly personal,’ inheritance is not. But this contention cannot prevail. It cannot be held that, while the rights of an African Muslim wife at and during her marriage are to be governed by Muslim law, her rights of inheritance upon her husband’s death are to be governed by her tribal custom, which may give her no such rights. The status and rights of a wife after her husband’s death must be governed by the same corpus of law as governed them before his death. Her rights of inheritance are bound up with her rights, or comparative lack of them, during matrimony, and are in the nature of a counterbalance or safeguard to her when she loses her protector. The one is as much as a matter of personal law as the other, and the two must stand or fall together. I accordingly hold that the law to be applied in the present case in the distribution of the deceased’s estate is the Muslim law, and that effect shall be given to the dispositions of his will only subject to that law. ***

22.3 INTESTACY The two-thirds of a Muslim’s estate available to members of the family of the deceased are disposed of in accordance with the law of intestacy. Each family member is entitled to a fixed share from the estate. The Koranic shares cannot be altered or departed from. Cases number 348, 349 and 350 illustrates the legal position on intestacy . Case number 353 looks especially at the rights of widows.

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Re Salum (1973) EA 522 (Mfalila AJ) (A kitabia married to a Muslim man is entitled to a share in the intestate estate of her deceased husband)

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CASE NO. 353

The deceased was a Muslim who married a Christian woman in a civil ceremony. He did not live according to the customs of his tribe, and he raised his children as Muslims. The Administrator-General moved the court for directions whether his estate was to be administered according to Islamic law or customary law. It was held that the estate was to be administered according to Islamic law since the deceased lived his life according to Islamic law. The widow was also entitled to a share in his estate since her marriage to the deceased was recognised under Islamic law.

MFALILA AJ: The first question for determination is whether the law to be applied is the Mohamedan law or the tribal customary law of the deceased who was an African Muslim of the Wahehe tribe. The estate constituted what is called a ‘deceased native’s estate’ in the Administration (Small Estates) Ordinance (Chapter 30). Since this is a deceased native estate to which the provisions of the Probate and Administration Ordinance apply by virtue of an order made under Part IX, section 88(1)(b) thereof, it must be administered in accordance with the provisions of the Administration (Small Estates) Ordinance in particular section 19(1). Under this section the law applicable is the tribal customary law or Mohamedan law if the deceased at any time professed the Mohamedan religion and there are circumstances which can lead to the inference that he intended his estate to be administered by Mohamedan law.The position therefore is that this estate is to be administered by the tribal customary law of the deceased unless, as he professed the Mohamedan religion, this court is satisfied from the written or oral declarations of the deceased or his acts or manner of life that he intended his estate to be administered, either wholly or in part, according to Mohamedan law. The deceased was a Senior Officer in the service of the county’s armed forces. He married outside his own tribe and contracted a civil marriage with the widow. His manner and style of life was far removed from the tribal customs and environment. If therefore the deceased had been a Christian, I would have had no difficulties in applying the provisions of section 19(1) to this estate ... section 19(1) cannot be made available to the present deceased because he was a Muslim. It is therefore either tribal customary law or Mohamedan law. Under customary law, the widow gets absolutely nothing from her husband’s estate. But since their relationship, manner and style of life was not regulated by tribal customary law, it follows that the rest of their relationship regarding property cannot be regulated by customary law. Hehe customary law of succession is therefore not applicable to the administration of this estate.

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This leaves me with Mohamedan law. The deceased was brought up as a Muslim and although he married a Christian, he remained a Muslim and brought up his two children as Muslims. I think these are sufficient indications that he wanted his personal life to be regulated by Muslim law and I have no doubt that were he to be asked, he would have preferred his estate to be administered in accordance with Mohamedan law. I therefore direct that this estate of the deceased be administered in accordance with Mohamedan law of succession. Lastly I will deal with the question whether the widow should, despite her being a Christian inherit the deceased’s estate taking 1/8th shares provided for by Mohamedan law or whether as a Christian and non-Muslim she cannot inherit in the estate of a deceased Mohamedan. During the hearing of this application for directions, the Assistant Administrator General referred to a recent order by this court re Asha Ilamulira HCP and A 128 of 1966 (unreported) in which Biron J held that a Christian or a non-Muslim could not inherit the estate of a deceased Mohamedan. In that case Biron J was dealing with the claims of a Christian brother to the estate of a deceased Muslim sister.

