PROBATE AND ADMNISTRATION LAW NOTES

ATP 102: PROBATE AND ADMINISTRATION

CHAPTER ONE

1.1 Introduction

This is the branch of law that deals with inheritance. The concept of inheritance is universal to all societies irrespective of their legal system, ideology or religion.  This arises out of three basic philosophical considerations:

• That man needs to acquire some property for his own sustenance and leading a good life. Inheritance is one of the means through which property is acquired,  
• the fact that man dies and leaves behind his property that should continue to be owned by those who are left behind, 
• And the fact that man instinctively wants to have some control over his property even upon his demise.

 In all societies, the law of succession seeks to ensure that the rightful claimants inherit the property of a deceased person.  It also provides for the procedure by which such rightful claimants accede to the estate of the deceased person.

 

1.2 The Relationship between Succession Law and Other Areas of Law

 There is a very close interface between the law of succession and the areas of law: family law, law of trusts and property law.

 

(a) Family law

Family law and succession law are interdependent. In many respects the law of succession is seen as part of family law, in the sense that following the demise of a family member his property is usually shared out among the members of his family who survive him. The heirs or beneficiaries of the estate of the deceased, in most jurisdictions, are family members.  In testate succession there is a moral obligation on the part of the testator, while disposing of his property in total freedom of attestation, to provide for his family. Most of the succession disputes turn on family law questions, such as whether a person claiming to be a heir or dependant of the deceased or to be beneficially interested in the estate of the deceased was a spouse or child of the deceased.

 

(b) Law of Trusts

In administration of estates of deceased persons, the issue of trusts inevitably arises. The property of the deceased vests in the personal representative who holds the real and personal property of the deceased for the benefit of others, and not his own. In the circumstances, the personal representative holds the property in trust for all the creditors and beneficiaries who are entitled to the estate of the deceased. He stands in a fiduciary position with regard to the property and in his relationship with the creditors and beneficiaries. Under the Trustee Act the definition of trustee includes a personal representative, although the true relationship of the two offices is not exactly the same, but the personal representative may become a trustee in the full sense.

 

(c) Property law

Law of succession is concerned with devolution of property rights upon death from the dead person to those who survive him. Property vests in personal representatives upon the making of the grant of representation. The personal representative is given wide powers regarding the management of the property, which includes the power to sell and invest the same. The distribution of assets to creditors and beneficiaries usually involves the transfer of title in the property.

CHAPTER TWO

 HISTORY OF THE LAW OF SUCCESSION IN KENYA

2.1 SUCCESSION LAWS BEFORE 1981

Before 1 July 1981 matters of succession were governed by four different systems of succession law and these different systems conformed to the cultural groups resident at the time. 

These systems were  

i.African customary law which applied to Kenyans of African origin; 

ii.Islamic law which applied to estates of Kenyans who professed the Islamic faith; the Islamic law was based on the Koran, the principles set out in the Muslim holy book; 

iii.the Hindu Succession Act and the Indian Will Act; applied to Kenyans of Indian descent; 

iv.the Indian Succession Act of 1865 and the Indian Probate and Administration Act 1881 which applied to Kenyans of European descent; these statutes were enacted in India but made applicable to Kenya.

 

 2.1.1 African Customary Law

African Customary Law was the predominant law of succession in the period before the onset of colonialism.  It was the law which governed the estate of deceased Africans before the onset of colonialism.  It provided for both testate and intestate succession.  Other laws were introduced with colonialism to complete African customary law and Cap 160 was intended to completely replace African customary law as the law of succession.

The East Africa Order in Council 1897 is credited with establishing the modern Kenyan Legal System which provided that African Customary Law was to apply to Africans with the condition that so long as it was not repugnant to justice and morality.  For this reason matters of succession were to be governed by African Customary Law.  The 1897 law did not deal with the position of the Africans who were considered to be westernised, there was a question mark as to whether this law applied to those African who had converted to Christianity and adopted western way of life.  In those early days those Africans set to divorce themselves from the operation of African Customary Law and they felt that their personal matters, i.e. marriage, divorce and succession, should be governed by Western Law.  There was an issue then as to whether African customary law applied to the estate of such persons as the legislation was silent on this issue.  This issue was subsequently considered by the courts in the case of Benjawa Jembe vs. Priscilla Nyondo, in the opinion of the court in the case of Succession of a native Christian’s estate followed the law of the tribe to which such Christian native belonged.  Barth J. said on this “…The fact that the deceased married a wife according to the rules of the Anglican Church does not affect the Succession to his property.  Succession must be regulated by native law or custom.”

The court applied customary law to the westernised Africans because the land tenure was still subject to African Customary Law and the Western notion of property ownership had not been introduced.

 

An attempt was made in 1897 to address this problem through the 1897 Natives Courts Regulation.Article 64 of the regulation provided that AfricanChristians were to be governed by the law that governed the Indian Christians in India on matters of intestate succession.  The regulations however did not specify however what law this was because there were two sets of law which applied to Christians in India; there was the Indian Succession Act of 1865 and the English Law of Succession.  Both laws were applying in India at the time.  The position was clarified in 1902 when the African Christian Marriage and Divorce Ordinancewas passed.  Section 39 of the Ordinance provided that the English Law of Succession was to apply to African Christians largely because after contracting a statutory marriage the African was presumed to have discarded the tradition African way of life thereby removing himself from the ambit of African customary law .

 

 In 1904, the Native Christian Marriage Ordinance, 1904 repealed section 39 of the 1902 Ordinance and thereby subjected the African customary law of succession to the estates of all native Africans irrespective of their marriage law system. The decision of the court in the case of Benjawa Jembe vs. Priscilla Nyondo was founded on the Native Christian Marriage Ordinance, 1904. 

 

This remained the position until 1961 when the African Wills Act was passed to enable the Africans make written wills. Testate succession became subject to this statute while intestate succession continued being governed by the respective customary law of the deceased. This statute originated from the recommendations made by one Dr. Arthur Philips in a report on Native Tribunals.  Prior to 1961 an African could not dispose of his property by a written will, there was no law under which he could bring himself under testate succession and this statute was passed to enable the African to dispose their property by written will.  The statute had the effect of bringing Africans under testate succession.

The 1961 Act remained in force until 1981 when it was repealed after the coming into operation of the Law of Succession Act.Although intestate succession was subject to African customary law, in some cases the estates of deceased Africans who died intestate were brought under statute law and this was usually in cases where African customary law was said to be repugnant to justice and morality. 

 

2.1.2 Position of Islamic Law Prior to 1981

The East Africa Order in Council of 1897did not make any reference to Muslims and it was assumed that the reference to natives included Muslims.  This created a little problem because many Muslims were Arabs who did not regard themselves as Africans.  In any case Arabs were not governed by African Customary Law.

The position relating to Muslims was clarified in the Natives Courts Regulations 1897.  Article 57 of the Regulations gave official recognition to the application of the Islamic Law in accordance with the Koran.  The regulations were further enacted in the Natives Courts Ordinance of 1907 which basically reaffirmed the 1897 position and established Islamic Courts which applied Islamic Law in matters of personal law and succession.  At the time these courts were known as the Liwali Courts which were a precursor of the Kadhi Courts.

In 1920 the Mohammedan Marriage Divorce and Succession Ordinance 1920 was passed and it indicated the classes of people who were subject to Islamic Laws of Marriage and Succession.  This statute applied Islamic Law of Succession to any person who contracted a Mohamedan Marriage or was an issue of such marriage.

 

Section 4 of the said Ordinance deals with matters relating to Succession.  In the case of Ali Ganyuma v Ali Mohamed it was held that in the case of a conflict between African Customary Law and Islamic Law, Islamic Law took priority and Section 4 of the Act applied to the exclusion of African Customary Law.  The position stated in the Native Courts Ordinance 1907 and the Mohamedan Divorce and Succession Ordinance 1920 remained the position until Independence. 

After Independence the government reaffirmed to the Muslims and this affirmation had something to do with the politics at the time.  There was a fear among Muslims in the 10 mile coastal strip as being dominated by the mainland Christians.  The reaffirmation was actually intended to counter a threat that the Muslims were thinking of breaking away from Kenyan and forming part of the Sultanate of Zanzibar.  Government gave them an assurance that under the new constitutional order they would be allowed to keep their own personal law. This guarantee was given constitutional backing through Section 66 of the Constitution which provided the establishment of the Kadhi’s Courts.  These courts were mandated to decide matters arising out of Islamic law where the same related to personal Law and succession.  These Kadhi’s courts effectively replaced the Liwali Courts of 1907.

 

The position stated in the Constitution remained until 1981 when Cap 160 came into operation.  Cap 160 repealed all the then existing laws on succession and it became to all persons domiciled in Kenya regardless of their religion.  Section 99 of Cap 160 repealed among other law Section 4 of the Mohamed Marriage Divorce and Succession Ordinance.   The Muslims were not happy with this arrangement and did not like being brought under the provisions of Cap 160 and in 1990 there was agitation by Muslim seeking to be excluded from the provisions of Cap 160.  The Muslim regarded the passing of the Act as repudiation by the government of the reassurance given to them at independence, they regarded as an act of betrayal.  Their case was that matters of personal law for Muslims must be governed by the Koran.  For them the argument was that for Muslims the personal Law must be the law embodying the provisions of the Koran.  They were unhappy about certain provisions in the Law of Succession Act which they considered to be inconsistent with the Koran.  One of those provisions was Section 5 of the Act which provides for the doctrine of testation which allows a testator to will away his property as he wishes.  Under Islamic Law a person can only distribute away a third of his property and they considered a law which allows a person freedom to will away everything to be contrary to the provisions of the Koran. 

 

Government eventually gave into pressure from the Muslims in 1990.  The Miscellaneous Amendment Act No. 2 of 1990 was passed.  This Act disapplied the Law of Succession Act to persons who at the time of their death were Muslims.  It also applied the Law as contained in the Koran to the Estates of such persons. The Amendment Act also reaffirmed the position of the Kadhi’s Courts by stating that the said courts continued to have jurisdiction to decide on succession matters relating to Muslims in accordance with Islamic Law and that remains the law regarding the Muslims to this day.

Article 170 (5) of the Constitution of Kenya2010 reiterates this by providing that the jurisdiction of a Kadhi’s court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.

Cap 160 can still be applied to the Estate of a Muslim but only with respect to administration but otherwise the substantive law stated in Cap 160 does not apply to Muslims.

 

2.1.3 The Law applying to Hindus

Between 1887 and 1898, the position of the Hindus with regard to the law of succession was very uncertain principally because the Indian Law of Succession Act had been disapplied to Kenya. Order No. 22 of 1898 that applied to Kenya the Hindu Wills Act that was a mere adaptation of the 1865 Indian Succession Act clarified the position.  The Hindu Wills Act was applied to Kenya to provide for testate succession for the Hindus living in Kenya.

 

With regard to intestate succession, no law had been specified as being applicable to the Kenyan Hindus.  The Hindu customary law that governed the subject until 1946 automatically filled this vacuum. In 1946 the Hindu Marriage, Divorce and Succession Ordinance was passed.  Its effect was to confirm the matters of intestate succession for the Kenyan Hindus were to be governed by the Hindu customary law.

 

The 1946 legislation applied to those Hindus who had died domiciled in Kenya but was silent on what law applied to those who died in Kenya but domiciled elsewhere.  The scope of the legislation was therefore restricted.  Another restriction in the scope of the ordinance was that it only applied to the Hindus whose marriages had been contracted in the colony.  In Bessan Kaur v. Rattan Singhthe plaintiff, who was a widow, sued the defendant who, as the deceased’s only son had inherited his father’s entire estate.  She claimed for maintenance under the above legislation. It was held that she could not establish any right of succession under the ordinance since her marriage with the deceased was contracted outside the colony and section 3(1) of the ordinance restricted the scope of the statute to persons married in Kenya.

 

Because of some law reforms that took place in India, in 1960, it was deemed appropriate to amend the Kenyan ordinance accordingly and bring it into line with these changes.  In 1961, the 1946 ordinance was amended by being split into two statutes - the Hindu Succession Ordinance and the Hindu Marriage and Divorce Ordinance. The Hindu Succession Ordinance provided for intestate succession while the Hindu Wills Act provided in testate succession. These two statutes remained in force until 1981 when the Law of Succession Act repealed them both.

 

2.1.4 Europeans

With respect to the Europeans, there was no law that could govern the Estates of deceased Europeans in the Kenyan colony and for that reason the colonial government imposed the English law of Succession to govern the Europeans in Kenya.  The 1897 Order in Council provided that the law to govern Succession to the Estate of Europeans was the Indian Succession Act of 1865 and the Indian Probate and Administration Act of 1888.

The 1865 Act reflected the position of Succession law in England at that time and it provided for both testate and intestate succession.  It also contained the doctrine of testamentary freedom in its absolute form i.e. which allowed the property owner to will away his property without necessarily leaving anything for the dependants.  This Act remained in force until 1981 when it was disapplied following the coming into operation of Cap 160 and Europeans are now subject to Cap 160 together with other communities resident in Kenya.

 

2.2 THE LAW OF SUCCESSION APPLYING IN KENYA SINCE 1981

Until 1^st July 1981, there were four systems of law of succession in Kenya applying to the four different socio-ethnic groups of people in Kenya.  The Law of Succession Act was passed with the intention of merging and consolidating all the four systems of law of succession and their support legislation into one comprehensive statute in order to give the country a uniform law of succession applicable to all sections of the Kenyan population.

 

The Law of Succession Act came about because of a report compiled by a commission appointed by the late President Kenyatta in 1967, to look into the problems concerning the succession regime in Kenya. The purpose and scope of the Act is stated in its preamble.  It is an Act of parliament to define and consolidate the law relating to intestate and testamentary succession and the administration of estates of persons and for connected purposes. Section 2(1) of the Act states that the Act constitutes 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 the Act.

 

Section 99 of the Act repeals all the then existing statutes on the law of succession and these are listed in the 8^th schedules.  They are as follows:-

a.                The Indian Succession Act of India 1865.

b.               The Hindu Wills Act of India, 1870.

c.                The Probate and Administration Act, 1888.

d.               The Hindu Succession Act.

e.                The African Wills Act, 1961.

f.                The Administration of Estates by Corporations Act.

g.               The Commonwealth Probate Act.

h.               The Colonial Probate Act, 1892.

Section 100 of the Act provides for the amendment of the other existing statutes, among them being the Mohammedan Marriage, Divorce and Succession Act (Cap. 156), which was harmonized with the Law of Succession Act by the deletion of its section 4, which dealt with matters of succession.

 

2.3 Conflicts of Succession Laws

1.      Problems arose from the interaction of the different systems of succession laws applicable to various cultures of Kenyan people.

i.Kenya consists of diverse ethnic groups each with a different set of rules and customs relating to succession.

(ii)          Interactions between Africans and other races resident in Kenya created a further dimension to this conflict e.g. an offspring of inter-racial marriage. The courts dealt with such conflicts by making assumptions some of which were expressed in colonial legislation:

Section 39 of the 1902 African Christian Marriage and Divorce Ordinance assumed that once an African had contracted a marriage under the statute, he automatically abandoned his African way of life, culture and laws including those of succession such that the English Law of Succession applied to him. 

2.               Muslim Conflicts

Ismailia Muslims, mainly from India, provided a further dimension to this conflict as to which Succession law to apply, Hindu or Muslim. Judicial decisions were conflicting, in some cases Hindu law applied and in others Islamic law applied. InMuseraza vs. Jiwa,it was held that Ismailia Khoja sect’s law was Mohamedan and hence Mohamedan law of Succession prevailed. In Lakha and others vs. Standard Bank, it was held that Hindu customary law and not Mohamedan law governed the Ismailia’s community’s law of succession. 

 

2.4Shortcomings of the Act

a.      It does not cater for certain areas and persons as follows:

Section 32 of the Act empowers the Minister to disapply by a notice in the Gazette, agricultural land and crops on such land or livestock in some parts of the country from part 5 of the Act. Section 33 of the Act applies customary law to property excluded under section 32. The Minister has exercised power under section 32 under legal notice number 94 of 1981 through which the Minister exempted property in the predominantly pastoral districts of Marsabit, Narok, Tana River, Samburu, West Pokot, Turkana, Isiolo, Mandera, Wajir and Kajiado from intestacy provisions. 

The reason for this was that in these parts of the country, individual ownership of property is not recognised. Land is still held communally and even property such as livestock is owned collectively. Succession to property in such areas is better left to the customary law of the people concerned. The Act contemplates a capitalist market economy which recognises individual ownership of property. It is important to note that sections 32 and 33 do not provide a blanket exemption covering all African intestates. It only covers property in the areas exempted from the provisions of the Act. 

b.      There are conflicts between the Law of Succession Act and other Marriage Acts

There are also many conflicts between the Law of Succession Act and other marriage Acts. With respect to the definition of a wife, the law is not clear and quite a bit of controversy has been generated on this point. This inconsistency arose from the fact that theMatrimony Bill was not passed with the Law of Succession Act as intended in order to harmonise marriage law with the Law of Succession Act has resulted in a great deal of confusion especially with regard to the women married to men who had earlier on contracted statutory monogamous marriages.

In Jembe v Nyondo where Barth J said,

"The fact that the deceased married a wife according to the rules of the Anglican Church does not affect the succession to his property. Such succession must be regulated by native law or custom.

This view was upheld in judicial decisions in Re Ruenji s Estate and Re Ogolla s Estate because although the Law of Succession Act had been passed, it had not yet come into force.

After the Law of Succession Act came into force in 1981, the male dominated Parliament intervened and added paragraph 5 to section 3 of the Act by Enactment Number 10 of 1981. The intention of the Legislature was to protect the women married polygamously to men who had also contracted statutory monogamous marriages. Section 3 (5) provides:

"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 section 29 and section 40 thereof and her children are accordingly children within the meaning of this Act."

 

Initially, the courts were rather reluctant to give effect to section 3 (5) for example In the Matter of the Estate of Reuben Mutua. The deceased married Teresia Mutua on 2^nd August 1961 at the PCEA Church in Nyeri under the African Christian Marriage and Divorce Act. In March 1980, Mutua once again being "true to the African manhood" purported to marry Josephine Mutua and that marriage was said to have been conducted in accordance with Kamba law and custom. There were 3 children out of their union. That marriage was never dissolved until 26^th May 1986 when Mutua died in a road accident. There were 7 children of the marriage. He died testate but in his Will did not provide for Josephine and her 3 children.

 

She therefore produced her children’s birth certificates as evidence that the deceased had recognized them as his own in accordance with s 3 (2) of the Act. On her own behalf and on behalf of her children, she applied to the court under section 26 of the Act for reasonable provisions to be made for her and her children out of Mutua s estate. Three issues arose for determination:

i.Whether the deceased’s second wife, married under Kamba customary law, was a wife for the purposes of the Act and if not, whether a marriage could be presumed due to prolonged co-habitation.

ii.Whether the children were lawful dependants of the deceased under section 3 (2) of the Act.

iii.What is the reasonable provision under section 26 of the Act to make for both the second wife and her children?

 

In a careful and detailed judgment from which no appeal was apparently preferred, on the first question the court decided that the deceased having contracted a statutory marriage he lacked capacity to contract another marriage under customary law and therefore Josephine was not a wife for the purposes of the Law of Succession Act and was not entitled to receive any provision from Mutua’s estate.

On the second question, the court held that Josephine’s children were children under section 3 (2) of the Act and therefore they were entitled to reasonable provision for their maintenance out of Mutua's estate.

However, on the third question, no provision was made because the judge noted that doing so would prejudice the work of the executor.

 

With regard to the first question, the court was wrong because it did not address itself to the mischief in the law which section 3 (5) was meant to address and the fact that the definition of "wife" under section 3 (5) is wide enough to include persons of Josephine’s position. Suffice it to say, Kamba Customary law recognizes polygamy. Consequently, the decision in this case has since been overruled in the Court of Appeal decision in Irene Macharia v Margaret Niomo and Patrick Harrison; Jonah Njogu underwent a statutory marriage ceremony with the appellant in 1978. The couple however separated in 1989 and Njogu took and started to cohabit with the first Respondent. The two had a daughter Jackie Njogu. Mr Njogu died in 1990 and the dispute that arose was how the property left behind by the deceased was to be shared out between the appellant and the infant Jackie. In the first instance, the court held that under section 3 (5), a woman married to a man who had contracted a statutory monogamous marriage was a lawful wife for the purposes of the Act and her children are accordingly children within the meaning of the Act. The court also held that Ruenji s Estate and Re Ogolla’s Estate are no longer good law as they were decided before section 3 (5) of Cap 160 came into force. The court also held that the High Court decision in Mutua was wrongly decided. In a unanimous judgment, the Court of Appeal stated that the view that was held by both counsels and apparently by the superior court that the first respondent was not a wife for the purposes of succession was wrong.

 

The Court further stated that the decisions in the above two mentioned cases were, at the time they were passed, correctly reflecting the position of the law as it then stood because the Law of Succession Act though enacted by Parliament in 1972 did not become operational until July 1^st 1981. The courts then correctly held that Ruenji and Ogolla were incapable of contracting other marriages. But, in 1981, sub-section 5 was added to section 3 of the Act which catered for wives married through polygamy to men who had contracted statutory marriages.

In addition, the court held that Mutua was wrongly decided because s 3 (5) of the Act was in force by the time Mutua died. The Court agreed with the appellant that as the widow she was entitled to a share of her husband’s estate available for distribution only because we want to attain that objective namely, not to disinherit a widow. We order that out of 1996,086 available for distribution between the appellant and Jackie, the appellant be given Kshs 10 and the rest should be left to Jackie to be invested in a manner ordered by the judge."

c.      Muslims

As a result of intense agitation by the Muslim Community, between 1981 when the Act came into force until 1990, the Act was amended by Statute Law [Miscellaneous Amendment] Act No. 21 of 1990, which disapplied the Act to persons who at the time of their death were Muslims. Instead, Islamic Law as contained in the Quran governed the Estates of such persons.

d.      Date of Application of the Act

Problems also arose from the application of the Law of Succession Act concerning the administration of estates of those who had died before the Act came into force on one hand and those who wrote their wills before 1^st July 1981 and died after the Act came into force. 

Section 2(1) of the Act provides that the Act is applicable to all Kenyans in matters of testate and intestate succession and applies to all persons who died after 1^st July 1981. However, sub-section 2 (2) provides that for all persons who died before that date, the law of succession to their estate is the law which was in place at the time of their deaths.

The statute goes on to add that the procedural law applicable to the administration of these estates is as laid down in the Law of Succession Act.The solution would be to repeal the conflicting sections of the Act.

 

2.5 Some Benefits of the Act

The Act attempts to embody the African customary law of succession. It provides the indigenous Kenyans with a statute that translates the African beliefs and customary practices to law such as polygamy and the concept of the extended family. The Act makes provision for both polygamous and monogamous marriages and includes all persons who can be identified as having being married to the deceased together with those he had divorced, that is, persons, he had married under any system of law both statutory and customary and they do not have to be alive to inherit, as well as children of such women whether or not maintained by the deceased prior to his death. Section 40 provides for division of the property of an intestate where the deceased is a polygamist.

All the children of the deceased are entitled to inherit in equal shares regardless of their sex or marital status. These children include a child conceived but born after the death of the father as well as a child born out of wedlock when the mother marries somebody else other than the father of the child.

Section 29 (b) extends the ambit of the dependants to include the deceased’s parents, step-parents, grandparents, grandchildren, step children, children whom the deceased had taken into his family as his own, brothers and sisters, half-brothers and half-sisters provided they were being maintained by the deceased immediately prior to his death.

The Act also protects a person’s dependants by limiting the ambit of testamentary freedom. In this regard, the Act departs from the English position. Section 26 provides a clear departure from the English law theory of testamentary freedom. The spirit of section 26 is derived from the African traditional practice in which a person was under an obligation to provide for the immediate members of his family and also those of the extended family provided it was his duty to maintain them while he was still alive.

 

Section 26 curtails the freedom provided in section 5. Furthermore, there was a deliberate effort to provide for all children belonging to the deceased. The definition of a child under section 3 (2) includes an unborn child, any child who is illegitimate or any child who had been recognised by the deceased as his own e.g. an adopted child.

Such provision was discussed in detail in Elizabeth Kamene Ndolo v George Matata Ndolo. In this case, prior to his death in 1994, the deceased had prepared a written Will which provided for only one out of his three wives. The Will was challenged under section 26 of the Act on the basis that the deceased had failed to make adequate provision for some of his dependants. The appeal judges noted that,

“section 26 clearly puts limitation to the testamentary freedom given by section 5 of the Act 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 testamentary freedom by making 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 are dependent on him during his lifetime, the court may well follow the mistress under section 26 and make reasonable provision for his dependent children out of the house given to the mistress. It is not possible for a man in Kenya, for example, to leave all his property for the maintenance and upkeep of an animal orphanage if the effect of doing so is to leave his dependants unprovided for.

 

The dependants include the wife or wives or former wives and the children of the deceased whether or not maintained by the deceased immediately prior to his death, the deceased’s parents, step parents, grandparents, grand children, step children, children whom the deceased had taken into his family as his own, brothers and sisters, half-brothers and half-sisters as were being maintained by the deceased immediately prior to his death. Where the deceased was a woman, her husband, if he was being maintained by her, immediately prior to the date of her death.

With respect to children, the law is fairly clear and the term “children” within the meaning of section 3 (2) and section 29 of the Act is understood to mean any child of the deceased whether by his lawful wife or not. Thus, for the purposes of succession, where bigamy has been committed, the children of such union are protected provided it can be shown that the deceased recognised them as his own children.

CHAPTER THREE

THE LAW OF SUCCESSION APPLYING IN KENYA AFTER 1981

3.1 Introduction

 

The Law of Succession Act was passed with the intention of merging and consolidating all the four systems of law of succession and their support legislation into one comprehensive statute in order to give Kenya a uniform law of succession applicable to all sections of the Kenyan population.

 

3.2 The Law of Succession Act

The Law of Succession Act came about because of a report compiled by a commission appointed by the late President Kenyatta in 1967, to look into the problems concerning the succession regime in Kenya. The purpose and scope of the Act is stated in its preamble.  It is an Act of Parliament to define and consolidate the law relating to intestate and testamentary succession and the administration of estates of persons and for connected purposes. Section 2(1) of the Act provides that the Act constitutes the law of Kenya in respect of and is of universal application to all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of the Act.

Section 99 of the Act repeals all the statutes on the law of succession in force before 1^st July 1981, and these are listed in the 8^th schedule to the Act. They are as follows: the Indian Succession Act 1865, the Hindu Wills Act 1870, the Probate and Administration Act 1881, the Hindu Succession Act, the African Wills Act 1961, the Administration of Estates by Corporations Act, the Commonwealth Probate Act and the Colonial Probate Act 1892. Section 100 provides for the amendment of the other existing statutes, among them being the Mohammedan Marriage, Divorce and Succession Act (Cap. 156), which was harmonized with the Law of Succession Act by the deletion of its section 4, which dealt with matters of succession. 

The Law of Succession Act is the general law of succession in Kenya. Section 2(1) of the Act applies the Law of Succession Act universally to all in Kenya, except for those cases where different laws are applied by the Act itself or through any other written law.

 

3.3 The Application of African Customary Law 

The Judicature Act at section 3 lists African customary law as one of the sources of law in Kenya. Section 3(2) of the Judicature Act provides that the High Court and all subordinate courts are to be guided by African customary law in all civil cases. It applies for as long as it is applicable and not repugnant to justice and morality or inconsistent with any written law.

Jurisdiction over customary law matters is specifically vested in the magistrate’s court by sections 5(2) and 9(a) of the Magistrates’ Courts Act. Under these provisions the magistrate’s court has powers to exercise jurisdiction in proceedings of a civil nature where the proceedings concern a claim under customary law. A ‘claim under customary law’ is defined in section 2 of the Magistrates’ Courts Act to include a claim concerning, intestate succession and administration of intestate estates, but only to the extent that such matters are not governed by any written law, such as the Law of Succession Act.  

 

3.4 African Customary Law and the Law of Succession Act

Section 2(1) of the Law of Succession Act provides that the Law of Succession Act, unless provided otherwise by the Act itself or any other written law, constitutes the law in Kenya on succession matters. In Rono vs. Rono and another, Waki JA stated that the application of African customary law is expressly excluded by section 2(1) of the Law of Succession Act, unless the Act itself makes provision for it. The effect of section 2(1) of the Law of Succession Act is to oust the application of African customary law in succession matters, except in such circumstances as may be allowed by the Law of Succession Act itself.

 

The Law of Succession Act allows the application of African customary law in a number of instances. 

a.               Estates of persons dying before the application of the Law of Succession Act 

Section 2(2) of the Law of Succession Act provides that the estates of persons dying before the commencement of the Act are subject to the written laws and customs applying at the date of their death. Prior to 1981, the intestate estates of deceased Africans were exclusively subject to African customary law, except for estates of those Africans who had made wills under the African Wills Act of 1961. In theMatter ofthe Estate of Mwaura Mutungi, Kamau Ag. J held that where the deceased died prior to the commencement of the Law of Succession Act the distribution of his estate is strictly governed by the applicable customary law, however, the provisions of the Law of Succession Act as provided under section 2(2) govern the administration of the said estate.

b.      Testamentary dispositions in accordance with African customary law

The Law of Succession Act allows, at section 5(1), the testator to dispose of his property by reference to any secular or religious law. This would allow the testator to make a will, which provides that the estate should devolve in accordance with a particular customary law.  For example, he may provide for devolution according to Kamba customary law. In such case, the court has to ascertain the requirements of the particular customary law.

c.      The application of African customary law by section 33 in the event of intestacy

Section 32 of the Law of Succession Act exempts certain classes of property from the intestacy provisions in the Act, and section 33 of the Act applies African customary law to such property. The administration of estates, which are the subject of sections 32 and 33, is not under Part VII of the Law of Succession Act, relating to administration of estates, since section 44(1) of the Law of Succession Act provides that Part VII of the Act does not apply to intestate estates the subject of section 32 of the Act. The provisions of the Magistrates’ Courts Act fill the gap. The estates so exempted from the provisions of the Law of Succession Act are administered in accordance with African customary law. Waki JA inMary Rono vs. Jane Rono and anothersaid that sections 32 and 33 of the Law of Succession Act make provision for the application of customary law in respect of agricultural land and the crops on such land. The application of the law or custom is, however, limited to such areas as the Minister may by gazette specify. By Legal Notice No. 94 of 1981 the Minister specified the various districts to which African customary law should apply. 

 

3.5 Islamic Law and the Law of Succession Act

When the Law of Succession Act came into force in 1981 it was meant to replace the Islamic law of succession, since it sought to consolidate the law in Kenya relating to both intestate and testamentary succession by virtue of section 2(1) of the Law of Succession Act. The Act was also meant to apply universally, that is to all persons resident in Kenya, including Muslims.  

The objective, however, was not attained, since Muslims were in 1990 exempted from the substantive provisions of the Law of Succession Act, through an amendment inserted into the Act to introduce section 2(3) and (4) of the Law of Succession Act. Section 2(3) disapplies the substantive provisions of the Act, those relating to testamentary or intestate succession, to the estate of a deceased Muslim, and instead subjects the estate exclusively to Muslim law.This is reiterated in section 48(2) of the Law of Succession Act, which states that the Kadhis’ courts exercise jurisdiction for the determination of questions relating to inheritance in accordance with Islamic law. 

The exemption, however, only covers substantive law. Section 2(4) of the Law of Succession Act applies the procedural aspects of the Act, principally Part VII relating to the administration of estates, to the estate of a deceased Muslim so long as the said provisions are not inconsistent with Islamic law. 

Under section 5(1) of the Law of Succession Act it would appear that a Muslim could still make a will, provided that the will disposes of his property by reference to Islamic law. If the will disposes the estate in accord with the principles set out in the Quran, it would be acceptable to members of the faith.

 

3.6 The Application of the Statutes repealed by Section 99 of the Law of Succession Act

By virtue of section 2(2) of the Act, some of the statutes deleted by section 99 of the Act are  still of application, but only to the estates of persons dying before the commencement of the Act on 1^st July 1981 where the estates fall for administration after 1^st July 1981. However, the applicable statutes are those on substantive succession law (that is the substance of testate and intestate succession), not the procedural law (that is on administration of estates). Administration of estates of persons dying before 1^st July 1981 is subject to the Law of Succession Act. The relevant statutes are theIndian Succession Act, 1865, the Hindu Wills Act, 1870, and the African Wills Act.

 

3.7 The Application of the Trustee Act, Trusts of Land Act, Public Trustee Act and the Armed Forces Act

Section 101 of the Law of Succession Act refers to the continuation of the application of the Trustee Act, the Public Trustee Act, the Trusts of Land Act and sections 219 and 220 of the Armed Forces Act. These statutes were in place before the Law of Succession Act came into force and they cover various aspects of succession. 

 

The Law of Succession Act does not have elaborate provisions on some aspects of administration of estates of deceased persons, especially those relating to investment and other application of the capital money of an estate, indemnities of personal representatives, powers of personal representatives where personal representatives refuse to exercise their powers of sale, the modes of exercise of powers of sale by personal representatives, among others. The omission was deliberate, as these powers exercisable by personal representatives had already been set out in legislative framework in a number of statutes, particularly the Trustee Act and the Trusts of Land Act. On these matters, the provisions of the Law of Succession Act have to be read together with those of the Trustee Act and the Trusts of Land Act.

 

The Public Trustee Act provides for the appointment of the Public Trustee and defines his powers and duties. Under the Act, the Public Trustee may be appointed personal representative of a deceased person under certain conditions and in respect of a defined class of estates. Section 4 of the Public Trustee Act gives the statute supremacy over the Law of Succession Act, unless it is expressly provided to the contrary in the Law of Succession Act itself. Sections 219 and 220 of the Armed Forces Act concern the estates of deceased soldiers. The provisions are principally about execution of soldiers’ wills and the administration of the estates of soldiers.

3.8 Exemption Relating to Movable Property

By virtue of section 4(1) (b) of the Law of Succession Act, the law of succession that applies with regard to moveable property is the law of the country where the deceased is domiciled. Waki J InRe Estate of Naftali (deceased)( held that for the purpose of the distribution of such property the grant of  representation ought to be obtained from the domicile of the deceased at the time of his death. Conversely, by dint of section 4(1) (a), succession to immovable property in Kenya of a deceased is regulated by the law of Kenya regardless of the domicile of the deceased at the time of his death. Kuria and another vs. Kuria(2004) eKLR 

 

PART 2: TESTATE SUCCESSION

CHAPTER FOUR

4.0 WILLS

4.1 Introduction

Testate succession occurs where a person, desirous of retaining absolute or limited control over his property after death, arranges to ensure that upon his death the property passes to a person or persons of his choice.  These arrangements are made through a valid will.

 

4.2 Nature and Function of Wills

A will is defined under section 3(1) as the legal declaration by a person of his intentions or wishes regarding the disposition of his property after his death duly made and executed in accordance with the Act.  

A will is chiefly concerned with disposing of property, but it can be used for other purposes and for incidental matters, such as : the appointment of persons to administer the estate of the testator; the appointment of the trustees to administer trusts set up under will; the appointment of guardians for children of the testator who are minors at the date of the testator’s death; making directions as to payment of taxes and other liabilities of the dead person; and giving directions as to the manner of disposal of the deceased’s body.

 

4.3 Characteristics of a Will

A will being a testamentary document has no legal effect until the maker dies.  While he is alive, it neither limits his rights of ownership nor confers any benefits to anyone.  Before the testator’s death, the document is a mere declaration of intention with no legal effect whatsoever. A will has five essential characteristics/elements: 

(a) The wishes expressed are only intended to take effect on death

Any document made or executed in accordance with the law, may take effect as a will if the intention was that it should not operate until after the death of the maker.  Where there is nothing in the instrument or document showing that it has reference to the death of the person executing it cannot take effect as a will.  Even if a document is described as being a will, it does not follow that it is in fact a will.  If the provisions of the document are to take effect sometime before the death of the person drawing up the document, it is not a will.  

 

(b) A will only takes effect after death

The wishes expressed in a will are intended to take effect upon or after death.  A will therefore only takes effect upon death. Beneficiaries under a will do not acquire an interest in the property before the testator’s death – so that a gift to a beneficiary who dies between the making of the will and the death of the testator elapses.

(c) A will only operates as an expression of intention

The execution (making) of a will does not affect the way in which the testator deals with his property during their lifetime.  A testator is free to dispose of the property given in the will by sale or gift during their lifetime.  It is not a fetter to the testator’s freedom to deal with their property as they please during their lifetime.  The testator cannot be certain that a beneficiary will receive a particular asset, which is given to them by will.  The personal representatives/executors are under a duty to settle all debts and liabilities of the deceased (see section 83 (a), (b), (c) and (d) of the Law of Succession Act.Section 79 of the Act vests the property of the deceased in the personal representative or executor while section 82 of the Act gives them a general power of sale.  If the debts of the estate are large, the gifts, including gifts of a specific asset, may be absorbed in the payment of debts.  A will therefore is a mere declaration of intention, there is no guarantee that the wishes expressed in it would be carried to effect.

(d) A will is ambulatory

The fact that a will takes effect upon death makes it ambulatory.  It is capable of dealing with property that is acquired after the date of the will. For example, if Onyango executed a will in 1997 containing a clause to the effect that the entire testator’s land was to pass to Owiti, this would include any land acquired by Onyango after 1997.

 

(e) A will is always revocable

Because a will takes effect upon death and because it is a mere declaration of intention it is always revocable.  It may be revoked even where it expressly states that it is not revocable.

 

4.4 The Advantages of Making a Will

Majority of people die without having made a will for various reasons: reluctance to contemplate their own death, belief that a will is pointless in their case and ignorance as to the possibilities open to them. There are advantages to be gained from making a will. 

 

(a) Maintaining control over property

 The making of a will enables the testator to maintain control over property.  This is especially important for a person with a spouse and children. For example, if a wife makes a will leaving the entire estate to her husband, she loses control over the ultimate destination of the property on the death of her husband if she dies first.  She simply has to hope that he will dispose of what was originally her estate to the children of the marriage rather than marrying someone else after her death and leaving the combined estate to his second wife.  She could achieve control by giving her husband simply a life interest in her estate with the remainder passing on his death to the children.  A life interest only entitles the husband the income for the estate.

 

(b) Avoiding the rules of intestacy

The making of a will avoids the rules of intestacy.  The intestacy provisions ensure that the next of kin of the deceased benefit from his estate, but the shares of the estate, which the next of kin receive, are arbitrary and they are often unsuitable in the circumstances. A will is a personal document and it is preferable to use it as a last beneficial act rather than to allow the impersonal provisions of intestacy to take effect.

 

(c) Enabling the deceased to appoint personal representatives of his own choice

The making of a will entitles the testator to appoint personal representatives of his own choice to administer his estate. Since these are personally appointed by the testator he would be reasonably sure that his estate will be well administered after his death by persons in whom he has confidence and who probably are already acquainted with the estate during his lifetime.  If a person dies intestate the persons who administer the estate (personal representatives) are appointed by the court and the deceased will have no choice in the matter.

 

(d) Administrative convenience

Administrators of estates derive their authority to administer the estate from the grant of letters of administration while the executors derive their authority from the will.  As they derive their authority from the will executors can begin to administer the estate from the date of the deceased’s death.  The grant of probate merely confirms their authority.  The grant of letters of administration takes time, which means there is always a considerable lapse of time between the death of the deceased and the grant of letters.  The estate of an intestate cannot be administered until after the grants of letters have been obtained.  The dependants of an intestate are therefore exposed to inconvenience.  Thus through a will a testator ensures that their estate may be dealt with immediately upon his death.  A further aspect of administrative convenience in executing a will is that it is possible to give many useful and desirable powers of administration to the executors under the will.  The powers of the administrator of an intestate’s estate are limited by statute – the Law of Succession Act – they are statutory.

 

(e) Full disclosure of the deceased’s property

The making of a will enables the testator to make a full disclosure of all the property they own or die possessed of, which is not possible in case of intestacy where a lot of the undisclosed property or assets may be lost.

 

(f) Avoiding disputes over the estate

In the first place, by providing how and to whom property is to pass upon the testator’s death making a will avoids squabbles between heirs and survivors over the estate. 

 

(g) Benefiting persons outside the immediate family

The rules of intestacy only make provision for the deceased’s next of kin.  It is only by making a will that a testator can benefit persons outside the immediate family circle.

 

(h) Appointment of testamentary guardians

A will enables a parent who has minor children, if they so wish, to appoint a guardian or guardians to take parental responsibility for the children should he or she die while the children are minors. This is important where the parent is single. 

 

(i) Directions regarding disposal of deceased’s body

A will may also be used to give directions regarding the disposal of the dead person’s body.  This could be in terms of the precise method by which their body is to be disposed of (i.e. burial where and how, cremation etc) or they may wish that their body or a part of it be donated to medical education, research or treatment of patients.  Such provisions or directions have no binding legal effect as the law recognizes no property in the dead body of a human being.  

 

4.5 Property passing on Death other than by Will

Property is capable of passing on death other than by will.  It may pass by: survivorship, under a nomination and as a donatio mortis causa.

 

(a)  Survivorship

This applies in cases of joint tenancies, where property is jointly owned.  Where a co-owner of property is a beneficial joint-tenant of the property, whether real or personal, their interest will automatically pass to the surviving joint tenant(s) on their death by virtue of that principle of survivorship – the principle of jus accrescendi. Upon the demise of one of the tenants, that tenant’s interest would merge with that of the surviving tenant. For example, where the matrimonial home is held by a husband and wife as joint tenants and the husband predeceases the wife, the house will pass to the wife by reason of the survivorship.

 

The principle of survivorship operates to remove jointly owned property from the operation of the law of succession, upon the death of a spouse who jointly owns property with the other spouse their interests unite and the property passes to the surviving spouse. It does not form part of the deceased spouse’s estate and it cannot pass by that deceased spouse’s will. This contrasts with the operation of the principle of tenancy in common.  The interests of common tenants are clear and distinct.  The interests are not united.  In the event of the death of the one tenant, there is no merger or union of interests.  The beneficial share of a common tenant who is deceased can pass under their will.

 

The Law Succession Act at section 43 provides that for the purposes of determining survivorship in the event of two or more persons dying simultaneously it shall be presumed that the deaths occurred in order of seniority with the younger person surviving the older person, but in the cases of spouses, it shall be presumed that they died simultaneously. Such property in the case on non-spouses should devolve to different people upon the tenant’s death, it is therefore necessary to determine who died first.  In the case of spouses, the property should pass to their children or to the same dependants it would not matter therefore who between husband and wife died first.

 

Under section 91(3) of the Land Registration Act an instrument made in favour of two or more persons and the registration giving effect to it shall show:

(a) Whether those persons are joint tenants or tenants in common; and

(b) The share of each tenant, if they are tenants in common

Section 91(4) of the Land Registration Act furtherprovides that If land is occupied jointly, no tenant is entitled to any separate share in the land and, consequently:

(a) dispositions may be made only by all the joint tenants

(b) on the death of a joint tenant, that tenant’s interest shall vest in the surviving tenant or tenants jointly; or

(c) each joint tenant may transfer their interest inter vivos to all the other tenants but to no other person, and any attempt to so transfer an interest to any other person shall be void.

 

(b)  Nomination 

A nomination is a direction by a person, called the nominator, to another who is holding investment on their behalf, to pay the funds on the nominator’s death to a third party, called the nominee, nominated by the nominator during the nominator’s lifetime. The direction is made by the nominator during the nominator’s lifetime, but like a will, the gift only takes effect upon the death of the nominator. Nominations operate under the rules of a particular scheme and although it does dispose of property upon death, it does not comply with the formalities of the Law of Succession Act. Nominations are classified into statutory nominations and nominations under a discretionary pension scheme.

The property the subject of a statutory nomination does not form part of the nominator’s estate, and it cannot therefore pass under a will.  It does not vest in the personal representatives of the deceased, as it does not form part of the nominator’s estate. Consequently, the payer (the person having the investment) does not require a grant (of probate or letters of administration) before paying the funds to the nominee.  The direction is to pay only on death and therefore the payer will want to see the nominator’s death certificate before making payment. As with the beneficiary under a will, the nominee does not have an interest in the nominated funds during the lifetime of the nominator, who may deal freely with the property at any time during their life. A nomination may be revoked by: a later nomination; the subsequent marriage of the nominator; and the death of the nominee prior to the death of the nominator. A nomination cannot be revoked by a subsequent will or codicil.

 

In Kenya, nominations are made mainly with respect to savings and investments in co-operative societies and provident or pension schemes.  The nominations under the Co-operative Societies Act 1997are statutory. Section 39(1) of the Co-operative Societies Act 1997 provides that on the death of a member, a co-operative society may transfer the share or interest of the deceased member to: a person nominated in accordance with the Act or the rules made under it; or if, no person has been nominated, to such person as may appear to be the personal representative of the deceased member. The shares can only be transferred to the personal representative of the deceased member where there is no valid nomination in place.

 The nomination under the discretionary pension schemes are not binding on the trustees of the scheme since the trustees are usually given discretion under the rules of the scheme to exercise  their  discretion in favour of the nominated person or pay disregard the nomination altogether and make payment to the dependants of the deceased.

Under rule 19 of the Retirement Benefits (Individual Retirement Benefits Schemes) Regulations 2000, the scheme rules should provide that on the death of a member the benefits payable from the scheme should be paid to the nominated beneficiary, and if the deceased had not named a beneficiary then the trustees should exercise their discretion in the distribution of the benefits to the dependants of the deceased. There is a proviso that the trustees may refuse the nominated beneficiary for stated reasons. Rule 23 of the Retirement Benefits (Occupational Retirement Benefits Schemes) Regulations 2000 is in similar terms.

 

(c)  Donatio mortis causa or gift in contemplation of death

A donatio mortis causais a gift made by a person during their lifetime that is conditional upon their death.  It may be said to be of amphibious nature being a gift, which is neither entirely inter vivos nor testamentary gift.

A donatio mortis causa is similar to a lifetime gift in that the subject matter of the gift is delivered to the donee during the donor’s lifetime, but the gift takes place upon the death of the donor. A donatio mortis causa cannot be revoked by a subsequent will.  It cannot be given away as a gift under a will to someone else.  It is not free property it cannot therefore be the subject of a will.  This means that if a donor delivers property during their lifetime, with the intention of making the gift conditional on death, and then thereafter makes a gift of the same property by will to another person, the beneficiary named in the will receives nothing. As donatio mortis causa is not a testamentary gift the subject matter cannot form part of the deceased’s estate upon death, but if the estate proves insufficient to pay the deceased’s debt(s) the subject matter of a donatio mortis causa may be used.