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I am not quite sure whether this prohibition covers relatives and non-relatives alike and Biron J did not address his attention to this aspect of the matter but speaking for myself I would prefer it to be limited to non-relatives. In any case when one is considering the rights of widows, I think the test of their right to inheritance should be whether their marriage to the deceased was recognised by Mohamedan law. If it was, then their legal status as wives should be recognised by the same law even after the husband’s death. If they are recognised as wives by Mohamedan law, the same law should recognise their right to succession in their deceased husband’s estates. To hold otherwise would be tantamount to giving such wives two status different in kind. One legal obtaining during the husband’s lifetime and the other illegal after his death. Therefore I will simply ask myself whether this widow was recognised by Mohamedan law as the deceased’s wife. A reference to Mulla’s Principles of Mohamedan Law at page 234, clearly shows that Mohamedan law recognises certain marriages between Mohamedan males and non-Mohamedan females. At paragraph 259 the author has this to say: ‘A Mohamedan male may contract a valid marriage not only with a Mohamedan woman, but also with a Kitabia, that is with a Jewess or a Christian, but not with an idolatress or a fire-worshipper ... ’

Mrs Nelly Mkeremi according to the above paragraph is a Kitabia, therefore her civil marriage under the Marriage Ordinance to the deceased was valid marriage recognised by Mohamedan law. She is therefore a ‘wife’ under that law. If this is so then she is entitled to her share as a wife in the deceased’s estate. ... For these reasons it is directed that the distribution of the residue of the deceased’s estate should be governed by Mohamedan law and that the widow should, despite her being a Christian, inherit in the deceased’s estate in accordance with the rules laid down by that law. ***

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OF

699

ESTATES

Under section 2(4) of the Law of Succession Act, Part VII of the Law of Succession Act applies to the estate of a Muslim. Under Islamic law, however, there are rules which regulate administration of a Muslims estate. Such rules do not apply to the estate of a Muslim in Kenya in view of section 2(4). Cases numbers 354 and 355 are illustrations of the legal position where an estate is strictly subjected to administration under Islamic law. Administrator-General v Abdul Hussein (1911) 4 EALR 26 (Hamilton J) CASE NO. 354

(Mohammedan law requires strict proof of claims against estates of deceased Muslims) A debtor sued the administrator of the intestate estate of a deceased Muslim, over moneys owed by the estate for goods delivered and services rendered but not paid for. On appeal it was held that the claim was not sufficiently proved and it was remitted to the lower court for re-hearing.

HAMILTON J: It appears to me ... that in cases such as this the court is bound to observe the substance of the Mohamedan law, and that to a claim on evidence such as that produced in this case would be contrary to the provisions of article 20 of the Order in Council 1902.

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The Mohamedan law requires strict proof of claims against estates of deceased persons, and rightly so, and the Administrator-General as wasi of a native Mohamedan’s estate is bound to observe that law, and I see no reason for saying that the requirements of that law should not be observed by the subordinate courts of the Protectorate, in which the Administrator-General is sued as a wasi. I do not, however, wish it to be thought that this ruling means that in cases between Mohamedan natives in the subordinate courts of the Protectorate all the procedure laid down in the sheriah is necessarily to be followed; I hold that the requirements of proof in this case are more than mere procedure and should be observed as being a part of the substantive Mohamedan law. I allow the appeal with costs but in view of the Administrator-General’s pleading I remit the case to the lower court for rehearing and decision according to the evidence required for proof of claims in such cases by Mohamedan law.