Lord Russell in the case of Cain vs. Moonset down the conditions, which need to be satisfied for a valid donatio mortis causaor gift in contemplation of death. The burden of proving that all four conditions have been met lies with the donee. Donatio mortis causa or gifts in contemplation of death are dealt with by section 31 of the Law of Succession Act, which incorporates the conditions set out in Cain vs. Moon.

 

(i) It must be a gift in contemplation of death  

Section 31(a) provides that a gift in contemplation would be valid if the person making the gift is at the time contemplating the possibility of his death because of a present illness or present or imminent danger. The death of a donor need not be imminent, but the donor must believe that they are dying or they are likely to die in a particular way e.g.They may believe that they are dying from a terminal disease or at risk of dying from a dangerous expedition.

 

It is generally irrelevant that the donor dies from some cause other than the one within their contemplation so long as the condition from which the deceased thought he was dying continued up to the date of the donor’s death.  Section 31(e) provides that the gift would be valid if the person making the gift dies from any cause without having survived the illness or danger. In Wilkes vs. Allington,this condition was deemed not even though the deceased thought he was going to die of cancer but in fact died of double pneumonia.  The gift would fail if the donor survives the contemplated illness or danger but dies of a different cause. 

 

The condition that the gift be made in contemplation of death cannot be satisfied where the donor contemplates their own death by suicide, section 31(f) (i) provides that no gift made in contemplation of death shall be valid if the death is caused by suicide. Agnew vs. Belfast Banking Co.Held it was against public policy to uphold a gift which was intended to take effect by means of suicide. In Re DudmanDonor committed suicide, as he could not cope with his terminal illness.  The court followed Agnew vs. Belfast BankingCoand in addition, held that the donation failed on the ground of public policy. The legal portion stated in these two cases is no longer valid in England following the enactment of the Suicide Act, 1961 that decriminalized suicide.  The Pre-1961 position in England is still the law in Kenya by virtue of section 31(f) of Law of Succession Act.  

The contemplation of death may be expressed or implied from the circumstances. In Lillingstonthe donor expressed opinion that she was “done for” and the court inferred that the gift was made in contemplation of her death.

 

(ii) It must be conditional on donor’s death

If the donor does not die, the gift will not take effect and the donor will be entitled to recover possession of the property from the donee. A gift can expressly be stated by the donor to be conditional upon death.  It may also be implied from the circumstances.  The courts are likely to imply that the gift is conditional on death if it is made in the last few days of the donor’s final illness.  However, where a gift in these circumstances is made in writing as opposed to orally it is presumed by the court that the gift is not a donatio mortis causa, but either an attempted lifetime gift or a failed testamentary gift as provided for in Edward vs. Jones.

 

A gift in contemplation of death should be distinguished from an oral will in that an oral will is usually not made in contemplation of death. The failure of the contemplated death to occur leads to the termination of the gift in contemplation of death, the same does not apply to an oral will. 

For the gift to be said to have been made conditional upon death, the death of the donor should not be a certainty, as there is a possibility that the gift can be revoked by the recovery of the donor. The Kenyan law on this condition is section 31(d)and section 31 f (ii). Section 31(d) provides that a gift in contemplation of death would be valid if the donor makes the gift in such circumstances as to show that he intended it to revert to him should he survive the contemplated illness or danger. A donatio mortis causa is revocable and section 31 f (ii) states that the donor may at any time before his death lawfully request the donee to return the gift.

 

(iii) It must be delivered to the donee

The donor must have handed over to the donee or his agent the subject matter of the gift or the means of controlling it.  The donor must have parted possession with or parted with dominion over the subject matter of the gift. Section 31(c) of the Act states that a gift in contemplation of death would be valid if there is delivery to the intended beneficiary of the possession of the property or of the documents or other evidence of title of the party. 

 

In Wildish vs. Fowlera landlady was handed property by her sick tenant with instructions “take care of this”.  It was held there had been no donatio mortis causa of the property as the donor had not parted with dominion over the property.  The property was delivered merely for the purpose of safe custody. In Cain vs. Moonthe donor originally delivered a deposit note to her mother for safe custody.  She later became very ill and at a time when it was likely that she was going to die she told her mother that the deposit note along with other property was to be the mother’s should she die.  It was held that there was effective delivery of the property.

 

(iv)It must be capable of making the subject matter of a donatio mortis causa

The property the subject of the gift should be capable of being the subject matter of such a gift.  It should be capable of being donated. Section 31(b) of the Act provides that a gift in contemplation of death would be valid if a person gives movable property that he could otherwise dispose of by will. Property that cannot be disposed of by will cannot be donated.  A testator can only dispose of free property by will, therefore only free property can be subject of donation. Cheques and promissory notes drawn by the donor cannot be a donatio mortiscausa. It was held in Re Beaumontthat a cheque cannot form the subject of a donatio mortis causa as it is not enforceable without consideration. It was held similarly in Leaperwith respect to a promissory note.    

 

It was suggested obiter dicta in by the House of Lords in Duffield vs. Elwes that the land either freehold or leasehold could not form the subject matter of a donatio mortis causa. The Law of Succession Act appears to imply that this dictais the law in Kenya as section 31 only covers moveable property.  Section 31(b) provides that a gift in contemplation of death would be valid if a person gives movable property (not immovable) which he could otherwise dispose of by will. The most recent English decisions however suggest that unregistered freehold property could form the subject matter of a donatio mortis causa.

 

(v) Donee must survive the donor

The gift is not be effective where the donee predeceases the donor.  Section 31(f) provides that the gift would be valid if the donee survives the person who made the gift to him. If the intended donee predeceases the donor, his estate would have no cause of action against the estate of the donor.

 

4.6 Conditional and Joint Wills 

The Law of Succession Act does not cover these.  They are rare.  In the event of a local court being confronted with such wills, the English Law on the matter would be persuasive.

 

(a) Conditional wills

This refers to a will intended to operate only upon the happening of some event unspecified in the will.  If the event fails to occur the will would be ineffective, e.g. a testator providing that his will is to operate only if the wife predeceases him. For example, a testator providing that his will would operate only if he dies on a dangerous trip which he  is about to undertake.

It is sometimes difficult to decide whether the danger to be faced is merely the motive for making the will or whether death in the envisaged circumstances is the pre-condition for the operation of the will.  If it is a motive the will would be effective, but if it is a pre-condition it would be ineffective.

 

InRe Spratt’s Goodsan army officer serving in the New Zealand during the Maori War made a privileged will.  The same took the form of a letter to his son leaving everything to him should anything happen to the officer.  He did not die in the war but he lived on for 32 years without making a new will or revoking the privileged will.  It was held that the privileged will was admissible to probate and the son was entitled to take all of his father’s estate.In the Goods of Dobsonthe testator’s will commenced with the words “in case of any fatal accident happening to me being about to travel by railway, I leave …” It was held not be a conditional will.  His belief that he might die in the course of the journey was merely the motive in making the will, it was not a precondition that he died on the journey before the will operated.

Whether a will is conditional or not is purely a matter of construction. In Lindsay vs. Lindsay a will commenced “if I should die at sea or abroad …” It was held, as matter of construction, to be conditional. When the testator died in England, i.e. while not at sea or abroad, it was held to have no effect as the pre-condition of dying at sea or abroad was not satisfied.

 

(b) Joint wills

A joint will is created where two or more persons express then wishes on death in one document. The joint will takes effect as the separate wills of the parties who made it.  For example, a husband and wife could make a joint will.  If wife dies first it would be admitted to probate as the wife’s will in the first instance, then when the husband dies, it would be admitted to probate as the will of the husband.

 

CHAPTER FIVE

THE CREATION OF A VALID WILL

 5.1 INTRODUCTION

A will is only valid if a person of sufficient age and of sound mind makes it in the proper form.

Before a will can take effect, it must first be proved to be a valid testamentary disposition.  The process of proving the formal validity of a will is referred to as propounding the will. Here it is necessary to consider the form of the will and determine whether the formal requirements have been complied with; whether the testator had capacity to make the will and whether the will was made voluntarily without any duress, undue influence or by mistake.

 It may also be necessary to consider whether the testator in fact revoked the document alleged to be a will before his death.

The validity of a will is predicated upon capacity and form.

 

5.2 CAPACITY

At common law, a will is invalid unless made by a person who at the time of making it has the capacity to do so. As a rule infants and persons of unsound mind are incapable of making a valid will. The common law position regarding testamentary capacity is reflected in section 5 of the Law of Succession Act. 

Section 5(1) essentially embodies the principle of testamentary freedom; by providing that any person is capable of disposing of all or any of his free property by will so long as he is of sound mind and not a minor. The testator may make any disposition by reference to any secular or religious law that he chooses.

a.               Age

A will made during infancy is invalid unless the testator upon reaching the age of majority re-executes it or makes a new will or codicil confirming it. When a minor dies, his estate should pass in accordance with the rules of intestacy.

b.       Mental or testamentary capacity

Persons of unsound mind are incapacitated from making a valid, although this does not mean that such persons are destined to die intestate. If such a person makes a will during a lucid interval such a will is valid. In Vijay Shah vs. Public Trustee, the deceased was very sick from syphilis and diabetes at the time he executed his will, but it was held by the Court of Appeal, on the evidence, that he executed the same during a lucid moment and therefore the will was valid.

The test of mental capacity to make a will is not directly linked to mental disorder. Cockburn C.J. set the test in Banks vs. Good fellowin the following terms:-

 

“He must…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, a recollection of the property he means to dispose of, and of the persons who are the objects of his bounty and the manner it is to be distributed between them.”

This test requires three things of the testator: 

• He must have a sound mind enabling him to understand the nature of the act of making a will and its effects. He would lack a sound mind if he does not understand what he is precisely doing, either because he is of low mentality or is under the influence of drink or drugs.
• He must have a sound memory enabling him to have a recollection of the property of which he is disposing.
• He must have a sound understanding and should appreciate the moral claims upon him. He should be able to remember the persons he is morally to provide for having regard to their relationship him.

 

InHarwood vs. Bakera testator executed his will on his death bed and left all his estate to his second wife to the exclusion of other family members. He was at the time suffering from a disease that affected his brain. It was held that based on the evidence, he did not have sufficient recollection of his other family members.

 

At the common law the burden of proving testamentary capacity is on the executors. The Law of Succession Act takes a different position form the common law. The burden of proof is shifted under section 5(4) to the person alleging that the testator was not of testamentary capacity or was of unsound mind at the time of making the will.Section 5(3) of the Law of Succession Act creates the presumption that a person making a will is of sound mind unless the contrary is proved. 

c.       Insane delusions

The fact that the testator is labouring under insane delusions is not necessarily fatal to the validity of a will so long as the delusions leave the testator’s power of understanding unimpaired. According to the court in the case of Dew vs. Clarka person suffers from an insane delusion if he holds a belief of a particular matter which no rational person could hold and the belief cannot be eradicated from his mind by reasoning with him.

An insane delusion will only affect the testator’s capacity to make a will if it in some way affects the way he disposes of his property.According to the Tanzanian Court of Appeal in Vaghella vs. Vaghella, for delusions to be material in the testamentary context, there must be a connection between the will and the delusions, the poisoning of affections and the perversion of the sense of right. In Dew vs. Clarkthe testator made a will which excluded his daughter from benefit. The daughter showed by way of extrinsic evidence that the testator had an insane aversion of her. He had refused to see her for the first three years of her life and he had made her sleep with an insane woman.

In Re Nightingalelack of mental capacity was shown when a son was excluded from his father’s will because the father wrongly and insanely believed that the son was trying to kill him by reason of the fact that the son had on two occasions pushed him back on the pillow as the father was struggling for breathe in a hospital after an operation on his lungs.

 

 In Banks vs. Good fellowthe testator believed that evil spirits and a person who was already dead were pursuing him.  The court found that although the testator suffered from an insane delusion the same did not affect his testamentary capacity as the delusion did not affect the way in which he disposed of his property by will.  The will was held to be valid.

5.3 Knowledge and Approval

In addition to having testamentary capacity, a testator must know and approve the contents of their will. A testator knows the contents of the will if he is aware and understands the terms of the will. He need not understand the precise legal effect of the terms. A testator approves the terms of the will if he executes it in those terms on his own volition and not because of coercion or undue influence of another. The knowledge and approval of the testator may also be absent because of mistake or fraud. This requirement is of particular significance when the will is drawn up for the testator by a third party e.g. a friend, a relative or a professional person such as an advocate.

Gicheru JA stated in John KinuthiaGithinji vs. GithuaKiarie and others Nairobi CACA No. 99 of 1988 that it is 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.

 

Section 7 of the Law of Succession Act provides that a will caused by fraud, coercion, importunity or mistake is void (the Kenya law).

 

(a) Time of knowledge and approval

The point at which the testator must know and approve the contents of their will is at the time of execution.  There is an exception to this general rule set out in the cases of Parker vs. Felgate (1883) 89 PD 171andIn the Estate of Wallace(1952) 2 TLR 925 that a will may be valid despite lack of knowledge and approval at the time of execution so long as: one, he testator knew and approved the contents of the will at the time at which he gave instructions to the advocate to draft their will; two, the will was prepared in accordance with his instructions; and, at the time the will was executed the testator understood that he was executing a will for which he had earlier given instructions;

 

In the Estate of Wallace (1952) 2 TLR 925the testator who was seriously ill had written and signed a document entitled “last wish”.  At the time of execution, he knew and approved the contents of the document.  A solicitor then prepared his will in accordance with the document.  At the time when the testator executed the will, a day before he died, he did not know and approve the contents of the will that were not read over to him.  It was held that the will was valid.

 

(b) Burden of proof

The Law of Succession Act is silent on the issue of burden of proof to establish knowledge and approval, the common law position is that the onus lies on the propounder of the will.  A presumption of knowledge and approval arises once it is established that the testator had testamentary capacity and that the proper formalities for the execution of the will have been complied with. The evidential burden shifts to the person attacking the will to provide evidence to rebut the presumption. The presumption of knowledge and approval will not arise where: the testator is blind, dumb or illiterate or the will is signed on behalf of the testator and where are suspicious circumstances.

 

The Kenyan law on knowledge and approval is section 11(a) of the Law of Succession Act and Rule 54(3) of the Probate and Administration Rules. Section 11(a) of the Act provides that for a will to be valid and properly executed it must be signed by the testator or by someone else in the presence of and by the direction of the testator. Rule 54 (3) of the Probate and Administration Rules provides that where the testator is blind or illiterate or where a will is signed by another person by the direction of the testator or where it appears to be written in a language with which the testator is not familiar evidence is required before the will is admitted to probate. Rule 54 (3) makes it mandatory for the court to satisfy itself that the testator had knowledge, by requiring an affidavit showing that the contents of the will had been read over and explained to and appeared to be understood by the testator immediately before the execution of the will.

In Karanja and another vs. Karanja (2002) 2 KLR 22, Githinji J stated that the burden of proving that a will was caused by fraud or coercion or importunity was on the person alleging the same.In In the Matter of the Estate of Jefferson Gathecha (deceased) Nyeri HCSC No. 75 of 1995 (Juma J), the deceased died testate. His will was challenged on the grounds that he was too ill to have written and executed it. In upholding the will the court held that the burden of proving that the deceased lacked capacity to make the will or that the same was a forgery lay with the those making those allegations, and in this particular case they had failed to prove those allegations to the required standard

 

To ease the matter it would be prudent at the time of drafting the will to include as part of the attestation clause words to the effect that the will was read over to the testator and that they thoroughly understood and approved the contents. 

 

(c)  Suspicious circumstances

Where a person who writes or prepares the will takes a substantial benefit under the will, this will be regarded as a suspicious circumstance. In Vijay Chandrakant Shah vs. The Public Trustee Nairobi CACA No. 63 of 1984, Platt JA stated that 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. Similarly, where a person suggested the terms of the will is the testator, that is other than writing the will himself, and takes that testator along to the advocate of that person’s choice the circumstances will be regarded as suspicious. In Tyrell vs. Painton(1894) P 151, it was held that it would be a suspicious circumstance if the will is written or prepared by a close relative of a substantial beneficiary. In Wintle vs. Nye (1959) 1 All ER 552 the testatrix was an elderly woman who had no experience of dealing with money.   She placed heavy reliance on the family solicitor.  She left most of her sizeable estate to him.  It was held that the circumstances were suspicious.  Lord Reid at page 561 quoted Sir, J. P. Wilde in Atter vs. Atkinson (1869) LR 1 P & D 665 where it was said;

 

The proportion however is undoubted that if you have to deal with a will in which a person who made ithimself takes a large benefit, you ought to be satisfied, from evidence calculated to exclude all doubt thatthe testator not only signed it, but that he knew and approved of its contents.

 

In Barry vs. Bultin(1838) 2 Moo PC 480 a testator made a will at the home of his solicitor, in the solicitor’s handwriting and left a ¼ of the estate to the solicitor and the rest to friends. The testator’s son challenged the will on the grounds of (among others) suspicious circumstances.  It was held that the circumstances were on the face of it suspicious, but the suspicion was dispelled by two factors: the fact that the will was executed before two independent witnesses and the fact that the testator’s son was excluded from the will because of his criminal conduct.

 

In Mwathi vs. Mwathi and another (19 ,.,;.;.;.  95-1998) 1 EA 229 (Gicheru, Kwach and Shah JJA), the deceased died 1965 at 65.  He never married and left behind no wife or children.  A brother and two sisters survived him.  He owned real property.  Two days before his death, he made a will under the terms of which he bequeathed the property to the brother.  According to the brother, the deceased dictated his wishes and the brother reduced them into writing.  The will was then thumb-printed by the deceased and witnessed by, among others, the brother and his wife.  Following the death of the deceased the brother applied for grant of probate of the will of the deceased and letters of administration were issued to him.  The sisters sought a revocation of the grant on the grounds of suspicious circumstances.  It emerged that shortly before the execution of the alleged will; the brother had removed the deceased from their mother’s house to his (the brother’s) house for baptism and then shifted him back.  It also emerged that when he (the brother) wanted the deceased to dictate and execute the alleged will he moved the deceased again from their mother’s house to his own house.  At the same time, the brother exhibited considerable animosity towards the sisters whom he prevented from entering his house.  At the time, the deceased allegedly dictated the will he was quite ill and could not walk without support.  It was held by the High Court that the circumstances excited suspicion and that the will was therefore invalid.  The grant was revoked.  An appeal to the Court of Appeal on this aspect of the High Court decision was rejected, with the Court of Appeal stating that the brother was not only the author of the will but also the sole beneficiary under it he had a duty to do everything above board.

 

(d)  Mistake

The knowledge and approval of the testator may be absent because of a mistake on the part of the testator or of a person employed by him to draft the will.  The mistake may relate to part or whole of the will.  A mistake relating to the whole will renders it invalid, while a partial mistake may be corrected or otherwise that portion of the will revoked. In the Goods of Hunt (1875)LR P & D 250 the mistake related to the whole will.  A woman living with the sister prepared two wills in similar terms for their respective execution.  By mistake, she executed the will of the sister rather than the will she had prepared for her own.  Probate of the will was not granted on the grounds that the woman would not have executed the will had she known it had the content of the will she had drawn up to her sister.

 

In Re Morris (1970) 2 W.L.R 805 the testatrix made a will, but after sometime 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 inserted an erroneous figure.  The testatrix executed the codicil upon merely passing a glance through it but without reading the contents.  The executors brought an action asking to be allowed to use the right figure instead of the erroneous one.  The court allowed them to do so.In Re Phelan (1972) Fam 33the testator bought some pre-printed forms from a stationer. He thought that each gift had to be put on a separate form.  He made four separate gifts on four forms.  Each form had a standard revocation clause at the top.  He then executed the forms each after the other on the same day.  It was argued that only the gift on the last form to be executed was admissible to probate as the revocation clause on each form revoked the precious form executed, which meant that the testator died intestate in respect of the other gifts.  It was held that the testator did not know or approve the contents of the wills as far as they related to the revocation clauses in each of the three wills. The court admitted all four wills to probate without the revocation clauses.

 

If the testator does know and approve the contents but is mistaken as to the legal effects of the words the will be considered valid and admissible for probate. In Collins vs. Elstone (1893) P.1 the testatrix was given incorrect information as to the extent to which a revocation clause in her will operated but she executed the will.  It was held that the will was valid and admissible to probate, as she knew about and had approved the contents the words notwithstanding.

 

(e)  Coercion or undue influence

The knowledge or approval may be absent owing to coercion or undue influence being exercised on the testator. Undue influence occurs when a testator is coerced into making a will or some part of it that he does not want to make. Undue influence is proved if it can be shown that the testator was induced or coerced into making dispositions that he did not really intend to make. It is common where the testator is of weak or impaired mental capacity or in failing health. The circumstances in the case of Mwathi vs. Mwathi and another (1995-1998) 1 EA 229 (Gicheru, Kwach and Shah JJA), demonstrate the exercise of undue influence or coercion on a deceased person.  At the High Court Bosire J (as he then was) said:

 

The petitioner was obliged 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 having unduly influenced the deceased to will his property to him.

 

A distinction should be drawn between undue influence and persuasion In the Matter of the Estate of James NgengiMuigaiNairobi HCSC No. 523 of 1996 (Koome J),n.  Lord Penzance in Hall vs. Hall (1869) LR 1 P & D 481 brought out the distinction as follows: -

 

Persuasion is not unlawful, but pressure of whatever character if so exerted as to overpower the volition without convincing the judgement of the testator will constitute undue  influence though no force  is either  used or threatened.

 

Persuasion is lawful, that is where a person is pressurized through persuasion to dispose of and disposes of property in a particular way.  In Wingrove vs. Wingrove (1885) 11 PD 81 it was remarked that if a young man became caught in the toils of a harlot who was able to exert much influence over him and induced him to make a will in her favour to the exclusion of his wife and children, this would not amount to undue influence. In Wingrove vs. Wingrove (1885) 11 P. D 81 Sir James Hannen said at Page 83

 

To make a good will a man must be a free agent.  But all influences are not unlawful.  Persuasion appeals to the affections 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 fairly be pressed on a testator. On the other hand, pressure of whatever character whether acting on the fears or 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 no 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.

 

In Wambui and another  vs.  Gikonyo and others (1988) KLR 445 (Gachuhi, Apaloo JJA and Masime Ag. JA) the deceased who was illiterate gave instructions regarding the disposal of his assets upon death, which instructions were reduced into writing by one of the people present.  He distributed his land to his wife and children including the appellant, a married daughter.  The document was thumb printed by the deceased in the presence of two witnesses who did not however sign it.  When the appellant was told by the father of the gift, she said she would not believe it unless another document was made to show her father’s good faith.  The deceased caused another document to be prepared which he thumb printed after it was signed by the attesting witnesses; the appellant sought a grant of probate on both documents.  The other beneficiaries alleged that the same was not valid, as coercion had been exercised on the deceased to make a will in the appellant favour.  It was held that there was no coercion.  The evidence suggested persuasion only, yet persuasion is not unlawful.  The Court of Appeal said that in the second document the deceased only confirmed the earlier document as he distributed his estate in the second document as per the terms of the first.

 

Coercion amounting to undue influence can take various forms – actual physical force or the incessant talking to a sick, frail or elderly testator.  The burden of proof lies with the person alleging coercion or undue influence. In In the Matter of Philly Nyarangi Otundo (deceased) Nairobi HCSC No. 2078 of 1997 (Aluoch J), a will was challenged on the grounds that it was a forgery and the executors named in the will were strangers to the family of the deceased. The will had been executed by the deceased while on her sick bed. The court found that the deceased had made the will freely, and that the applicants had not proved their case. In  In the Matter of the Estate of James NgengiMuigaiNbi HCSC No. 523 of 1996 (Koome J), undue influence was alleged in the matter because it was the eldest son of the deceased who suggested that he should write a will and got the family priest to convince the deceased to make the will. The objectors also pointed out that the deceased was living in the house of the said eldest son and therefore the eldest son must have driven the deceased into making the will in the manner he made it. The court was not convinced that the eldest son had exercised undue influence on the deceased as the deceased had previously donated a power of attorney to the son to act on his behalf during his lifetime, the deceased was convinced a respected citizen a family priest to write the will,  the advocate who drafted the will visited the deceased three times to discuss the will, and that it was normal for an elderly person to live with their eldest son.

 

Undue influence is common in confidential relationships, particularly those of a religious nature. In Parfitt vs. Lawless (1872) LR 2 P & D 462the testatrix left her residuary estate to a Roman Catholic priest who was her confessor and who lived with her and her husband.  It was alleged that the confidential relationship between them gave rise to a presumption of undue influence. It was held however that there was no positive evidence of undue influence. In Re Harden (1959 CYLB) 3448, The Times 30^th June 1959 a testatrix left property to a spiritualist medium after he allegedly transmitted messages ‘from the other side’ to her as to what she should do with her property on death.  The messages were dictated to her and resulted in her executing two wills that made the medium a substantial beneficiary of her estate. It was held that the medium had taken control of the testator’s mind to the extent that she had written what he wanted rather than the record of her mind. The will was invalidated on the ground of undue influence.

 

(f)  Fraud

Knowledge and approval will also be absent if the testator makes a gift by will or excludes a person from benefit as a result of false statements which have been made about an intended beneficiary’s character or conduct. In In the Estate of Posner (1953) P. 557 a gift made to a beneficiary who fraudulently misrepresented herself to be the testator’s wife was invalidated. In Pauline NdeteKinyotaMaingi vs. RaelKinyotaMaingiNairobi CACA No. 66 of 1984 (Nyarangi, Platt and Kwach JJA), the deceased appointed a woman he described as his wife the executrix  and trustee of his will. He had married the woman under statute while still married under customary law to the first wife. He also stated falsely that he was divorced from his first wife and purported to disinherit her completely. The Court of Appeal held that the purported statutory marriage was null and void by virtue of the Marriage Act and the African Christian Marriage and Divorce Act, because the deceased was already married under customary law, he could only lawfully contract another marriage according to customary law under whose procedure a marriage is potentially polygamous. It was further held that the appointment of the said woman as an executrix was both fraudulent and illegal in the circumstances, as the testator relied on deliberate falsehood. The  appointment of the executrix and trustee was therefore void for fraud and illegality rendering the executorship impossible.     

 

(g) Forgery

A will also be void if it is forged. In such case there is lack of knowledge and approval by the testator of the contents of the will. The forged will is not the will of the testator. The burden of proving forgery lies with the person alleging it. In Elizabeth Kamene Ndolo vs. George Matata Ndolo Nairobi CACA No. 128 of 1995 (Gicheru, Omolo and Tunoi JJA)), the Court of Appeal stated that the charge of forgery or fraud is a serious one, the standard of proof required of the alleger is higher than that required in ordinary civil cases, that is proof upon a balance of probabilities, but certainly not beyond a reasonable doubt as in criminal cases.  In that matter the Court of Appeal held that the eyewitness evidence of attesting witnesses was preferable to that of the handwriting experts, which is really is only opinion evidence.

 

In In the Matter of the Estate of James NgengiMuigaiNairobi HCSC No. 523 of 1996 (Koome J), the allegedly forged will was submitted to the Criminal Investigations Department at the request of the objectors following a criminal complaint. The document was subjected to to examination and  the alleged forged signature of the deceased was compared with the deceased’s known signatures. The expert document examiner concluded that the signature on the document was that of the deceased. The court held that the will was not a forgery.

 

5.5 Married Women

Section 5 (2) of the Law of Succession Act addresses the case of married women and adopts the position under the Married Women’s Property Act, 1882 by providing that any female, whether married or unmarried, is capable of making a valid will.

 

At common law, married women suffered a disability similar to that of infants and idiots, chiefly because upon marriage the husband automatically acquired rights over her property.  This position changed with the enactment of the Married Women’s Property Act, 1882, which enabled women to own property in their own right and thus conferring upon them the right to dispose of such property by will.

 

5.6 Form

Under Kenyan law, no specific form of a will is required.  Section 8 provides that a will may either be oral or in writing and may thus take any form provided it satisfies the laid down requirements of formal validity.  Section 9 provides the formal requirements for an oral will, while section 11 deals with written wills.

 

(a) Oral will

In the case of an oral will, according to section 9, it must be made in the presence of two or more competent witnesses and it cannot be valid unless the testator dies within three months after it is made (In the Matter of the Estate of NduvaMailu (deceased) Machakos HCP&A No. 110 of 1994 (Mwera J) and Wambui and another  vs.  Gikonyo and others (1988) KLR 445 (Gachuhi, Apaloo JJA and Masime Ag. JA) . The rationale behind the provision in section 9(b), the time stipulation, is that being oral there is a danger that some details may be forgotten or misreported where a longer period is allowed.  The other reason is that such wills are usually made in a state of panic, fear, or anxiety e.g. when the testator is very ill or in a state of imminent danger.  People in such state have a tendency to be irrational in their decisions and to express intentions that they might never had if they had a free thought.  The three-month period is intended to allow them time to reconsider the terms of the will and, if possible, reduce the same to writing.

 

A proviso to section 9(1) provides an exception to these requirements.  The exception covers persons in active service in the armed forces or merchant marine.  An oral will made by such persons is valid if the persons die in active service notwithstanding that the will was made more than three months before their death.  Such wills, which do not comply with the formal requirements, are called privileged wills.

 

Kenyan courts have held 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, provided the instructions are given in the presence of two or more persons. In Re Rufus NgetheMunyua (Deceased) Public Trustee vs. Wambui (1977)KLR 137  (Harris J) the deceased gave instructions on the disposal of his properties to his wives and children.  The persons receiving the instructions wrote the instructions on a piece of paper.  The deceased died a few days later.  It was held that the writing disposing the property was an oral will.

 

In Wambui and another  vs.  Gikonyo and others (1988) KLR 445 (Gachuhi, Apaloo JJA and Masime Ag. JA), the deceased who was illiterate called two people to his home and requested them to write down his wishes. The wishes were taken down in Kikuyu.  The person who took the instructions had the document typed the following day.  He read it back to the deceased who then thumb printed it; the witnesses did not countersign it.  The Court of Appeal, relying on Re Rufus NgetheMunyua (supra) and Sections 8 and 9 the Law of Succession Act on oral wills, held that the document was capable of being construed as an oral will.

Section 10 provides that where a conflict arises between the contents of a written will and an oral will the contents of the written will shall prevail.

(b) Written will

Section 11 provides that no written will shall be valid unless: it is signed by the testator or he affixes his mark to the will or it has been signed by some other person in the presence of and by the direction of the testator; it appears that the testator intended by his signature or mark or signature of the person signing for him to give effect to the will; the signature is made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time; and each witness must attest and sign the will in the presence of the testator but not necessarily in the presence of the other witnesses (Wambui and another  vs.  Gikonyo and others (1988) KLR 445 (Gachuhi, Apaloo JJA and Masime Ag. JA) . No form of attestation is necessary.

 

(i) Writing

Since the Law of Succession Act does not prescribe a particular form of the written will it is presumed that the will maybe handwritten, typed, printed or in lithographed form.  The writing may be that of the testator or of any other person. It may be in any language.  This is clearly implied by Rules 52 (2) and 54 (3) of Probate and Administration Rules.  Rule 52 (2) provides for the translation into English of a will written in a language other than English, while Rule 54 (3) addresses the case of a will written in a language with which the testator was not wholly familiar, an affidavit is required to show that the testator was aware of its contents and appeared to understand them.

 

Case law shows that it may even be in a code so long as the code can be deciphered.  In the case of Kell vs. Charmer (1856) 23Beav 195, a will written in a jeweller’s code was admitted to probate. It may be written on any material provided the material produces a visible form.  In Hodson vs. Barnes (1926) 43 TLR 71 a will written on an eggshell and in Murray (1963) CLY 3621 (Canadian) a will written on a cigarette packet were admitted to probate.

 

(ii) Signature

The term “signature” is not defined in the Act, but the courts have widely interpreted it to cover any mark of the testator which is intended as a signature e.g. thumb print, initials, assumed name, mark by a rubber stamp with the testator’s name have all been held to amount to valid signatures.  It need not even consist of a name at all.  In Re Cook’sEstatethe words “your loving mother” placed at the end of the document were held to be a valid signature. Part of a signature may in some cases be sufficient to validate a signature.  In ReChalcraft’s Goods 1948 P. 222.  A testatrix, on a point of death, started to sign her normal signature “E. Chalcraft” but after writing “E. Chal”, she became too weak to continue.  It was held that the signature ways valid.  It was the best she could in her weak condition.

 

Where the will is signed by another person this should be done in the testator’s presence and under his direction. The concept of “presence” has a physical and mental dimension.  Since the signature has to be made under the testator’s direction, the testator’s physical and mental condition must be such that he could either object to or assent to the signature made on his behalf. A will normally be signed on behalf of a testator in circumstances where he is too weak through illness to sign for himself. The person who signs on behalf of the testator may sign his or her own name or in the testator’s name (see case of In the Goods of Clark (1958) 1 Sw. & Tr. 22). The person may be one of the witnesses to the will (see case of Smith vs. Harris (1845) 1 Rob Ecc 262) It would be more prudent for the person signing on behalf of the testator to sign his own name and to state that he is signing on behalf of the testator, in the testator’s presence and under his direction. This would obviate any uncertainty as to whether the person is signing for the testator or as an attesting witness.

 

Section 11 (b) states that the signature or mark should be so placed as to make it appear that he intended by the signature or mark to give effect to the will.  Under this provision the signature can theoretically be placed anywhere on the document so long as it is apparent from the position that it is intended to give effect to the will (Karanja and another vs. Karanja(2002) 2 KLR 22 (Githinji J)).

 

The Administration of Justice Act, 1982 of England carries a similar provision at section 17 and recent U.K. decisions on the point could be a guideline. In Weatherall vs.Pearce(1994) The Times 7^thNovember a testator made a will on a printed form purchased from the stationers.  She signed her name in the middle of the attestation clause, but not at the end of the will.  The issue was whether this constituted a signature for the purpose of section 17 of the U.K Act.  It was held that since she had intended her name as signed to be her signature the will was property signed. In Wood vs. Smith (1991) 3 WLR 514 a testator wrote in his own handwriting at the top of his will and before writing the rest of the will “My will by Percy Winterborne”.  He did not sign his name at the foot of the document.  Evidence was adduced that the testator regarded his name at the top to be his signature.  It was held that by writing his name and the dispositive provisions in one single operation the deceased had provided clear evidence that the intended to give effect to the provisions.  The will was held to have been duly executed.

 

The point was addressed in the Kenyan case of Wambui and another  vs.  Gikonyo and others (1988) KLR 445 (Gachuhi, Apaloo JJA and Masime Ag. JA) where the court found that the fact that the deceased thumb printed last the witnesses having signed first did not invalidate the will as the testator does not necessarily have to sign the will it could be signed on his behalf and still be valid.

 

Sometimes a testator may place his signature on a separate piece of paper or on an envelope containing the otherwise unsigned will.  In such situations, whether the will is validly signed or not will depend on the intention of the testator.  If the intention is to ratify the will, it should be valid.  If the intention is to identify the will the same would be invalid.  The intention of the testator is a question of fact to be gauged from the evidence adduced.

 

In In the Estate of Bean (1944) P. 83 a testator forgot to sign his will but wrote his name and address on the envelope.  It was held that the will was not valid.  He had written his name on the envelope to identify rather than ratify the will.  Probate of the will was refused. In Re Mann’s Goods (1942) P. 146 a testatrix forgot to sign her will, but put it in an envelope and wrote on the envelope, “Last will and testament of J. C. Mann”, signed the envelope and had it witnessed.  The envelope was then placed in a larger envelope.  It was held that the testatrix intended the signature to give effect to the will, which was therefore admissible to probate.

 

(iii) Witnesses

Section 11 (c) of the Law of Succession Act provides that the testator’s signature must be made in the presence of two witnesses who need not be present at the same time. In In the Matter of the Estate of James NgengiMuigai (deceased) Nairobi HCSC No. 523 of 1996 Koome J stated that the law allows the will to be witnessed by two or more witnesses at different times , but each should sign in the presence of the testator.. The provision is unhelpfully drafted. It requires that the will be attested by two or more witnesses each of whom must have seen the testator sign or affix his mark to the will, and at the same time say that it shall not be necessary that more than one witness be present at the same time. It is not conceivable how the witnesses can each see the testator sign the will if both  are not present at the same time , unless the will is signed twice by the testator.  A will signed by one witness, as was the case in In the Matter of the Estate of Susan KaniniKilonzo (deceased) Nairobi HCSC No. 2669 of 2002), would be in contravention of section 11(c) and therefore null and void. To be present at signing means the witnesses must be capable of seeing the testator sign.  The witnessing is of the signature, that is the fact of signing.  The witnesses need not look at the signature or even know that the document is a will.

 

If the witness is present but unaware of what the testator is doing, the attestation will be invalid. In Brown vs. Skirrow (1902) P 3 a testatrix took her will to a grocer’s to be executed. She asked two shop assistants to act as witnesses. As she was signing the document, one of the assistants was busy serving a customer. The will was held invalid. In ReColling (1972) 1 WLR 1440 it was stated obiter that if a witness left the room before the testator completed his signature, the attestation will also be invalid.

 

Section 11(c) of the Law of Succession Act refers to the acknowledgement of a signature. Instead of being present when the testator is executing the document, the witnesses may be called after he has signed the document, in which event the testator should acknowledge his signature or mark or the signature of the person signing on his behalf and at his direction, to the witnesses. The  witnesses need not be present at the acknowledgement at the same time. Acknowledgement may be by words or by conduct. It is however preferable that the acknowledgement be express. Older English decisions show that the witnesses need not even see the signature being acknowledged. In Daintree vs. Butcher (1888) 13 PD 102 a testatrix simply said she had a document which she needed two witnesses to sign and the court found that the acknowledgment was sufficient.

 

The importance of the requirement regarding witnesses is that evidence can be obtained after the testator’s death as to actually what happened. It is advisable to select persons who are younger than the testator as these are more likely to survive him. It is also advisable to choose persons who can easily be traced in preference to a total stranger or someone of no fixed address or some one who is likely to be far away at the time of the testator’s death.

 

Section 11(c) is not specific on who may be a witness save that the witnesses be present at the time the testator signs or acknowledges his signature.  Section 11 (c) however requires that the witnesses must be capable of seeing the signature and understanding about what they are doing.  This provision therefore makes the blind and the illiterate unsafe witnesses. Minors, drunks and insane persons should not be chosen. A witness competent to attest  a will is defined in section 3(1) as a person of sound mind and full age.

 

By virtue of section 14 of the Law of Succession Act, the fact that a person has been named in the will as an executor does not disqualify him from signing the will as a witness.

 

(iv) Attestation

Section 11 (c) provides that each witness must sign the will in the presence of the testator.  They need not necessarily sign in the presence of each other. Attesting the will requires that the witnesses put their signatures in the will with the intention of validating the testator’s signature.Under section 11 (c) no particular form of attestation is necessary.  The witnesses’ signatures need not be in a particular place in the will, but it should be so placed or positioned as to show the intention to ratify the testator’s signature. In Re Beadle(1974) 1 All ER 493 witnesses signed the envelope containing a will but the will itself was unattested. It was held that the will was invalidly attested.

 

The term signature is widely interpreted to mean any mark intended by the witness to be their signature. In In the Goods of Sperling (1863) 3 Sw& Tr. 272 a witness attested by writing “servant to Mr.Sperling”.  It was held that the same was a signature as it was intended to identify the witness as the person attesting. The witness must sign the will for themselves rather than have a third party sign on their behalf.

 

Under Section 54 of the Indian Succession Act, 1865 a beneficiary under a will cannot attest the execution of a will.  If he so does he loses his bequest and the will is deemed to be improperly attested.  This is also the common law position. In In the Estate ofBravda (1968) 1 WLR 479 testator made a will leaving his estate to his two daughters.  He signed the will in the presence of the two daughters and two other witnesses.  He explained the reason of making the will as being that he wished to see his daughters provided for.  After the two witnesses had signed the will after the testator, the testator out of sheer enthusiasm asked the daughters to also sign, “to make it stronger”. They signed. It was held that since the daughters put their signatures under the words “witnessed by” they had signed as witnesses. It was held that the will was invalid.

 

The Law of Succession Act at section 13 takes a slightly different position.  Under section 13 a will should not be considered as insufficiently attested merely by the fact that it is attested by a beneficiary or spouse of such beneficiary provided that where that is done the signatures of such beneficiaries are further attested by at least two additional competent and independent witnesses.  Section 13(2) makes a bequest to an attesting witness void where the signature of such witness is not attested. In In the Matter of the Estate of George MbuguaNgare (deceased) Nairobi HCP&A No. 855 of 1995 (Rawal J) the court held that the will in dispute was properly attested as per section 13, although a beneficiary had signed it as an attesting witness, since his signature was further attested by two other attesting witnesses who were independent and competent.

 

(V) Presumption of due execution

According to Githinji J in Karanja and another vs. Karanja(2002) 2 KLR 22 where a will is regular on the face of it with an attesting clause and the signature of the testator there is a rebuttable presumption of due execution (omniaesseriteatta). The wills and codicils appeared ex facie to be properly executed, in such manner as to show that they were intended to give effect to the document as wills and codicils.In the instant case the court was satisfied that the presumption applied to the wills and codicils the subject of the suit, but the presumption was not rebutted by the objectors through concrete evidence. The court was convinced that the deceased made the wills and codicils and duly executed them in accordance with the provisions of section 11 of the Law of Succession Act; and there were no circumstances which disturbed the conscience of the court about the same.

 

5.7 The Doctrine of Incorporation by Reference

Section 12 of the Act provides for incorporation of papers by reference.  The section embodies the doctrine of incorporation by reference that allows documents that satisfy certain conditions to be regarded as part of a will even though the documents themselves are not executed.  Such documents if incorporated into a will are admissible to probate as part of the will. For the incorporation to be effective the document 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.

 

This criteria is discussed in a number of English cases, including but not limited to ReKeen (1937) Ch. 236, In The Goods Of Lady Truro (1866) LR 1 P & D 201, University of North Wales vs. Taylor (1908) P. 140, Re Batemans’Will Trusts (1970) 1 All ER 817, In the Goods of Smart (1902) P. 238, Allen vs. Maddock (1858) 11 Moo 427 and In the Goods of Heathcote (1881) 6 P D 30.

 

5.8 Validity of Wills outside the Scope of the Law of Succession Act

The Law of Succession Act also provides for the validity of wills made outside the scope of the Law of Succession Act. Section 15 deals with wills made before the commencement of the Act while section 16 deals with wills made outside of the jurisdiction.

 

Section 15 provides that written wills executed prior to the commencement of the Act, regardless of whether the testator died before or after the commencement of the Act are to be treated as properly executed if they were executed according to the requirements of the law then in force at the time of execution. Under section 16 the will of a foreigner or alien is treated as properly executed if its execution conformed, either at the time of execution or of the testator’s death, to the law in force of the state of execution or of the state where the property is situated or of the state where the testator was domiciled or of the state of which the testator was a national at the time of execution or death. 

 

5.9 Privileged Wills

A privileged will is one that is deemed valid notwithstanding the failure to comply with the strict legal formalities required of a will. Privileged wills are made in circumstances that by their very nature do not allow the opportunity of making a normal will. The Law of Succession Act provides for the making of oral or nuncupative privileged wills.  The statute makes no provision for written privileged wills. Written privileged wills are provided for in the Armed Forces Act (Cap 199 Laws of Kenya).

 

Section 9 of the Law of Succession Act provides that an oral will made by a member of armed forces and merchant marine during a period of active service shall be valid if the testator dies during the same period of active service notwithstanding the fact that he dies more than three (3) months after the date of the making of the will. The term “active service” is defined in section 3 of the Act to mean service with respect to the armed forces on a field of military operations or under orders to proceed to a field of operations; while in respect of the merchant marine it refers to being at sea or under orders to proceed to sea. The equivalent English statute, Wills Act, 1837, at section 11 uses the term “actual military service”. The term was given judicial interpretation in Re Wingham (1949) P. 187  where it was said to be referring to a situation of a soldier serving in the armed forces in connection with military operations which are or have been taking place or are believed to be imminent.  In this case, a pilot who died in a training exercise in Canada during the Second World War was held to be on actual military service.

 

The term ‘member of the armed forces’ is not defined in the Law of Succession Act (look up its definition in the Armed Forces Act (Cap. 199 Law of Kenya)). There is no reported Kenyan case yet on a soldier’s privileged oral will.  The English case of Re:  Stable (1919) P. 7 is relevant. The deceased, a lieutenant, said to a woman to whom he was engaged, “if I stop a bullet everything of mine will be yours”.  This was said in the presence of a person who was called as a witness. Probate of the deceased’s words was granted.

 

The Presidential Commission on the Law of Succession did not see the need for a written privileged will as the Law of Succession Act had already provided for an oral will as an alternative to a written will.  In Recommendation No 13 in its Report the Commission saw no reason why soldiers and sailors should be in a special category as they can avail themselves of the simpler methods open to other persons.

 

The soldiers are also catered for adequately in the Armed Forces Act (Cap 199 Laws of Kenya) at section 219 under which a soldier can make a written will if it is attested by one witness only, an officer of the regiment.

 

CHAPTER SIX

6.  REVOCATION, ALTERATION, AND REVIVAL OF WILLS

6.1 Introduction

Wills once made are liable to change by their maker either through alteration, revocation or revival in cases where there has been revocation.

 

6.2 Revocation

All wills are revocable.  This is an expression of the freedom of attestation.  The freedom to make a will extends to cover the freedom to revoke it. A will can be revoked voluntarily or involuntarily.  There are three (3) methods of voluntary revocation, namely: express revocation, implied revocation and revocation by destruction. These three methods require mental capacity to the same degree as for the creator of a will and the intention to revoke. Under Kenyan law, there is only one involuntary method of revocation, namely-revocation by marriage. This arises by operation of the law and it therefore does not require that the testator had mental capacity or intention to revoke.

 

Section 17 of the Law of Succession Act provides that its maker may revoke a will at any time when he is competent to dispose of his free property by will.

 

6.3 Express Revocation

Section 18 (1) provides for the revocation of a will or codicil by another will or codicil declaring an intention to revoke it. Read together with Section 17 this provision enables testators to revoke their wills so long as they have the capacity to do so.