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Manser bin Simba v H Fitzgerald Reece as Trustee for Mwana Aisha binti Juma (1918-1922) 2 ZLR 30 (Barth CJ, Pickering and Guthrie Smith JJ) CASE NO. 355

(Under Islamic law an heir may sell his share) The heir to half an estate sold more than his share without authority. It was held that under Islamic law an heir may sell his interest, and since in this case he had sold more than his share the sale was null and void.

GUTHRIE SMITH J: The Mohamedan law as to administration appears to be that an executor or wazee alone can sell the deceased’s property, and then only on certain conditions, e.g., that the money is required for payment of debts or taxes or that it is unprofitable to keep it. A joint heir has no power of sale over the estate, but he can deal with his own dasher and sell it as an undivided interest. The husband did not purport to sell an individual share, he proposed to deal with the whole estate. It would therefore seem that the plaintiff and his three predecessors were in the wrong to begin with, as they did not verify the vendor’s title in any way. These rights, if any, are equitable, and though prior in time they cannot prevail against the defendant, who acquired the legal estate and the title deeds without notice of their equity. In my opinion the judgement appealed from is correct, and the appeal should be dismissed with costs. ***

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22.5 CONFLICT

OF ISLAMIC AND

AFRICAN CUSTOMARY SUCCESSION LAWS

Routinely, conflicts arise between Islamic law and African customary law, particularly in those instances of Africans who are Muslims. A choice of law matter arises, where it has to be decided whether to apply Islamic law or customary law to an estate. It has been established that in the event of such a conflict, Islamic law applies. Cases numbers 352 and 356 illustrate the approach that the court is likely to adopt in the event of a conflict between the Islamic law of succession and African customary law, where the court is required to make a choice of law between the two systems.

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Ali Ganyuma v Ali Mohamed [1922-28] 11 KLR 30 (Sir Charles Griffin CJ, Sir Alison Russell CJ and GuthrieSmith J) (Where a person is subject to both Islamic law and African customary law, the law to apply to his estate should be Islamic law) CASE NO. 356

The deceased was a Mdigo by tribe and a Muslim by faith. The issue on appeal was whether the estate of an African Muslim was governed by the customs of his tribe, which envisages a matrilineal system of succession, or by Islamic law, where succession is patrilineal. The court applied the Mohammedan Marriage, Divorce and Succession Ordinance, and held that the applicable law to the estate of a deceased African Muslim is Islamic law, not African customary law because the person dies a Muslim.

SIR CHARLES GRIFFIN CJ: In this appeal the question for decision is whether the estate of a deceased member of the Wa-Digo tribe, who was a Mohammedan, descends in accordance with Mohammedan law or in accordance with the customary law of the Wa-Digo tribe. Descent according to Mohammedan law is patrilineal; according to Wa-Digo customary law is matrilineal.

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Section 4 of ... (the Mohammedan Divorce and Succession) Ordinance is as follows: ‘where any person contracts a marriage or, being a male, contracts marriages, in accordance with Mohammedan law, whether such marriage or marriages shall have been contracted either prior or subsequently to the commencement of this Ordinance, and such person dies after the commencement of this Ordinance, and where the issue of any such marriage or marriages dies after the commencement of this Ordinance, the law of succession applicable to the property both movable and immovable of any such person shall be in accordance with the principles of Mohammendan law, any provision of any Ordinance or rule of law to the contrary notwithstanding : Provided that where in any sect of Mohammedans to which the deceased belonged the law of succession differs from the ordinary law of succession in accordance with the ordinary principles of Mohammedan law then the law of succession applicable to such sect shall apply.’

The effect of ... section 4 of the Mohammedan Divorce and Succession Ordinance on the question of succession before this court is, in my opinion, that Mohammedan law applies and the estate descends patrilineally. As the Wa-Digo are a tribe and not a sect, the proviso at the end of the section which is limited to sects does not take care of the succession to estates of Mohammedan members of the tribe out of the general provision contained in the section. It is curious that throughout the whole proceedings in the lower courts, no reference has been made to the Mohammedan Divorce and Succession Ordinance, which governs the case.

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