 

Professionally drawn wills invariably contain an express revocation clause taking this form: “I revoke all former wills and testamentary dispositions heretofore made by me”. It is not be sufficient to say, “This is the last will and testament made by me”.  This would not be an express revocation clause. It was held in Re Hawksley’s Settlement (1934) Ch. 384 that the description of the will as the testator’s ‘last will’ was not sufficient for an express revocation clause. Revocation may be of whole or part of the will or codicil.  A codicil is often used when only parts of the will are to be revoked. Express revocation requires an intention to revoke on the part of the testator.

 

6.4 Implied Revocation

The wording of section 18 (2) is wide enough to cover the possibility of implied revocation.  A will or codicil is impliedly revoked by a later will or codicil to the extent that the latter is inconsistent with the earlier will or codicil. It is a matter of construction of the will or codicil to decide whether and to what extent a later will impliedly revokes an earlier will. Extrinsic evidence is admissible for establishing implied revocation.

 

6.5 Revocation by Destruction

Section 18(1) provides for revocation by  the burning, tearing or otherwise destroying of the will with the intention of revoking it by the testator or by some one else at his direction. Revocation by destruction involves two distinct elements: the actual destruction of the will and an intention to revoke the will. Both elements must be present.  The actual destruction must be by burning, tearing or otherwise destroying the will.  ‘Otherwise destroying’ has been construed using the ejusdem generis rule to require that the acts of destruction are of the same kind as burning and tearing.

 

In Cheese vs. Lovejoy (1877) 2 PD 251 A testator cancelled his will by striking out its clauses and his signature with a pen and then writing at the back of the will  ‘All these are revoked’.  He threw the will in a pile of waste paper in the corner of the room where his house cleaner retrieved it and kept it in a kitchen drawer until the testator’s death eight years later.  It was held that what he did not amount to “otherwise destroying”. Although he intended to revoke the will, it had not been destroyed and it was admitted to probate. In Re: Morton’s Goods (1887) 12 PD 14 the testator’s signature was completely scratched out.  It held that the same amounted to otherwise destroying. In Re Adams (1990) 134 Sol. Jol. 518 parts of a will were heavily scored through with a ballpoint pen.  The relevant parts were held to have been actually destroyed. In Hobbs vs. Knight (1836) 1 Curt 768 it was held that “tearing” include cutting.

 

Whether the actual destruction of part of a will results in the revocation of a whole or part of the will depends on the part actually destroyed.  If the destroyed part impinges on the whole will the whole will be revoked, for example the destruction of the part of the will containing the signature.  If the parts are less important, only those parts will be revoked. In Re  Everest (1975) Fam 44 the testator cut off the part of his will that contained the trusts of the residue.  It was held that the parts cut off were revoked but that the rest of the will remained intact.

 

To establish actual destruction it must be proved that the acts of destruction were completed by the testator. In Doe D. Perkes vs. Perkes (1820) 3 B &Ald 489 the testator tore his will into four (4) pieces in a rage with one of the beneficiaries named in the will.  He thereafter became calmer and put the pieces together.  It was held that there was no actual destruction as the testator had not completed all that he had intended to do by way of destruction. The acts of destruction must be by the testator or by some other person in the testator’s presence and under his direction. In Re: Dadd’s Goods (1857) Dea& Sw. 290 a testator on her deathbed expressed a wish to revoke a codicil.  Her executor and a neighbour went out of her presence into the kitchen and burnt the codicil. It was held that there was no actual destruction.

 

If destruction is done by some other person, it must be done in the presence of the testator and by his direction. In Gill vs. Gill (1909) P. 157 the testator’s wife tore up his will in a fit of temper and it was held that there was no actual destruction as the will was not destroyed by the testator’s direction. A destruction of a will by someone else must be done in the presence of the testator. Where instructions are given to an advocate by a client asking the advocate to destroy the client’s will in his possession and then the advocate destroys the same in the absence of the client  the act of destruction in such  a case does not amount to the actual destruction of the will and there would be no revocation of the subject will.

 

If, however, the letter or document containing the instructions to destroy is signed by the testator and attested by two witnesses the destruction would effectively revoke the will. In Re: Durance (1872) LR 2 P & D 406 a testator wrote to his brother who had custody of his will asking him to destroy the will that the brother did.  The letter was signed and witnessed by two persons.  It was held that there was actual destruction and that the will had been revoked.

 

With respect to intention to revoke, the testator must have the same capacity to revoke as is necessary to execute a valid will. In Re Aynsley (1973) 1 Ch. 172 a testatrix who was old and confused tore her will into forty pieces. The judge put the pieces together in a one-hour operation. It was held that the testatrix lacked mental capacity to revoke and the will was therefore still valid. 

The destruction must not be accidental. If a will were destroyed by a fire at home, the same would not amount to revocation by destruction, as there would be no intention on the part of the testator to revoke the will by destruction.  If a testator is under some mistaken belief, for example that the will is invalid, a destruction of the will in the circumstances would not lead to revocation, as there would be no intention to revoke.

 

6.6 Presumption concerning Revocation by Destruction

In some cases, a will may be lost or found torn or mutilated after the testator’s death.  In such cases, the will is presumed to have been destroyed by the testator with the intention of revoking it where the will was last known to be in his possession. The presumption can be rebutted by evidence to the contrary.

In Re Jonesthe appellants challenged a will made by the testatrix who was their aunt in which she had left a bequest to the respondents who were her favourite nieces. At the time the will was made, the respondents used to visit and help the testatrix. In appreciation, the aunt left her house and land to them under the will. On learning of the contents of the will, the respondents stopped visiting her and giving her any support. The testatrix, apparently in retaliation, decided to revoke her will to disinherit them of the bequest. She informed her lawyer and someone else about the intention, but she died before her instructions could be carried out. After her death, a copy of the will was found in her house mutilated at the part in which she had bequeathed the house and land to the respondents. She had also cut out her signature from the will. It was held that the actions of the testatrix indicated an absolute intention to revoke the will and the same was effectively carried out as characterised by the act of destruction. The effect was that the deceased died intestate.

 

6.7 Doctrine of Conditional Revocation

Once an intention to revoke is established, it is necessary to decide whether the intention is absolute or conditional.  It is a question of fact in the case of actual destruction but a matter of construction in the case of express revocation. Doctrine is also known as dependent relative revocation.  If the intention is absolute, the revocation does not have effect until the condition is fulfilled. This effectively means that where a testator revokes his will with the intention of making a new one and for some reason fails to make a new one, the original remains valid.  The doctrine only applies where the court is satisfied that the testator did not intend to revoke the will absolutely, but merely revoked it as a first step towards making a new will. If the intention is absolute, the revocation takes effect immediately. If it is conditional, the revocation does not effect until the condition is fulfilled.

 

In Dixon vs. TreasurySolicitor (1905) P 42 (CA)a testator instructed a solicitor to draw up a will for him. Before this had been done he cut off the signature from his old will as he mistakenly believed that the new will could not be made until the old will was revoked.  The action of cutting off the signature amounted to revocation by destruction.  The testator died before he could sign the new will.  It was held that because of his mistaken belief the revocation of the old will was conditional on the new will being effective.  The old will was admitted to probate. In Re Carey (1925) L.S.Gaz R. 189 a testator revoked his will by destruction because he thought he no longer had property that could pass by his will.  He had forgotten that he might inherit some property from his sister’s estate, which he in fact did. It was held that the revocation was conditional on the testator having nothing to leave.  As he in fact had property to leave, the condition was not fulfilled and the will remained valid. In Re Southerden’s Estate (1925) P. 177 a testator revoked his will by destruction under the mistaken belief that under the rules of intestacy his widow would acquire the whole of his estate. The will was made just before the couple embarked on a voyage to America.   When they safely made it back to England they regarded the will as unnecessary and destroyed it.  It was known in fact that the deceased had always intended his wife to be the sole beneficiary of his estate. It was held that the revocation was conditional on the widow taking the whole estate upon intestacy, as she was not entitled to the whole estate the condition had not been fulfilled and the will remained valid.

 

6.8 Revocation by Marriage

Generally, the marriage of the testator automatically revokes any will or codicil made prior to the marriage. Section 19 of the Law of Succession Act provides that the marriage of the testator will automatically revoke a will subject to one exception, where the will is expressed to be made in contemplation of marriage with a specified person. 

 

The reason for this rule is that marriage and the birth of issue to the testator constitutes an important change of the circumstances of the testator and it is equitable in the event for the person’s estate to devolve on an intestacy rather than under a will made before marriage and the birth of the children.Although, in the absence of the rule, the person married subsequent to the execution of the will and any children born thereafter may avail themselves of the protection afforded by section 26 of the Law of Succession Act, this approach would invite unnecessary litigation. The common sense approach is that where a person fails to alter their will as a result of marriage, the interests of the heirs would be served by the devolution of the property in intestacy.

 

6.9 Revocation by Divorce

Kenyan law does not recognize revocation by divorce, indeed the definition of dependant in section 29 includes former wife or wives of the deceased. In Re Bird Deceased (1970) EA 289, Platt J stated that divorce does not ipso facto revoke a will. The court found that the divorced woman was the person named in the will as the person entitled to the property of the testator.

 

6.10 Revocation of Written Will by Oral Will

Under section 18(2) a written will cannot be revoked by an oral will.

 

6.11 Alteration of Wills and Codicils

Where the words of a will are obliterated or altered in some way or interlineations are made, the effect of these changes depends on whether the alterations were made before the execution of the will or after.

 

An alteration made before the execution of the will is valid so long as it is final rather than deliberate. According to the court in Re Bellamy’s Goods, if it is in pencil it is presumed to be merely deliberative, and without evidence to the contrary it would not therefore be valid. It was stated in Cooper vs. Bockett, that with respect to alterations made before the execution of the will there is a presumption that they have been made after execution unless the alteration is to fill in a blank space in the will (Either extrinsic evidence or evidence from the will itself is admissible to rebut the presumption. Alterations made after executions of the will are invalid unless they have been executed. In view of the presumption, it is advisable in practice to execute an alteration even if it has been made before the execution of the will. In Kell vs. Charmer (1856) 23 Beav. 195, it was held that where the alteration is made to fill a blank space in the will, the presumption is that the alteration was made before execution of the will. 

Where a codicil to a will is subsequently executed, even though a codicil has the effect of republishing the will this will not itself validate an alteration by making it as though done before the execution of the will. An alteration will only be made valid by a codicil if the codicil refers in some way to the alteration.

 

Under section 20(1) of the Law of Succession Act, if the alterations are made after the execution of the will they would be invalid unless they have been duly executed in accordance with the formalities required for the execution of the will. The formalities are complied with if the testator and the witnesses place their initials in the margin next to the alteration or if the signature of the witnesses and the testator is put at the end of a memorandum which is contained in the will, and which refers to the alteration.

 

In Re Horsford’s Goods (1874) LR 3 P&D 221 and Re Itter(1950) P 130 it was said that where an unattested alteration has been made after the execution of the will the precise effect depends on whether the original wording is apparent or not apparent. The original wording will be apparent for this purpose if the original words can be deciphered by an expert by natural means. This means that the original words can be ascertained from the face of the will without physically interfering with the will. According to the decision in the case of Re Hamer’s Estate (1943) 113 LJP 31), where an unattested alteration has been made and the words are apparent, the will is admitted to probate with the original wording ignoring the alteration. Where an unattested alteration has been made and the original words are not apparent the general rule is that probate of the will is granted with a blank space.

 

6.12 Revival of Wills

Under section 21 of the Law of Succession Act, a testator may revive a will, codicil or any one of them that has been revoked, provided that it has not been destroyed. Revival usually involves the re-execution of the will with proper formalities or a duly executed codicil. There should be in either case an intention to revive the revoked document. A codicil is used to revive part of a revoked will, while a will which has been totally revoked can be revived only by re-execution. It was stated in Re Hardyman(1925) Ch 287, that the effect of a revival of a will or codicil is to make the same 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 revival. According to the court in  ReRevees(1928) Ch  351, the fact that the revival of the will speaks from the date of revival also affects references to property. 

CHAPTER SEVEN

 GIFTS BY WILL AND THEIR FAILURE

 

7.1 Introduction

A will disposes of property in the form gifts to the beneficiaries. There are various forms or classes of gifts, and doctrines governing them.

 

7.2 Types of Gifts

A gift by will may be of immovable (realty) or movable property. In the past a gift of immovable property was called a devise, while that of movable property was termed a legacy. The modern approach is to use the term legacy to refer to both classes of gifts.

 

There are four main types of gifts, namely: specific gifts, general gifts, demonstrative gifts, pecuniary gifts, and residuary gifts.

 

(a) Specific gifts

A specific gift is a gift of property forming part of the testator’s estate that is distinguished in the will from other property of the same kind. In Bothamley vs. Sherson(1875) LR 20 Eq, a specific gift was described as being a severed or distinguished part of the estate. Eg a gift of a Lamu bed. In Re Rose (1949) Ch 499, it was said that the court leans against specific legacies and is inclined to construe a legacy as general. The explanation for this is that specific gifts tend to fail for ademption.

 

(b) General gifts

A general gift is a gift that is not in any way distinguished from property of the same kind. It covers a gift of the entire testator’s property or the entire testator’s property of a particular type. As a general gift is one which is to be provided out of the testator’s estate, it does not matter that the property of that description does not form part of the deceased’s at the time of his death (Bothamley vs. Sherson(supra) Jessel MR). General gifts tend to be pecuniary legacies, although they do not have to be.

 

(c) Demonstrative gifts

A demonstrative gift is a gift that is expressed as payable out of a particular fund or property. As a demonstrative gift is general in nature, rather than specific, the gift does not fail for ademption even if the particular fund or property does not form part of the testator’s estate at the time of the testator’s death. The money to settle the gift has to be raised by the executors or the property acquired.

 

If the gift is directed to be satisfied only out of a particular fund, it will not be a demonstrative gift at all, but instead a specific gift. The demonstrative gift should operate as a general gift in that it cannot be satisfied out of the specified fund or property.

 

(d) Pecuniary legacies

This is a gift of money, whether general or demonstrative. Usually a pecuniary legacy is a general gift, but it could be specific or demonstrative, where money is instructed to be paid out of a particular fund.

 

(e) Residuary gifts

A residuary gift is a gift of a testator’s residuary estate. The residuary estate is all that is left in the testator’s estate after all valid specific gifts have been paid. The residuary gift is usually made subject to the payment of pecuniary legacies, all debts and other liabilities of the deceased, and payment of funeral and administration expenses. 

 

7.3 The Doctrine of Ademption

The doctrine of ademption is provided for in section 23 of the Law of Succession Act, and it operates in the circumstances, manner and extent provided by the 2^nd Schedule to the Act.

 

Under paragraph 8(1) of the 2^nd Schedule, where a specific gift is made, the gift will fail for ademption if the subject matter of the gift does not form part of the testator’s estate at the date of his death. Ademption is likely to occur because the property has been sold, given away or destroyed during the testator’s lifetime. According to the court in Durrant vs. Friend (1852) 5 De G &Sm 343, where it is unclear which happens first, the death of the testator or the destruction of the property, the property is deemed to have perished before the testator so that the gift is adeemed. Under paragraph 8(2) there must be a substantial change in the subject matter to cause ademption, mere nominal change is not sufficient.

 

Sometimes, where property has changed in nature it is difficult to decide whether ademption has occurred. In Re Slater (1907) 1Ch 665 CA, Cozens-Hardy MR said that ademption would not occur if the asset in question had changed in nature or form only, but remained substantially the same thing. Change in the nature of the asset has been a particular problem in relation to company shares. It was held in Re Slate, Re Leeming(1912) 1 Ch 828, that 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 the case of change of substance, ademption will occur. 

 

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. According to Re Calow(1928) Ch 710, this will not be the case where the testator has made a contract to sell the subject matter of the gift before the will was executed. In this case, the beneficiary will be entitled to the proceeds of sale. Under the rule in Lawes vs.Bennett (1785) 1 Cox 167, where a testator during his lifetime grants to a third party an option to purchase property which is the subject matter of a specific gift, the gift will adeem whether or not the option is exercised. It was stated in Drant vs. Vause(1842) 1 Y & CC 580, that if the option was granted to the third party before the will was executed, the gift will adeem and the beneficiary will be entitled to the proceeds of the sale if the option is exercised. 

 

Although the authorities are not entirely clear on the point, it seems that a gift will fail for ademption if between the execution of the will and the date of its republication the testator acquires another asset of the same description. It is always possible for the testator to express a contrary intention to the operation of the doctrine of ademption. 

 

7.4 Doctrine of Lapse

The doctrine of lapse is provided under section 23 of the Law of Succession Act, and its application is as set out in the 2^nd Schedule to the Act. As a general rule, stated in paragraph 1(1) of the 2^nd Schedule, if a beneficiary under a will predeceases the testator their gift will lapse. Under paragraph 7 of the 2^nd Schedule, if the gift is not a residuary gift, the property will fall into residue. If the gift is a residuary gift, the property will pass according to the rules of intestacy unless there is substitutional gift of the residue. A gift will not lapse if it can be shown that the beneficiary survived the testator for even a very short period. Where the circumstances of death make it uncertain whether the beneficiary survived the testator, the beneficiary may be deemed to have either survived or predeceased the testator under the doctrine of commorientes.   

 

Under paragraph 1(2) of the 2^nd Schedule, the doctrine of lapse cannot be excluded by stating in the will that a gift is not made subject to it. According to Re Ladd (1932) 2 Ch 219 it is possible to make an express gift to the estate of a deceased beneficiary.

 

It was stated in Morley vs. Bird (1798) 3 Ves 696, that if a gift is made to beneficiaries as joint tenants, the gift will not lapse unless all the joint tenants predeceased the testator, as the surviving joint tenant(s) take(s) the share of a deceased joint tenant by survivorship. According to the court in Page vs. Page (1728) 2 P Wms 489, the converse is that if a gift is made to beneficiaries as tenants in common, the share of a beneficiary who predeceases will lapse. This is because tenants in common have a distinct share in the property and the rule of survivorship does not apply. For a tenancy in common there must be words to the effect that the each beneficiary is to have a distinct share or that the property is to be shared equally or divided between them. 

 

Where a class gift is made, the gift will not lapse unless all the members of the class predecease the testator. A class gift is one where the beneficiaries fit a certain description, and the amount that each beneficiary receives depends on the number of people in the class.

 

There are a number of exceptions to the doctrine of lapse. The exceptions are set out in the 2^nd Schedule to the Law of Succession Act.  One exception to the doctrine of lapse is gifts made in the discharge of a moral obligation (paragraph 2(1) (a) of the Second Schedule). The extent of the exception is not fully clear, but it was explained in Stevens vs. King (1904) 2 Ch 30 that the doctrine of lapse does not apply to a gift made to discharge a moral obligation, as the court will imply that the gift is intended by the testator to pass into the beneficiary to whom the testator owes a moral obligation. Possibly, the exception only extends to debts owed by the testator to a beneficiary.

 

Paragraph 2(1) (b) of the 2^nd Schedule makes an exception for gifts to children or other issue of the testator. It provides that gifts to such persons will not lapse so long as the will contains a gift to a child or children or other issue of the deceased, and the intended beneficiary dies before the testator leaving issue and the issue of that member is living at the death of the child. Under the circumstances, the gift takes effect as a gift to the issue living or en ventresa mere at the time of the testator’s death or as if the class includes the issue of the deceased member who are living at the date of the testator’s death. The issue takes the share of their deceased parent would have taken, if issue are more than one then they should take in equal shares. 

Paragraph 2(2) of the 2^nd  Schedule deals with class gifts, and provides that the gift would not lapse so long as there is a surviving member or surviving members of the class, who should take as a whole.

 

7.5 Commorientes

If the death of a beneficiary under a will and that of the testator occur close together, it will be necessary for the executors to try to establish who died first. It may be that the testator and beneficiary have died in a common accident. If evidence exists that the beneficiary predeceased the testator, however close the deaths, the doctrine of lapse applies and the gift to the beneficiary will fail. Under section 43 of the Law of Succession Act, where there is no evidence as to the order of deaths, as where persons die in a common accident, for the purpose of succession the deaths are presumed to have occurred in order of seniority. The elder person is presumed to have died first. This provision, however, does not apply to spouses, who are presumed to have died simultaneously.

 

7.6 Mistake, Fraud and Undue Influence

The validity of a will is predicated on, among other factors, the testator’s knowledge and approval of its contents, and the testator is said to not to know or approve the contents because of a mistake, fraud and undue influence. The presence of a mistake, fraud and undue influence may lead to the lapse of one or more gifts made in the will.

 

7.7 Uncertainty

It was said in Palmer vs. Simmonds (1854) 2 Drew 221 and Re Golay(1965) 1 WLR 969, that a gift will fail for uncertainty unless the subject matter of the gift and the beneficiaries can be identified with sufficient certainty. A gift may fail for uncertainty where the beneficiary is described in terms that are uncertain. For example, a gift to friends may fail for uncertainty. In In the Matter of George Percy Smithson, Deceased (1942) 22 EACA 14 (Lucie-Smith J) a gift of the residue of the estate to ‘African Leper Missionaries and Leper Hospitals at present and to be established in Africa only’ was found to be a good charitable bequest which was void for uncertainty and impossibility of performance.

 

The appropriate test of certainty of objects for a class gift, according to the court in McPhail vs. Doulton(1971) AC 424 and Chichester Diocesan Board of Finance vs. Simpson (1944) AC 341,  is one of whether it can be said of any given individual, that they either are or are not a member of the class.  

 

7.8 Beneficiary or Spouse of Beneficiary Witnessing the Will

The validity of a will is not affected where a beneficiary or a spouse of a beneficiary acts as an attesting witness, but section 13 of the Law of Succession Act provides that a gift will fail if the beneficiary or their spouse has witnessed the will. Unless section 13(2) of the Law of Succession Act is complied with by having their signatures further attested by independent witnesses. This provision is not limited to dependent beneficiaries, it includes any person who is entitled to costs or charges out of the estate or incurred in the course of preparing the will. A professional executor who is appointed under the will witnesses the will; he will lose his entitlement to his fees or charges.

 

7.9 Forfeiture

Under section 96 of the Law of Succession Act, a beneficiary who is convicted of the murder of the testator is prevented on the basis of public policy from benefiting under the testator’s will. 

 

7.10 Perpetuity

The rules relating to perpetuity affect gifts by will in several ways, and apply by virtue of section 25 of the Law of Succession Act and the Perpetuities and Accumulations Act (Cap  Laws of Kenya). Section 25 of the Law of Succession Act provides that testamentary gifts or dispositions are void if they offend the rules against perpetuities, remoteness or accumulations set out in the 4^th Schedule to the Act.

 

In the first place, they apply to contingent gifts and require that it must be possible within a certain period of time, usually called the perpetuity period, to say who is entitled to the gift. If the gift does not vest within the perpetuity period, it is void. The rationale for the rules against perpetuity is to ensure that property, which makes up the country’s wealth, is not used for the benefit of anyone for very long periods

 

Secondly, property once vested in trustees must not be rendered inalienable. If a charitable gift is inalienable, it is void.  A gift is said to be inalienable if some provision or the terms of the gift prevent the property from being disposed of within a certain period of time. This aspect of the rule of perpetuity is particularly relevant where property is left by will for a purpose or cause which is not charitable. The reason behind the principle is that it is against public interest for property to be tied up indefinitely for a purpose that is not of general benefit to the community. Charitable gifts are excluded from the rule because they are by definition of public benefit. Without the rule, land or funds could be tied up for very unproductive purposes.

 

7.11 Private Purpose Trusts

A purpose trust arises where a testator wishes to benefit a cause or a purpose as opposed to benefiting a person or persons. In Brown vs. Burdett a testator left a fund of money to keep a house maintained with all but four of its rooms blocked up. Generally, unless the purpose is charitable, the gift will be void because of the beneficiary principle and the perpetuity rule. The beneficiary principle was explained in Morice vs. Bishop of Durham (1804) 9 Ves. where it was stated that the objection to a gift for a private purpose is that there is no one capable of enforcing the payment of the gift.

 

There are, however, exceptions to the rule that private purpose trusts are void. An important exception is trusts known as trusts of imperfect obligation. These have been described, by Roxburgh J in Re Endacott (1960) Ch 232, as concessions to human weakness or sentiment. If a gift falls within one of the categories of trusts of imperfect obligation, it will be valid, but the executors will not be bound to give effect to the gift- though they may if they wish, provided that the gift is limited to the perpetuity period. Trusts of imperfect obligation fall into three categories, namely; trusts for maintenance of a particular or grave, saying of masses for the dead and maintenance of one of more specific animals.

 

CHAPTER EIGHT

CONSTRUCTION OF WILLS

8.1 Introduction

It sometimes becomes necessary for the court not only to determine whether or not the document alleged to be a will is a valid will, but also what the meaning and effect of the words and phrases used by the testator in the will are. First, it must emerge from the words, phrases and expressions used that the document was made in contemplation of death i.e. that it is testamentary. The role of the court is therefore, to decide what meaning should be attributed to any disputed clauses in a will.

 

Issues relating to construction of wills arise out of poor drafting. The main objective of the construction of a will is to ascertain the testator’s intentions as expressed in the will. In Perrin vs. Morgan (1943) AC 399 Lord Simon LC said that ‘the question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case- what are the “expressed intentions” of the testator’. (National Society for the Prevention of Cruelty to Children vs. Scottish National Society for the Prevention of Cruelty to Children (1915) AC 207).

 

Where a will uses words and phrases which are capable of two or more meanings and does not show in which sense the testator intended to use them, the court is faced with two alternatives either to declare the will void for uncertainty or decide on which of the available interpretations is to be given to the disputed clause.  The latter course is known as the benevolent approach to the construction of wills.  This approach has given rise to the so-called rules of construction of wills.

 

Under section 22 of the Law of Succession Act wills are construed according to the rules made under the 1st Schedule to the Act. There are 78 rules of construction under the 1st Schedule. These rules are based on some basic general principles of construction of wills.

 

8.2 The Court construes Wills, it does not Remake Them.

The duty of the court is to interpret the words as used by the testator in the will regardless of whether they produce an unfair result, provided that was the intention of the testator.  Even where a testator has not made a provision for his lawful dependants it is not for the court in interpreting the will to seek to make provision for these survivors. The court interprets the will as it stands and pronounces that the survivors are not provided for.  Thereafter the survivors may, if they so wish, file the necessary application under section 26 asking the court to make a reasonable provision for them out of the estate.  Thus the court’s business is to construe the testator’s will, not to make a new will for him.

 

Note, however, that a mechanical application of this principle can sometimes produce absurd results and obvious injustice.  In Scale vs.Rawlings (1892) A.C. 342 a testator devised three of his houses to A (his niece) for life and provided that should A die leaving no children, those houses were to go to his nephews.  “A” died leaving some children surviving her. It was argued on behalf of A’s children that the testator intended, although his will did not expressly say so that the testator intended, although his will did not expressly say so, that if A died leaving children, the houses should go to them. Interestingly, both the Court of Appeal and House of Lords decided that the will clearly gave A no more than a life interest in the houses and gave nothing to her children. Consequently, when A died leaving children, the houses devolved upon the testator’s residuary devisees i.e. the nephews.  Both courts held that if the testator had desired A’s children to benefit he would have said so.

 

Despite the obvious injustice that can result from such mechanical application of the principle the rationale behind it is to guard against the tendency to impute a meaning to a will that was never intended by the testator and thereby defeat his intentions.  It also acts as a caveat against sloppy drafters, who must be warned against using words and phrases carelessly without considering whether they express the testator’s true intentions.

             

8.3 Words are Construed in their Ordinary Natural Sense

Words in a will are attributed their primary meaning, regardless of whether the construction will produce a capricious meaning (see Rule 9) (Rashida Begum vs. Administrator General and another (1951) 18 EACA 102 (Sir Barclay Nihill P, Sir Newnham Worley VP and Pearson Ag. CJ)). In Gorringe vs. Mahlstedt(1907) AC 225, it was said that there is a presumption in construing a will that the ‘ordinary and usual meaning of the words’ should be applied. In Re Raphael Public Trustee vs. Raphael (1972) EA 522 (Simpson J) the court was asked to construe two wills containing the phrase ‘or of us dying together’. Both testators were found dead in a locked room with bullet wounds, the pathologist was unable to determine who died first. It was held that the testators did not mean dying at precisely the same instant. The court concluded that the testators died together within the meaning of the phrase in their will.

 

In Anarali Museraza (a minor by his next friend) Mohamedtaki A. P. Champsi vs. MohamedaliNazerali Jiwa and others (1966) EA 117 (Wicks J) the court was called upon to construe the clause ‘in addition to this will’ in a codicil to an earlier will. It was contended that the testator was attempting to make further dispositions ‘in addition’ to the one-third willable property under Islamic law and as this exceeds that one-third the codicil was therefore void. The court held that looking at the codicil as a whole by the words ‘in addition to this will’ the testator intended that the codicil was to be read with the earlier will and by the words ‘the following addition to it‘ the testator intended to add to the provisions of the prior will.

 

However, if on reading the will as a whole or on investigating the habits and circumstances of the testator, it is evident that he used a particular word or phrase in some special sense of his own, the court may interpret it in this special or secondary sense provided that the word or phrase is capable of carrying such a meaning. There are two ways in which the general principle may be departed from, through the application of the ‘dictionary principle’ and the use of a secondary meaning where the ordinary meaning does not make sense.

 

The dictionary principle applies in circumstances where the testator has set up his own dictionary in the will by defining words he uses in a particular way. The principle would apply if the testator has a definition clause saying how particular words are used in the will. 

 

Where the ordinary meaning does not make sense, a secondary meaning which makes sense can be applied. In Re Smalley (1929) 2Ch. 112 which illustrates the power of the court to interpret a word in a secondary sense when the surrounding circumstances of the testator show that he used it with that particular meaning.  In this case a testator bequeathed all his property to ‘my wife E. A. S’.  The woman named believed herself to be his wife and was generally reputed as such but in fact, he had commuted bigamy in marrying her, for he was already married to another woman. On evidence of these surrounding circumstances, the Court of Appeal construed the word “wife” to mean “reputed” as opposed to “lawful” wife, for the circumstances showed that he had used the words in this secondary sense. In Thorn vs. Dickens (1906) WN 54, evidence of surrounding circumstances showed that the testator referred to his wife as “mother” so that a bequest to ‘mother’ in his will was taken to be a bequest to her.

 

Where a word has more than one meaning the general rule, that words are given their ordinary meaning, cannot be applied. (Re Everett (1944) 176, Re Barnes’ Will Trust (1972) 1 WLR 587, ,Re Mellor (1929) 1 Ch 446).Where special or technical words are used in a will, they are presumed to be employed in their technical sense, unless the context clearly indicates the contrary (see rule 8) (Re Cook (1948) Ch. 212).   Such technical words may also be construed in a secondary sense if the will provides sufficient evidence that this is the sense in which the testator used them.

 

8.4 The Will must be Read as a Whole  

The meaning of clauses is to be collected from the entire will (Rashida Begum vs. Administrator General and another (1951) 18 EACA 102 (Sir Barclay Nihill P, Sir Newnham Worley VP and Pearson Ag. CJ)).  Since the paramount purpose of construction is to give effect to the testator’s intention as expressed in the will, the meaning of any clause in a will is to be ascertained from the entire document and not in isolation (Abdulla RehemtullaWalje vs. Alibhai Haji and another (1943) 10 EACA 6 (Sir Norman Whitley CJ, Mark-Wilson Ag. CJ and Hayden J).  The provisions of the will must be construed in relation to each other.  

 

However, where two clauses or provisions are irreconcilable or mutually inconsistent to the extent that they cannot possibly stand together the last one prevails (see rule 2) (Re Hammond (1938) 3 All ER 308). The rationale for this rule lies in the notion that the later clause in the last expression of the testator. The rule has been described by Lord Greene MR in Re Potter’s Will Trust (1944) Ch 70 as a ‘rule of despair’. Case law shows that the courts try not to apply the rule at all (Re Alexander’s Will Trusts (1948) 2 All ER 111).

 

Apparently a rule has developed to the effect that where, looking at the will as a whole, it looks like that the testator intended the first clause to apply, the presumption that the latter clause prevails should not be applied (Re Bywater(1881) 18 Ch 17). 

 

8.5 The Will must Speak for Itself.  

As general rule, courts must ascertain the testator’s intention from the words of the will itself (Colclough vs. Cocker (1917) 7 EALR 120 (Hamilton CJ, Murison CJ and Pickering J),RustomjiKersasjiKhursedjiSidhwa vs. DinshwaRuttonji Mehta and others (1934) 1 EACA 38 (Abrahams CJ, Lucie-Smith Ag. CJ and Horne J)). This is because the construction of wills is about ascertaining the testator’s intention, as expressed in the will. In Perrin vs. Morgan (1943) AC 399, Lord Atkin remarked that ‘the sole object is…to ascertain from the will the testator’s intentions’. In 

Re Raphael, Public Trustee vs. Raphael (1972) EA 522 (Simpson J), the court was asked to construe the phrase ‘or of us dying together’ contained in the wills of two testators who were found together in a locked room and who had died from bullet wounds. The court found that the deceased died together within the meaning of that phrase in their wills. In the opinion of the court, the phrase ‘dying together’ did not mean dying precisely at the same instant of time, what the deceased had in mind was death in the same air crash, road accident, ship collision or similar calamity.

 

 It is not about what the testator intended to do when they made their will. Where there is an ambiguity or a deficiency on the face of the will, no extrinsic evidence as to the intentions of the testator may be admitted e.g. of the description of a person or property in the will is so vague that there is no person or property to whom it can apply, the bequest will be void for uncertainty (see Rule 25).

 

In Re Feather (1945)Ch 343,a testator bequeathed $2000 to his servant “if still in my employ”.  The servant was conscripted into the army and was still serving when the testator died.Evidence was adduced that shortly before he died, the testator had affirmed to one of his executors that he wished this legacy to stand and regarded the servant as still in his employment.  It was held that such evidence was not admissible to prove that the testator intended the servant to have the legacy whether still in his employment or not.

 

There are, however, circumstances where extrinsic evidence of the testator’s intention is admissible in construing wills. These circumstances are where the armchair rule applies, the words are ambiguous on the face of the will, there is latent ambiguity or any part of the will is meaningless.

 

In addition to ascertaining the intention of the testator from the will, the court also has to see whether the will can be carried into effect consistently with the rules of law. In Wakf Commissioner of the Colony and Protectorate of Kenya vs. Alimohamed Ali Nahdi Executor of the Will of  Aisha bintiShafi, deceased (1951) 18 EACA 86 (Sir Newnham Worley VP, Lockhart-Smith JA and De Lestang J) the testatrix, a Muslim woman, gave a house by her will to a mosque apart from the land on which it stood.. It was held that although Islamic law permits house and the land it stands on to be legally in different ownership, the same was inconsistent with the Land Titles Ordinance. The disposition of the house alone was found to be invalid and intestacy resulted. It was further found that the express provisions of the Land Titles Ordinance had ousted the Islamic position on the matter.

 

(a) The armchair rule

In construing the will the court can put itself in the testator’s position at the time he or she made their will, in order to understand the words of the will itself (Boyes vs. Cook (1880) 14 Ch D 53). The objective of the exercise is so that the court can make itself aware of the facts that were known to the testator at the time of the execution of the will.

 

The armchair rule is used most commonly to identify the beneficiary or the subject matter of the gift. It is applied by the courts by construing the will without reference to the surrounding circumstances and applying the apparent effect of the will to the surrounding circumstances to ascertain that the will is being construed in accordance with the circumstances which prevailed at the time when the will was made.

 

This rule can only be used to confirm the apparent effect of a will or to shed light on vague terms. It cannot be used to alter the effect of the words used in the will if those words are clear and unambiguous. The armchair rule could be used to explain an unclear term (Ricketts vs. Turquand(1848) 1 HL Cas 472). (Kell vs. Charmer (1856) 23 Beav. 195, National Societyfor thePrevention of Cruelty to Children vs. Scottish National Society for the Prevention of Cruelty for the Prevention of Cruelty to Children).

 

(b) Ambiguous words

Where words are ambiguous on the face of the will, either direct or circumstantial evidence is admissible to explain the words used. Words are said to be ambiguous on the face of the will where the words used have more than one normal meaning, as in the terms ‘money’ and ‘my effects’, or where the words used are equally applicable to two or more persons or items of property. 

 

(c) Latent ambiguity

A latent ambiguity occurs where a will is ambiguous not on its face, but only in the light of the surrounding circumstances, for example where a testator gives property to ‘my nephew Onyango’, and the testator had several nephews by that name. Another example is where he testator leaves his ‘Volkswagen beetle to my daughter’, and the testator had more than one Volkswagen beetle. This type of ambiguity is also called equivocation. Equivocation not only occurs where the description fits two persons or things exactly, but also where the description is not in all respects totally accurate (Bennett vs. Marshall (1856) 2 K & J 740). If equivocation cannot be solved with the aid of extrinsic evidence, the gift will fail for uncertainty.

 

(d) Meaningless provisions

A meaningless provision is one where the court cannot without extrinsic evidence give any meaning to the word or phrase (Kell vs. Charmer).

 

A provision of a will cannot be said to be meaningless, simply because the provision seems pointless, in the sense that it has no effect. So if a testator was to provide ‘ I give nothing to my son’, the clause would not be meaningless and extrinsic evidence would not be admissible to suggest that the testator meant anything other than to make no provision in her will for his son.

 

Extrinsic evidence is not admissible on the basis that a provision is meaningless, in order to complete a blank space in a will. For instance, if a legacy provided ‘I give my son Kamau…’ The rationale for the rule is that the purpose of admitting extrinsic evidence is to assist in the interpretation of the will, and arguably one cannot interpret a blank space. Interpretation should be of a phrase as a whole.

 

(The only exception to this principle is that evidence may be led as to the circumstances in which the testator was situated at the time he made a will, so as to help the court to ascertain the meaning he intended to impute to his chosen wording e.g. it is admissible to adduce evidence as to the state of his property at the time he made the will or at his death in order to ascertain to what property the will refers e.g.  if he refers to this house No. 029 in Langata estate but there is a clear evidence that the only house he had in Nairobi is number 092 in Langata estate, this evidence is admissible – Ref: Re  Smalley Supra).

 

8.6 Ascertaining the Subject Matter of Gifts

Paragraph 3 of the First Schedule provides that, as regards property, a will speaks from the date of death unless a contrary intention appears by the will. A gift of ‘all my shares’ would be taken to refer to all the shares owned by a testator at the date of his death, rather than being confined to the shares which he owned at the date on which he executed his will. Paragraph 3, however, states that with reference to specific gifts or legacies, the presumption is that the will speaks as at the date of its actual execution. 

 

In In the Matter of the Estate of Ivo Murray Murton, Deceased (1938) 18 (1) KLR 65 (Sir Joseph Sheridan CJ)) where the testator directed the trustees to hold property upon trust for his son until the son attained majority age, it was held that the son took a vested or contingent interest in the property at the testator’s death and on attaining majority age was entitled to a conveyance and transfer of the property to his name.

 

A contrary intention refers to where the property is described in a very specific way (Re Gibson (1866) LR 2 Eq 669, Re Sikes (1927) 1 Ch 364). In deciding whether there is a contrary intention to Paragraph 3, difficulties occur where the testator uses terms such as ‘now’ and ‘at present’. Whether such words amount to a contrary intention to the operation of Paragraph 3 depends on whether the reference to the present time is construed as an essential part of the description of the subject matter of the specific gift. If it is, this will operate as a contrary intention to Paragraph 3. (Re Fowler (1915) 139 LT Jo 183, Re Willis (1911) 2 Ch 263, Hepburn vs. Skirving(1858) 32 LTOS 26).

 

The fact that the testator, after the execution of the will, acquires a different interest in the property that forms the subject matter of a gift does not necessarily prevent the court from finding that Paragraph 3 operates to make the will speak from the date of death (Saxton vs. Saxton (1879) 13 Ch D 359).

 

The effects of the republication of a will need to be considered in the light of Paragraph 3. If Paragraph 3 operates to make the will speak as to the property from the date of the testator’s death, obviously the republication of the will has no effect. If Paragraph 3 does not apply because a contrary intention is in operation, the will is generally taken to speak from the date of the codicil. (Re Reeves).

 

In In the Matter of the Estate of Ivo Murray Murton, Deceased (1938) 18 (1) KLR 65 (Sir Joseph Sheridan CJ)) it was stated that 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.

 

8.7 Ascertaining the Beneficiaries

Paragraph 3 only applies to property. References to people are as a general rule construed to refer to people at the date the will was made, unless there is a contrary intention. A gift to ‘my shamba boy’ would refer to the testator’s shambaboy at the date of the will. A gift to the ‘youngest child of my niece Kanini’, and the youngest child of Kanini alive at the date of the will was Wayua, but Wayua had died by the date of the testator’s death. The consequences of the general rule that a will is construed referring to people at the date of the will, is that the gift to Kanini’s youngest child will lapse, even if Kanini has other children alive at the testator’s death. (Re Whorwood(1887) 34 Ch D 446).

 

It is, however, possible to have a contrary intention to the general rule that, as regards reference to people, a will speaks from the date of the will. (Re Daniels (1918) 87 LJ Ch 661, Radford vs. Willis (1871) Ch App 7). Where no person fulfils the description at the date of the will needs to be distinguished from that where a person fulfils the description at the date of the will, but by the date of the testator’s death, that description has become inoperative to them (Radford vs. Willis). 

 

A number of difficulties in construction of a will occur in relation to gifts where the relationship is specified. This is particularly so where a gift is made to children or remoter issue. Regarding relationships referred to in the making of gifts generally, there is a presumption that the only persons to take are blood relatives, and not relatives by affinity or marriage. A gift to ‘all my nieces’, does not include any females born to a brother or sister of his wife.  In Rashida Begum vs. Administrator General and another (1951) 18 EACA 102 (Sir Barclay Nihill P, Sir Newnham Worley VP and Pearson Ag.CJ) the clause ‘other relations’ was construed to exclude the testator’s adopted daughter. It was stated that the ordinary meaning of the word ‘relation’ does not include an adopted child. The presumption can be rebutted by evidence of a contrary intention.  The position regarding relatives of half-blood is unclear. It was, however, suggested in Re Reed (1888) 57 LJ 790, that there is a presumption that relatives of half- blood are included.

 

Difficulties often occur over the use of the word ‘children’ or the term ‘issue’. Children includes children en ventresa mere (Villar vs. Gilbey(1907) AC 139), and there is a presumption that the term ‘children’ refers to immediate children. The presumption may be rebutted by evidence that grandchildren and remoter issue were intended (Loring vs. Thomas (1861) 1 Drew &Sm 497). ‘Issue’ technically means children, grandchildren and remoter descendants, but in some matters, the courts have construed the term to refer only to the children of the testator (Re Noad(1951) Ch 553).

 

8.8 The Class Closing Rules

A class gift is a gift to be divided amongst individuals who fulfil a general description, where the amount that each individual gets depends on the number of beneficiaries falling within the class. A gift of Kshs. 400,000.00 to Mureithi’s children is a class gift. How much each child of Mureithi receives depends on the number of children that Mureithi has. Class gifts could (if it were not for class closing rules) make it difficult for the personal representatives of an estate to make an early distribution of the property to be given to the class. Class closing rules are rules of convenience, designed to allow personal representatives to distribute the estate at the earliest opportunity. The rule frowns on keeping property out of circulation or use for a long period of time. The rationale behind the class-closing rule is similar to the rationale for the perpetuity principle. It is, however, often argued that the rules frequently act against the intentions of a testator, as they have the effect of excluding from the class beneficiaries whom the deceased intended to benefit.

 

The class closing rules originate from the case of Andrews vs. Partington(1791) 3 Bro CC 401. The rules only apply to gifts made by will and operate so that the class closes at the date on which the first member of the class becomes entitled. Precisely how the rules operate depends on the nature of the gift.

 

There are four types of class gifts.

 

(a) Immediate class gift

This usually takes the form of a gift say ‘to the children of Akinyi’. If Akinyi has a child who is living at the testator’s death, the class closes at the testator’s death and includes all the children of Akinyi alive at that date (In the Matter of the Estate of W. J. Bellasis, deceased (1919-21) 8 EALR 142 (Barth J). In RustomjiKersasjiKhursedjiSidhwa vs. DinshawRuttonji Mehta and others (1934) 1 EACA 38 (Abrahams CJ, Lucie-Smith Ag. CJ and Horne J)) a direction in the will that a share be paid to ‘to Rustomji’s children during their lifetime’ was construed as meaning both those children who were living at the testator’s death and those born subsequent to that event.

 

In In the Matter of the Estate of W.J. Bellasis, deceased (1919-21) 8 EALR 142 (Barth CJ), a gift to husband and wife ‘and their family’ was construed as giving an immediate life interest in the gift to the husband and wife with a remainder to any children of the marriage born before or after the death of the testator.

 

(b) Deferred class gift

This would take the form of a gift say ‘to Kwamboka for life with remainder to the children of Nyakenyanya’. If Nyakenyanya has no children at the testator’s death, the class remains open until Nyakenyanya dies, and includes all children subsequently born to Nyakenyanya. If Nyakenyanya has a child before the death of Kwamboka, the class closes at Kwamboka’s death, and includes all the children of Nyakenyanya who are alive at that date. It, however, will close at the testator’s death if Kwamboka predeceases the testator. If Nyakenyanya has no children at Kwamboka’s death or the testator’s death, the class remains open until Nyakenyanya dies. (See In the Matter of the Estate of W.J. Bellasis, deceased (1919-21) 8 EALR 142 (Barth CJ)).

 

In LatifSuleman Mohamed vs. K..J. Pandya and others (1963) EA 416 (Sir Ronald Sinclair P, Sir Trevor Gould  Ag. VP and Newbold JA) 

 

(c) Contingent class gift

This would be a gift say ‘to the children of Kimathi who attain 21 years’. If Kimathi has a child who reaches 21 years before the testator’s death, the class closes at the testator’s death and includes all children of Kimathi alive at that date who subsequently reach 21 years. If Kimathi has no child who has reached 21 years by the date of the testator’s death, then the class only closes when the first child of Kimathi reaches 21 years and includes all children alive at that date.

 

(d) Contingent and deferred class gift

This would be both a contingent and a deferred gift. It could take the form of a gift; say ‘to Mulusa for life with remainder to the children of Luvaga who attain 21 years’. If Luvaga has a child who has reached 21 years by the date of Mulusa’s death, or the testator’s death if this is later, the class closes at this date. The class will then include all children alive at the date the first child reaches 21 years who subsequently reach 21 years. If no child of Luvaga has reached 21 years by the date of Mulusa’s death or that of the testator if later, then the class remains open until the first child reaches 21 years and all children alive at that date who subsequently reach 21 years. 

PART THREE: INTESTACY

CHAPTER NINE

 

9.0 INTESTATE SUCCESSION

9.1 INTRODUCTION

Intestacy occurs where a person dies without having made a will, the person’s attempt to die testate fails upon the invalidation of his will or the person revokes his will and subsequently dies without having made another will (section 34 of the Law of Succession Act).The rules of intestacy determine the question who is entitled to the property of the estate of an intestate. Intestacy may be a total or partial. It is total where the intestate has left no valid will. It is partial where: a person fails to include all his property in his otherwise valid will or part of the will is declared invalid or a part of the will is revoked or a person acquires property subsequent to the making of the will (and the will is ambulatory). The property not covered by the will is governed by the intestacy provisions or is subject to intestate succession. 

             

Provisions relating to intestacy are contained in Part V sections 32 to 42 of theLaw of Succession Act.The intestacy rules only benefit people who also have a direct blood link with the intestate that is apart from spouses.  It does not confer benefit on such categories as unmarried partners and parents-in-law.  To benefit such persons the deceased has to make a will.  In the absence of blood relatives, the estate passes to the state bona vacantia. Any one claiming to be a relative or a person beneficially entitled who considers that the rules of intestacy do not make reasonable provision for them may make a claim under the family provisions in section 26 of the Law of Succession Act, and the rules of intestacy may be varied by the court to make adequate provision for the person. The rules of intestacy only apply to property that is capable of being disposed of by a will. They do not apply to joint property, which passes by survivorship, or to nominations, life policies written in trust, or the subject of a donatio mortis causa.

The Law of Succession Act makes provision for both monogamous and polygamous situations and the nature of devolution of property upon intestacy depends on whether the deceased was polygamous or monogamous. Sections 35 and 36 deal with the monogamous situations, section 40 covers the polygamous situation, while sections 37 to 39 are general provisions applying to both.

Part V of the Act only applies to the estate of a person who dies after the Act came into force. Under section 2(2), the law applying to the estate of a person who died before the Act became operational is the law that was in force at the time. So was the decision of the Court of Appeal in Cleopas Simiyu and another vs. MauriseBarasaWatambala and others, where section 40 of Part V of the Act was applied to the estate of a person who died in 1970.

 

The intestacy provisions do not apply at all where the deceased died testate, even if the will is on the face of it unfair to the survivors. The approach adopted by Ondeyo J in the Matter of the Estate of Benson Ndirangu Mathenge (deceased), cannot be correct. The deceased had died testate, but the court held that there was an element of unfairness in the will and disregarded it and dealt with the estate as if the deceased had died intestate. With respect, if a survivor feels that the contents of a will are unfair to him he should resort to section 26 of the Act, otherwise the court has no power to disregard a testamentary instrument unless the same if invalidated in the first instance.

 

9.2 Exemption of Certain Property from the Intestacy Provisions

Section 32 of the Act empowers the Minister to disapply by a notice in the official gazette, agricultural land and crops on such land or livestock in some areas from Part V of theAct.The Minister (Attorney General) in 1981 exempted property in the predominantly pastoral areas of Marsabit, Narok, Tana River, Samburu, West Pokot, Turkana, Isiolo, Mandera, Wajir, Garissa, Lamu and Kajiado from the intestacy provisions pursuant to section 32. Section 33 of the Act applies African customary law to the property excluded under section 32. The administration of the estates exempted from Part V of the Law of Succession Act falls under African customary law. Section 44(1) of the Law of Succession Act disapplies Part VII of the Act, which deals with administration of estates, to the types of property mentioned in section 32. The Law of Succession Act contemplates a capitalist market economy of individual ownership of property under which it is possible to determine the appropriate share of each individual. In the pre-dominantly pastoralist areas individual ownership of property is not recognized and succession to property is better left to the customary law of the people concerned. The majority of the inhabitants of those areas are unlikely to accept or understand the provisions of the Act, which in any event may be incompatible with their way of life.

 

Sections 32 and 33 do not provide a blanket exemption covering all African intestates. However, the Court of Appeal has interpreted sections 32 and 33 to mean that all Africans intestates are exempt from the intestacy provisions of the Law of Succession Act. In Mwathi vs. Mwathi and another the deceased died in 1987 and was unmarried.  A brother (the appellant) and two sisters (the respondents) survived him.  He hailed from Kiambu District.  His will was declared invalid by the High Court, which ordered the estate to be shared equally between the appellant and the respondents in terms of Part V of the Act. The appellant aggrieved by the order appealed to the Court of Appeal, which upheld the High Court decision with respect to the invalidity of the will and confirmed that the appellant had died intestate.  It, however, differed with the High Court by holding that the applicable law was customary law and not the intestacy provisions in Part V of the Act.A portion of the Court of Appeal judgement asserts-

...the intestate succession of a deceased Kikuyu is governed by the Kikuyu Customary Law.  The asset involved is a piece of land and the matter must therefore be determined by Kikuyu Customary Law relating to land inheritance…

 

There is no basis at all in law for the Court of Appeal’s decision in Mwathi vs. Mwathi and another.The deceased died after the Act came into force and customary law was not applicable since it was excluded from operation by section 2(1) of the Law of Succession Act, unless allowed by the minister through sections 32 and 33 of the Law of Succession Act. Besides, the property in question was situate in Kiambu district, which is not one of the districts specified in Legal Notice No. 94 of 1981.  It is regrettable that such an erroneous decision came from the highest court in the land. It is binding on the High Court and the subordinate courts: it has not been overruled to date.

 

The Court of Appeal’s decision in Rono vs. Rono and another is the first by that court where sections 32 and 33 of the Act were correctly applied and interpreted. The land in dispute was situated in UasinGishu district in the Rift Valley province. The court found that section 2(1) Law of Succession Act excludes the application of African customary law unless the Act makes provision for it.  It does so under sections 32 and 33, but the exclusion is limited to property exempted from Part V of the Act by virtue of section 32. Legal Notice No. 94 of 1981 did not exclude property in UasinGishu district and therefore Keiyo customary law could not apply to the intestate estate of a resident of UasinGishu district. 

 

9.3 Rights of a Surviving Spouse

For the purpose of the rules of intestacy, a divorced spouse has no rights to the intestate’s estate; a judicially separated spouse is, however, entitled. This applies to all legal marriages whether contracted under statute or customary law. Customary law marriages include the woman-to- woman marriage arrangements. Under section 3(1) of the Law of Succession Act a separated wife is considered a wife for succession purposes. The divorced spouse may make a claim under the family provisions in section 26 of the Law of Succession Act for reasonable provision from the estate. The definition in section 29 of a dependant for the purpose of section 26 includes a former wife or former wives. It also covers the wife recognised as such and protected under section 3(5) of the Law of Succession Act.

 

These provisions apply equally to widows and widowers since the children ultimately get the property in either case. Where the surviving spouse is a widow, she will be considered the most important person as far as inheritance rights are concerned and two reasons are given for this. One, the property available for distribution would have been partly acquired by the deceased with her efforts. Two, she is in most cases the person who needs the property most. The paramount purpose of the rules of intestacy is to handover the deceased’s estate to the person who is likely to use it in the best interest of the deceased’s heirs and dependants. This person is usually the mother of the deceased’s children. 

 

(a)  Intestate leaves spouse and child or children

This is dealt with in sections 35 and 37 of the Law of Succession Act. In such situations, the surviving spouse is entitled to the personal and household effects of the deceased absolutely and a life interest on the whole of the residue of the net intestate estate. Personal and household effects are defined in section 3(1) of the Act to mean clothing, articles of personal use, furniture, utensils, appliances, pictures, ornaments, food drink and all other articles of household use and decoration normally associated with a matrimonial home, but it does not include anything connected with the business or profession of the deceased. A surviving spouse includes a wife married under the customary law arrangement of woman-to -woman marriage (In the Matter of the Estate of Tabutany Cherono Kiget (deceased) Kericho HCP&A 157 of 2001 (Kimaru J), In the Matter of the Estate of Naomi Wanjiku Mwangi (deceased) Nairobi HCSC No. 1781 (Koome J) and In re estate of Ng’etich(2003) KLR 84 (Nambuye J)). 

 

Under this provision, the surviving spouse only gets the chattels absolutely, and is only entitled to a life interest on the rest. The ultimate destination of the property the subject of the life interest is to the children in the event of the demise of the surviving spouse.The life interest operates as a safeguard for the children in cases where the surviving spouse is likely to waste the property. The surviving spouse enjoys the property in their life time and holds the same in trust for the children and failing them, other relatives of the deceased. In the case of In theMatter of the Estate of Anjuri (Deceased) the deceased was survived by the wife and three children. The widow applied for a grant of letters of administration of his intestate estate.  Several persons who claimed to be beneficiaries opposed her application. Among them were the deceased’s brothers, sisters, mother and alleged daughter. The court found that except for the mother, the rest had not proved dependency and dismissed their opposition to the application. In finding for the widow, the court observed that under intestacy, the estate would be administered under section 35(1) of the Act and so the surviving spouse would be entitled to personal and household effects of the deceased absolutely and a life interest in the whole of the net intestate estate.  The court took into account, inter alia, the fact that the deceased and the widow acquired the assets forming the estate jointly during marriage and in any event, she was the owner of half of all the properties as of right.

 

A proviso to section 35(1) states that if the surviving spouse is a widow the life interest determines upon her remarriage. 

Section 37 allows the surviving spouse during life interest, subject to the consent of all the co-trustees and all the adult children or the consent of the court, to sell any of the property the subject of the life interest for their own maintenance.  The widow may of necessity be compelled to sell some property for her own maintenance and that of her children. Where the subject property is immovable, the consent of the court is mandatory in view of the importance attached to family land in Kenya.

 

A life interest only entitles the surviving spouse to the use and utility of the property the subject of the life interest. The surviving spouse holds the property during life interest as a trustee and stands in a fiduciary position with relation to the property. The property does not pass to the surviving spouse absolutely. In the Matter of the Estate of BasenChepkwony (deceased), Koome J held that where the property in issue is land, it cannot be registered in the name of the surviving spouse absolutely since she only enjoys a life interest and holds the same in trust for the children and other heirs.

 

The division of property of an intestate who dies leaving a spouse and children should be in accordance with section 35. Sections 26, 27 and 28 of the Law of Succession Act are not relevant for the purpose of Part V of the Act. Sections 26, 27 and 28 are only relevant for applications brought under section 26 of the Act. The provisions of Part V do not come into play at all in applications brought under section 26 of the Act for reasonable provisions by the court. In the circumstances the decision of Kimaru J inthe Matter of the Estate of Tabutany Cherono Kiget (deceased) Kericho is not supported by the law. In that case, what was before the court was an application brought by the customary law wife of the deceased (in a woman-to-woman arrangement) for the revocation of a grant made to the daughters of the deceased (by her deceased husband). At the end, the court found that the widow and daughters were all dependants. Thereafter the court expressed itself as guided by sections 26, 27 and 28 in making the final orders on the distribution of the estate. This was not proper, as there was no application before the court brought under section 26 for reasonable provision out of the estate. The court fell into error when it held that the parties were dependants, instead of survivors and heirs of the deceased. If the court had come to the conclusion that the widow and daughters were heirs and survivors, it would have held that the property fell for distribution in accordance with section 35 in Part V of the Act. Interestingly, the court did not consider Part V at all.

 

(b)  Intestate leaving spouse and no children of their own

Under section 36 where the intestate has left one surviving spouse but no child or children, the surviving spouse is entitled out of the net intestate estate to: the personal and household effects of the deceased absolutely, the first Kshs.10, 000.00 out of the residue of the net intestate estate or 20% of the residue of the net intestate which ever is greater, and a life interest in the whole of the remainder. The life interest is lost upon the re-marriage of surviving spouse. Section 36(2) gives the minister discretion to alter or vary the amount of Kshs.10, 000.00 in section 36(1)(b).  This discretion has not been exercised so far, although the figure of Kshs. 10,000.00 was fixed in 1972. The variation of the amount of Kshs. 10, 000.00 is long overdue given the prevailing economic circumstances.

The rest of the property that is the remaining 80% and the final destination of the property the subject of the life interest in the event of the termination of the life interest devolves upon the other surviving relatives of the deceased as set out in section 39 of the Law of Succession Act.

 

9.4 Rights of Children

The children of the deceased are the next category of next of kin of an intestate to benefit from an estate after any surviving spouse. Where the intestate leaves a surviving spouse, the children are not entitled absolutely to property, but the surviving spouse holds the estate in trust for the children. Section 35(5) deals with what should happen in the event of the death of the surviving spouse or the re-marriage of the widow.  The whole residue of the net intestate estate, that is the portion subject to the life interest, devolves upon the surviving child, or if more than one, to the children.  In the latter case it should be divided equally among the children taking into consideration any property held in trust for a child or any previous benefits or any power of appointment (“power of appointment” means power vested in some person to determine the disposition of property of which that person is not the own) or any award of the court made under section 35(3) and (4). 

Under section 35(2), a surviving spouse has the power of appointment which is the power to dispose of the capital of the intestateby way of gift taking effect immediately among the surviving child or children.  The power cannot be exercised by way of will or to take effect at a future date. Section 35(3) allows a child aggrieved by the exercise of the power of appointment to move the court for appropriate orders. 

 

It would appear that the division of the property between the children should be in equal shares.  In the Matter of the Estate of KinyuruKaranja (deceased),Waweru J held that a proposal by a woman to share out the estate of her deceased husband among their sons in a manner which would have resulted in one of them getting a larger share was wrong. He directed that the estate be divided equally between the sons.

Where the intestate has left a surviving child or children but no spouse section 38 applies. The net intestate estate devolves upon the child or children. Where they are more than one the estate is divided equally among them.Inthe Matter of the Estate of Mary Wanjiru Thairu (deceased) (Ang’awa J), a son and six daughters survived a single parent.   The son attempted to inherit the entire estate. His application was rejected. 

 

The share of the estate to which children, who are below age, are entitled is held on statutory trust, the terms of which are set out in section 41 of the Act. Section 41 provides that the share of the children is to be divided equally between the children  of the intestate living subject to such children fulfilling the contingency of attaining the age of eighteen years or, in case of female children, marrying under eighteen. 

The provisions on children, sections 35 and 38 of the Act, are silent on the fate of surviving grandchildren, whose parents have pre-deceased the intestate. The rule of substitution of a grandchild for his or her parent in all cases of intestacy where the parent dies before the intestate is known as the principle of representation. The law on this is section 41. If a child of the intestate has predeceased the intestate or dies before attaining eighteen years, then that child’s issue alive or en ventresa mere at the date of the intestate’s death will take in equal shares per stirpescontingent on attaining the age of majority or, if female, marrying under that age. Per stirpes means that the issue of a deceased child of the intestate take between them the share their parent would have taken had the parent been alive at the intestate’s death and, either before or after the intestate’s death, attained eighteen years or, if female, married under that age.

Section 42 requires that in determining the final share of a child, grandchildren or house account should be taken of a previous benefit that is: property settled or given during lifetime or by will, and any property appointed or awarded to any child or grandchild under sections 26 and 35 of the Law of Succession Act. This is called bringing the property to the hotchpot.

 

Reference to children does not distinguish between sons and daughters, neither is there distinction between married and unmarried daughters. The definition of child is without reference to the child’s gender or marital status.

 

The children of a male deceased person include his children born out of wedlock to women who were not married to him. The fact that the mother was not married to the deceased is no bar to the child inheriting his or her deceased father in intestacy.SeeMatheka and another vs. Matheka Nairobi. Marriage is not a factor in determining a child’s right to inherit his father.

 

Issues of paternity often arise on the question of whether a particular child is the progeny of the deceased and therefore an heir in intestacy. Section 118 of the Evidence Act is a guide in determining the matter. It provides that 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, should be conclusive proof that he was the legitimate son of the 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 begotten. Section 3 of the Law of Succession Act is instructive where the issue of paternity cannot be proved, where there is evidence that the deceased took in the child and accepted him as his own he will be treated as a child for the purpose of succession.

 

9.5 The Rights of Other Relatives

The effect of section 35 of the Law of Succession Act is that if the intestate is survived by a spouse and child or children then no other relative of the intestate will benefit.Other relatives can only access the estate through section 26 of the Act for reasonable provision if they can show that they were dependent on the intestate immediately prior to his death. 

If a spouse survives the intestate but there are no children, section 36 of the Act applies. The surviving spouse takes a portion of the estate absolutely, that is: the personal and household goods absolutely, the first Kshs. 10 000.00 out of the residue of the net intestate estate or 20% of the residue whichever is greater and a life interest of the remainder (which determines following the remarriage of the widow). Upon the determination of the life interest, the property involved devolves upon the kindred of the intestate as set out in section 39 of the Act, and where there is no such kindred the net estate devolves upon the state and is paid into the Consolidated Fund.

 

Where the intestate leaves no surviving spouse or children section 39 applies.  The net intestate estate should devolve upon the kindred of the intestate, that is  blood relatives, in the following order: father, or if dead; mother, or if dead; brothers and sisters and any child or children of the deceased’s brothers and sisters, in the equal shares, or if none; half-brothers and half sisters and any child or children of the deceased’s half brothers and half sisters in equal shares, or if none; the relatives who are in the nearest degree of consanguinity (blood relation) up to and including the sixth degree in equal shares; and if there are no such relatives the net intestate estate devolves upon the state bona vacantia.  The estate is liquidated and the proceeds paid into the Consolidated Fund.

 

Each category must be considered in the order listed in section 39.  The parties in each category take in equal shares. Only if there is no one in a particular category is it necessary to proceed to the next category. The spouse of a person within any of the categories has no claim, as a blood relationship is necessary in order to benefit under the intestacy rules. Relatives take on the statutory trusts, so they must be alive at the date of the intestate’s death, and attain the age of eighteen or, if female, marry under that age (section 41 of the Law of Succession Act). 

 

9.6 Division of the Intestate Estate of a Polygamist

Section 40 addresses the case of a polygamous intestate. His personal and household effects and the residue of the net intestate estate should in the first place be divided among the houses according to the number of children in each house. Distribution of the estate should thereafter follow the provisions in sections 35 to 38 of the Act. In Rono vs. Rono and anotherthe deceased was survived by his two widows and their nine children. The first widow had three sons and two daughters while the other widow had four daughters. The first house sought to have the estate shared in accordance with customary law, which meant that the second house was entitled to a small share since daughters are not entitled under customary law to inherit their deceased parents. The Court of Appeal held that customary law did not apply: the applicable law is section 40 of the Act, which makes provision for distribution of the net estate to the houses according to the number of children in each house, but adding any wife as an additional unit to the number of children.Omolo JA stated that section 40 did not require that the estate be divided equally between the houses, as the provision calls for the consideration of the number of children in each house. 

 

In the Matter of the Estate of Benson Ndirangu Mathenge (deceased) the deceased was survived by his two widows and their children. The first widow had four children, while the second widow had six children. The court stated that the first house was comprised of five units while second had seven units. The two houses of the deceased combined and looked at in terms of units made up twelve units. The court distributed the estate to the children and the widows treating each as a unit. The land available for distribution was forty acres, which was divided by the court into twelve units. Out of the twelve units, five were given to the first widow and her four children, while the remaining seven units went to the second widow and her six children

9.7 Devolution to the State

Where an intestate is not survived by any of the relatives set out in section 39 of the Law of Succession Act, under section 39(2) the estate devolves upon the state, is liquidated and paid into the Consolidated Fund. The state takes it bona vacantia as property which no one claims and in respect of which there is no succession. The state does not claim it by succession at all, but because there is no succession. The state holds a radical title to property which does not have an owner. 

 

9.8 Adopted, Legitimated and Illegitimate Children

Previously intestacy provisions in English succession law statutes only applied to legitimate children, whether of the deceased or any other relative. African customary law and Islamic law generally provide only for the legitimate children of the intestate. The Law of Succession Act has modified the position and provides for adopted, legitimated and illegitimate children.

 

(a)  Adopted children

For the purpose of entitlement under the rules of intestacy, an adopted child is deemed, by virtue of sections 171, 172, 174, 175 and 176 of the Children Act, 2001, (especially section 174 on Intestacies, wills and settlements)related to the adopted parent and not the natural parental. For the purpose of determining whether an adopted child was living at the date of the intestate’s death, the adopted child is treated as having been born on the date of the adoption. An adopted child cannot therefore claim on the intestacy of a natural parent, but takes on the intestacy of the adoptive parent and other relatives by adoption, such as grandparents, brothers and sisters, and so on. Likewise, if the adopted child dies intestate, the child’s adopted parents, and not the natural parents, will be capable of benefiting under the rules of intestacy- as will brothers and sisters, grandparents and so on by adoption.             

According to the Court of Appeal in WillingstoneMuchigiKimari vs. Rahab Wanjiru Mugo NairobiCACA No. 168 of 1990 (Gachuhi, Muli and Akiwumi JJA) a child informally adopted by a female deceased person is not a child for the purpose of the succession to the estate of such deceased person. 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 whom he has voluntarily assumed permanent responsibility. 

 

(b)  Legitimated children

A child is legitimated by the subsequent marriage of their parents. Legitimated children are deemed to have been born legitimate and can therefore take on intestacy in the same way as any legitimate child (Section 3 of the Legitimacy Act Cap 145).

 

(c)  Illegitimate children

The definition of child in section 3(2) of the Act includes an illegitimate child, that is: a child born to a female person outside wedlock, a child whom a male person has recognised or in fact accepted as his child or for whom he has assumed permanent responsibility. The Court of Appeal in WillingstoneMuchigiKimari vs. Rahab Wanjiru Mugo, stated that the definition in section 3(2) of a child whom the deceased in fact had accepted as his own or for whom the deceased had assumed permanent responsibility only applies to a child whom a male deceased person had accepted or assumed permanent responsibility over. 

 

 As regards paternity section 118 of the Evidence Act is a guide. The provision states that  the fact that a child was born during the continuance of a valid marriage between the mother of the child and any man, or within two  hundred and eighty days after its dissolution, the mother remaining unmarried, should be taken to be conclusive proof that the child is a legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when the child would have been begotten. Under section 3(2) of the Law of Succession Act, the child has the same inheritance rights as the legitimate children of the intestate. 

 

9.9 Forfeiture and Intestacy

A person who commits the murder of the deceased is debarred, by section 96 of the Law of Succession Act, on grounds of public policy from taking a benefit on the intestacy of the deceased.

 

9.10 Commorientes and Intestacy

The doctrine of commorientes or survivorship is embodied in section 43 of the Act. It establishes that where the order of deaths of two or more persons is uncertain, the persons are presumed to have died in the order of seniority with the older person predeceasing the younger one. Under the provision, the doctrine does not apply as between spouses, who are presumed in the circumstances to have died simultaneously.

FOUR: PROTECTION OF ESTATES

CHAPTER TEN

 

10. PROTECTION PROVISIONS 

10.1 Introduction

Following the death of a person, it often happens that those who should obtain representation to the deceased’s estate take no immediate steps, exposing the estate to wastage and misapplication by either the beneficiaries or other unscrupulous persons. There are provisions in the law to protect the estate from such an eventuality.

 

10.2 Intermeddling

The Law of Succession Act at section 45 provides that no person should handle, take possession, dispose of, or otherwise intermeddle with the free property of a deceased person unless authorized by law so to do or by a grant of representation. Under section 45(2) (a), it is an offence to intermeddle with an estate without legal authorisation: punishable with a fine, imprisonment, or both. In In the Matter of the Estate of Dr John Muia Kalii (deceased) Machakos HCSC No. 81 of 1995,  Mwera J pointed out that since intermeddling is a criminal offence, evidence in support of the allegation should be strong. Waki J stated in In the Matter of the Estate of Huseinbhai Karimbhai Anjarwalla Mombasa HCP&A No. 118 of 1989, that section 45 does not apply where the alleged intermeddler is the person who is lawfully allowed to deal with the affairs of the estate. Emukule J in Shital Bimal Shah and two others vs. Akiba Bank Limited and four others (2005) eKLR , stated that section 45 does not apply to acts of personal representatives under a grant of probate.

 

In Gitau and two others vs. Wandai and five  others (1989) KLR 231 (Tanui J) it was held that the act of one of the parties to the suit of entering into a sale agreement before grant of representation had been obtained amounted to intermeddling with the affairs of the deceased. In Mawji Narsi vs. Premji Purshottam (1918-22) 2 ZLR 47 (Reed J), a party was found to be an intermeddler since he had taken possession of trust property, knowing it was trust property. It was further held that he had not duly discharged himself from liability by handing over the property to the proper trustee or to the persons absolutely entitled to it.. In Ombogo vs. Standard Chartered Bank of Kenya Limited (2000) 2 EA 481, the Court of Appeal held that the practice at the time by the Law Society of Kenya (facilitated by Legal Notice Number 279 of 1995) of appointing practising advocates to wind up the firms of their deceased colleagues was inconsistent with section 45 of the Law of Succession Act, as the estate of a deceased advocate included the money held in trust for his clients. The acts of the advocates so appointed amounted to intermeddling with the estate of the deceased advocate.  In John Kasyoki Kieti vs. Tabitha Nzivulu Kieti and another Machakos HCCC No. 95 of 2001, Mwera J stated that doing anything affecting the estate of a deceased person, including commencing action on behalf of the estate before obtaining representation, amounted to intermeddling with the estate. Nambuye J, in Re Katumo and another (2003) 2 EA 508, stated that altering the state or condition of an asset which forms part of the estate amounts to intermeddling with the asset. In Kothari vs. Qureshi and another (1967) EA 564, Rudd J stated that the act of the executor of consenting to have his name put on the court file as a party amounted into intermeddling in the estate and by appearing through an advocate to conduct the appeal the executor had further intermeddled in the estate.

 

Hayanga J in In the Matter of the Estate of Mohamed Saleh Said Sherman also known as Mohamed Swaleh Sherman (deceased) Mombasa HCSC No. 145 of 1998, stated that the Law of Succession Act provides for protective powers to be exercised against wrongful disposal and intermeddling with any free property of the deceased except in accordance with the Act.  In the opinion of the court, the spirit of the Law of Succession Act gives the court wide jurisdiction in dealing with testamentary and administration issues. This is through section 47, which gives the court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and orders as may be expedient. The court then in exercise of inherent jurisdiction and compliance with the open jurisdiction under section 47 made restraining orders to safeguard the estate. In In the Matter of the Estate of David Murage Muchina (deceased) Nairobi HCSC No. 2077 of 2002, Kamau J gave restraining orders to stop a party from intermeddling in any manner whatsoever with any of the assets of the estate of the deceased pending the hearing and disposal of a pending revocation application. It is not indicated under which provisions the restraining orders were made, presumably in exercise of inherent powers. In In the Matter of the Estate of Kitema Mutiso Machakos HCP&A No. 1 ‘B’ of 2004, Wendoh J granted interim injunctive orders directed at intermeddlers. The decision, unhelpfully, does not indicate the provisions on which it was premised.

 

According to Nyamu J in Francis Kamau Mbugua and another vs. James Kinyanjui Mbugua Nairobi HCCC No. 111 of 2004 (OS), sections 45 and 46 of the Act provide detailed protective provisions concerning intermeddling with the estates of deceased persons. Furthermore, the probate court is empowered by section 47 to give all necessary orders, including injunctions where appropriate, to safeguard the deceased’s estate. In the court’s opinion an application for restraining orders brought outside the provisions of the Law of Succession Act, in this case under Order XXXVI of the Civil Procedure Rules, is incompetent. It was emphasised that Order XXXVI does not empower the court to grant injunctions in deceased estates outside the provisions of the Law of Succession Act. In any event a beneficiary, although entitled to bring an action under Order XXXVI, is not empowered under  Order XXXVI to institute suit and to obtain an injunction  to stop intermeddling without in the first place obtaining a full or limited grant of representation.  

 

This contrasts with the position taken by Khamoni J in In Re Estate of Kilungu (deceased) (2002) 2 KLR 136, where an injunction was sought under order XXXIX of the Civil Procedure Rules. It was contended by the applicants that an injunction was available as sections 45(10 and 76 of the Law of Succession Act, read together with rules 44, 49, 63 and 73 of the Probate and Administration Rules, allow the court to entertain such an application for injunction in probate proceedings. The court held that none of the provisions cited allowed the court to entertain an injunction application under order XXXIX of the Civil Procedure Rules. 

 

Nambuye J, in Re Katumo and another (2003) 2 EA 508, takes the position that there are no provisions in the Law of Succession Act for enforcing the protection provisions. In the opinion of the court, although the High Court has power vested in it by section 47 of the Law of Succession Act to hear and determine all manner and nature of applications  the Act does not have a provision whereby a named beneficiary could move in and seek to protect the estate in the absence of a grant of representation. The court concluded that where there is no provision covering a particular aspect of the dispute the court has no jurisdiction. The applicant had moved the court under sections 45 and 47 of the Act seeking an order that an asset, part of the estate of the deceased, be taken over by the court and be put in proper custody or in the alternative be handed over to the custody of the  applicant. According to Koome J in In the Matter of David Wahinya Mathene (deceased) Nairobi HCSC No. 1670 of 2004, the remedy available against intermeddling by an executor is through the procedure for seeking accountability.

 

The intermeddler, who is also known as an executor de son tort, that is an executor by his own wrong, may be required to apply for grant of representation. If he does not apply for representation, he will be answerable to the rightful executor or administrator to the extent with which he has intermeddled, after deducting any payments made in the due course of administration (section 45(2) (b) of the Law of Succession Act). In In the Matter of the Estate of Wilson Nzuki Nyolo (deceased) Machakos HCP&A No. 152 of 2000 (Mwera J), an intermeddler was directed to lay before the court the full and accurate statement to account for all the rents she had collected from the tenants of one of the assets of the estate and explain how she had applied the money.

 

10.3 Public Officers and the Protection of Estates

Section 46 vests authority on public officers with regard to protection estates of persons who die within the public officers’ area of jurisdiction. In Francis Kamau Mbugua and another vs. James Kinyanjui Mbugua Nairobi HCCC No. 111 of 2004 (OS), Nyamu J stated that sections 45 and 46 provide detailed protective provisions concerning intermeddling with estates of deceased persons. These provisions specifically empower the police, the provincial administration and the Public Trustee to deal with issues relating to intermeddling with estates of deceased persons.

 

Police or administrative officers are obligated to forthwith report the fact of the death of any person to the local assistant chief or chief or any other administrative officer of the area where the deceased had his last place of residence. The public officer to whom the report is made should, upon the request of any person who appears to have a legitimate interest in the estate of the deceased person or if no one has made an application for representation within one month, proceed to the deceased’s place of residence, ascertain his free property and  preserve it. He should also ascertain all the persons who appear to have an interest in succession to or administration of the estate, and guide the prospective executors or administrators on the formalities and their duties relating to the administration of estate. The public officer should thereafter report the fact of the death, as well as the steps he has taken with regard to the estate, to the Public Trustee. Where the last known place of residence of the deceased is within a municipality, or the deceased dies abroad regardless of where his property is situated, the public officer to whom the report is made should not take any steps unless he first reports the death to the Public Trustee. The Public Trustee may, upon receipt of the report take up the matter. 

 

The Court of Appeal in Ombogo vs. Standard Chartered Bank of Kenya Limited (2000) 2 EA 481, stated that section 46 applies to all classes of deceased persons. It makes no distinction between professionals and ordinary people, rural and urban people. It was pointed out that the public officers are expected to take the steps mentioned in section 46 if no application for representation of the estate has been made within one month. On the facts of the case, it held that the advocates appointed by the Law Society of Kenya to wind up the law firm of the deceased advocate could not fall within the requirements of section 46 of the Law of Succession Act.  

In Re Katumo and another (2003) 2 EA 509, Nambuye J stated that the only persons who can be relied upon to protect estates of deceased persons are the chief and his assistant since they are given authority to do so by section 46 of the Act. The court directed the chief and his assistant of the area where the estate of the deceased was situated to ensure that a particular asset was protected from being vandalised and ensure that the same was well preserved pending the issuance of a grant of representation.

10.4 The Public Trustee and the Protection of Estates

The Public Trustee, upon receipt of a report made to him by virtue of section 46 of the Law of Succession Act, should, under section 6 of the Public Trustee Act, make further inquiries as to the estate of the deceased. Where after making the inquiries, it appears to the Public Trustee that: the person died intestate; the deceased, having made a will, has omitted to appoint an executor; the persons appointed as executors in the will of the deceased are dead or have renounced probate or are unable to act; or the deceased has appointed the Public Trustee as the executor of his will, he may apply for a grant of representation under the Law of Succession Act.

 

Where the estate of a deceased person consists of property whose gross value does not exceed Kshs. 20,000.00 and the deceased has died intestate or left a will in circumstances that require the Public Trustee to apply for a grant under section 6 of the Public Trustee Act, the Public Trustee may take possession of the estate and administer the same without having to make an application to the court, under the Law of Succession Act, for a grant of representation (section 8(1) of the Public Trustee Act).

The other circumstance where the Public Trustee is expected to protect an estate is in relation to property of a person who resides abroad. Under section10 of the Public Trustee Act, where the agent in charge of any such estate dies leaving the property without any responsible person in charge, the Public Trustee should, upon being notified of the fact, apply to the court for an order allowing him to take charge of the property.

Where an estate of a deceased person consists of property whose gross value does not exceed Kshs. 5,000.00, the Public Trustee may issue a certificate of summary administration on the application of any person to whom probate or letters of administration may be granted (section 8(2) of the Public Trustee Act). This would entitle the person holding the certificate to administer the estate without a grant of representation, and to pay out of the estate any debts or charges, and any surplus to the person or persons who are entitled to it. 

 

10.5 Protection under the Penal Code

Section 350 of the Penal Code (In the Matter of the Estate of James Ngengi Muigai Nbi HCSC No. 523 of 1996). Francis Kamau Mbugua and another vs. James Kinyanjui Mbugua Nairobi HCCC No. 111 of 2004 (OS),

 

PART FIVE

GRANTS OF REPRESENTATION

CHAPTER ELEVEN

11.0Grants of Representation

11.1 Introduction

A grant of representation is an order, in the form of a certificate, issued by the court to confirm that a particular person is to act as a personal representative of the dead person. A grant should only be made in respect of the estate of one deceased person. It is not permissible to issue one grant in respect of two or more estates.  The High Court has jurisdiction under section 47 of the Law of Succession Act to make grants. The Chief Justice may under the same provision appoint resident magistrates to represent the High Court, the resident magistrates so appointed have jurisdiction to make certain types or classes of grants. 

 

11.2 Purposes and Types

There are two forms of grants under section 53 of the Law of Succession Act, namely, grants of probate and grants of letters of administration. Grants of letters of administration are further classified into grants of letters of administration with will annexed and grants of simple administration. The grant of administration in the case of testate succession establishes the validity of the will, while in intestacy it establishes that the deceased died intestate. A grant of representation is needed to administer the estate of a deceased person. 

 

11.3. Executors and Administrators

The personal representative represents the deceased. His role, generally known as representation, is that of a person authorised in law to dispose of the property of someone who has died. 

A personal representative appointed under a will to distribute the property of a dead person according to the terms of the will is called an executor as he executes the wishes of the dead person. The person appointed by the court in case of intestacy, and in testate cases where there is no proving executor, is called an administrator. The executor in testate succession derives his authority from the will and the grant of probate merely confirms the executor’s authority. In intestacy, the grant of letters of administration is the source of the authority of the administrator. Administrators are normally appointed where the deceased dies intestate. They will also be appointed in cases where the deceased dies leaving a will that, while disposing of the assets, does not appoint any executors or those appointed are unable or unwilling to act.

 

Executors and administrators should not be confused with beneficiaries. Beneficiaries are those persons benefiting from the distribution of the estate of a deceased person. A Personal representative can also be a beneficiary if he is entitled to a share of the estate. All that the administrator does is to administer the estate, by gathering the assets, identifying the liabilities and agreeing on the apportionment of the assets with the family. The grant of representation does not at all make the administrators heirs. The Court of Appeal pointed out in Sewe vs. Sewe& anotherheld that the appointment of administrators is not the same as distributing the assets to those who are entitled to inherit. 

 

(a) Appointment of executors 

Executors are usually expressly appointed by the will. Section 6 of the Law of Succession Act provides that a testator may appoint his executor or executors by will. The appointment of executors is not a mandatory requirement, but in practice a will is considered incomplete or badly drafted if it omits to appoint executors. Persons who are usually appointed executors include spouses, advocates, banks, friends and the Public Trustee.

 

(i) Spouses

A husband usually appoints his wife to be his executor and vice-versa, especially where they do not have grown up children.  This is preferable because in most cases, the spouse is the residuary legatee and it is only sensible that the person with the biggest stake in the estate should have a hand in its administration.  Where a spouse is appointed, it is also advisable to appoint a co-executor especially one of the grown up children.

(ii) Advocates

Advocates may also be appointed as executors, but the testator is not obliged to appoint as executor the advocate who drafts the will or keeps it in safe custody. Where an advocate is appointed as executor, the will should also provide for his remuneration for acting as such.  The relevant clause in the will usually provides that the advocate will charge his professional fees on the estate. Advocates are normally appointed executors where they are involved in the management of the estate. For example, where the advocate handles the legal affairs of the estate’s businesses or has been a family lawyer for the deceased.

 

(iii) Banks           

The bank is the most suitable choice of all available possible executors, particularly where there is family strife such that the appointment of a person within the family will lead to discontent. It may also happen where there is no other suitable individual at hand, for example, where a widow is making a will in favour of her children who are minors. A bank is most suitable as an executor where the will creates trusts that are likely to continue for many years.  The advantage with this is that the bank is capable of remaining executor for a longer period than a mortal executor who will need to be replaced eventually. Most banks have trustee departments whose sole responsibility is to manage the estates of persons who have appointed them executors.

         iv.     The Public Trustee 

The Public Trustee is an office in the Attorney-General’s chambers, which is designed to administer the estates of those persons who have appointed it to act as such or those who have failed to appoint anyone at all.

 

(b) Implied appointment of executors

In some cases, the executors may be impliedly appointed. Such executors are called ‘executors according to the tenor (intention) of the will’. To be so impliedly appointed it must be shown that the testator intended that the person so appointed should carry out the duties of an executor according to rule 28(i) of the Probate and Administration Rules. Whether a person is impliedly appointed an executor is dependent on the construction of the will. InRe Russell’s Goodstrustees were appointed ‘to carry out my will’ and this was held to be sufficient to make the trustees the executors according to the tenor of the will. In Re Adamsonit was held that the persons instructed under the terms of the will to pay the deceased’s debts and funeral expenses, and to pay the balance of the estate to named persons were executors according to the tenor of the will.

 

(c) Specialist executors

Where the estate is made up of certain types of property the testator may, and it is desirable that he should, appoint different people to deal with different parts of the estate. It is advisable that such executors be specialists in their fields. Persons falling in the category of specialist executors include advocates, banks, trust corporations and the Public Trustee.

 

(d)  Numbers of executors and administrators

Under rule 25(6) of the Probate and Administration Rule, a grant may be made either to a single person (including the Public Trustee and a trust corporation) or jointly to two or more persons (including a trust corporation) not exceeding four.

 

Section 6 of the Law of Succession Act does not limit the number of executors who may be appointed by will, but by virtue of section 56(1) (b) of the Law of Succession Act only four executors may take out a grant with respect to the same property or a particular part of the estate.  Inthe Matter of the Estate of Gathii Gatimu (deceased)it was held that the substitution of a deceased administrix by two persons brought the number of administrators to five contrary to the provisions of section 56(1) of the Act, the order on substitution was reviewed and the grant made to four persons.Section 56(1) (b) however does not specify the minimum number of executors who may take a grant, but one executor is considered to be sufficient. This contrasts with the position of the administrators, the Law of Succession Act at sections 58, 71(2A), 75A, 81 and 95(2) requires the appointment of a minimum of two administrators where there is a minority or life interest or where one arises thereafter in relation to the estate. In Veronicah Mwikali Mwangangi vs. Daniel Kyalo Musyokaa suit was struck out because the limited grant giving authority to the administrator contravened section 58 which requires that where a continuing trust arises the grant should be made to more than one person.

If a dispute arises, between the executors appointed under a will or in intestacy between more than four persons entitled to act as administrators, with respect to who is to take out a grant the matter may have to be resolved by a hearing before the judge or magistrate (In the Matter of the Estate of the late W.K. Kihika. 

 

11.4 Capacity to Take Out a Grant

In the case of testate succession, any person may be appointed an executor of the will, but that is not to say any one may take out a grant of representation. Under section 56(1)(a) of the Law of Succession Act a minor, a person of unsound mind and a bankrupt have no capacity to take out a grant of representation. Under Rule 32(1) of the Probate and Administration Rules in intestacy cases where the person to whom a grant ought to be made is a minor, administration should be made to an adult or adults for the use and benefit of the minor until he attains the age of eighteen. A similar provision is found in Rule 33 with relation to testate succession where one of the executors is a minor.  

A grant of representation may also be made, by virtue of section 56, to a body corporate, subject to certain restrictions. With respect to grants of letters of administration, section 56(2) provides that none should be made to a body corporate other than the Public Trustee or a trust corporation. Under section 57 no grant should be made to a syndic or nominee on behalf of a body corporate, but the application for grant may be signed by and affidavits in support sworn by officers or directors of the body corporate.

 

A universal or residuary legatee may, under section 63, apply for and a grant may be made to him in circumstances where an executor has not been appointed under the will or the executors appointed under the will have either died, renounced executorship, failed to apply for probate within the time given to them by a citation or are unable for whatever reason to act as executors.

 The representative of a residuary legatee who dies before the estate is fully administered may also apply and be granted probate under section 64 . 

 

Where none of the persons named above are available to take out probate or where they decline to do so or are incapable of acting the person who would be entitled to the administration of the estate if the deceased had died intestate or the Public Trustee or any other legatee with beneficial interest or a creditor may, by virtue of section 65,   apply for and a grant of letters of administration may be made to them.

Under section 66 of the Law of Succession Act the following categories of persons may apply for and be granted letters of administration: surviving spouse or spouses, children, parents, siblings, half siblings and other relatives (in the nearest degree of consanguinity up to the sixth degree) of the deceased, the Public Trustee and creditors. Kamau J inthe Matter of the Estate of Charles MuigaiNdung’u (deceased) stated that section 66 of the Law of Succession Act provides a general guide in hierarchical order of the persons who would be entitled to administer the estate of the deceased.

The intestacy provisions at sections 35, 36, 37, 38, 39 and 40 of the Law of Succession Act also provide a useful guide in determining to whom the grant of letters of administration should be made between various competing claimants. 

 

Under section 18 of the Married Women’s Property Act, 1882 a married woman has capacity to act an executrix or administratrix alone or jointly with any other person or persons of the estate of a deceased person, without her husband, as if she were a feme sole. This is only possible in testate succession, since in the event of intestacy sections 58, 71(2A), 75A, 81 and 95(2) of the Law of Succession Act apply and require the widow as surviving spouse to grant jointly with another. 

 

11.5 Executor de Son Tort

The term executor de son tort literally means an executor because of his own wrong. It refers to any person who acts as executor or administrator in the administration of an estate without authority. In intestate succession, the person may be entitled to a grant, but before obtaining the grant, has no authority to act. The acts complained of must not be of humanity or necessity since such acts do not constitute the person an executor de son tort. The acts must be consistent with the administration of the estate, such as paying the debts of the estate that strictly amounts to intermeddling with the estate and thus making the person an executor de son tort.

 

An executor de son tort has no rights over the estate, but is liable to creditors and beneficiaries of the estate to the extent that the assets pass through their hands. The executor de son tort is 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 normal course of administration (section 45(2)(b) of the Law of succession Act). The liability of an executor de son tort ceases when he hands over the assets to the lawful personal representative.

A citation may issue upon an executor, or a person who is entitled to apply for grant in intestacy, who has intermeddled in the estate of the deceased to show cause why he should not take a grant. It can be used to compel such an executor de son tort or person intermeddling in the estate to take a grant. The citation issues at the instance of any person interested in the estate, and it should be brought after three months from the date of the death of the deceased (rule 22(3) of the Probate and Administration Rules).

 

11.6 Grant of Probate

A grant of probate is made, under section 53(a), in respect of the estate of the testate where it is proved that the deceased had left a valid will, whether oral or written. The grant should be in respect of all the property to which the will provides.  It is usually made to or obtained by the executor or executors appointed by the will.  Where the will of the deceased does not effectively dispose of all the property, he will be deemed to have died partially intestate and a grant of probate will be made in respect of the property to which the will provides. 

 

One effect of a grant of probate is proof of the terms and the proper execution of the will. The other effect is to confirm the executor’s authority to act. It merely confirms the executor’s authority since the executor actually derives his authority from the will itself. Theoretically, the executor can administer the estate of the deceased before obtaining a grant. They can collect in assets and distribute the estate, sue and be sued, and exercise any of the administrative powers conferred upon them by the will or by statute before the grant of probate is obtained. In practice, however, they need a grant of probate as evidence of their authority to act to enable them discharge their duties as such effectively.

 

In Kothari vs. Qureshi and anotherRudd J stated that it is elementary law that an executor’s title dates from the death of the deceased and springs from the will and not from the grant of probate. An executor’s acts before probate are therefore valid in themselves and have effect by virtue of the will, and 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. The executor may commence suit before grant of probate and can carry on the proceedings without a grant as far as is possible until he has to prove his title, when he must then obtain the grant of probate to evidence his title. An executor can before grant commence action, release a debt and generally act as the representative of the deceased until he is required to prove his title as such. An executor can be sued before probate is granted if has not renounced probate and if he has intermeddled in the estate he cannot renounce.

 

This position was reiterated in Otieno vs.  Ougo and anotherwhere it was stated that under section 80(1) of the Law of Succession Act a grant of probate establishes the will as from the date of death, and renders valid all intermediate acts of the executor or executors to whom the grant is made and which are consistent with their duties as such. The executor may perform most of the acts pertaining to his office before probate, including filing suit, because he derives title from the will and the property of the deceased vests in him from the moment of the testator’s death.

Where a will appoints more than one executor, probate may be granted to them all simultaneously, or at different times (section 60 Law of Succession Act). They do not all have to take out a grant of probate. Any executor who decides not to take out a grant has to renounce their right to probate. The executors who do not renounce probate or apply for grant may later on apply to be joined by endorsement to the grant (rule 19(1) of the Probate and Administration Rules).Where one of two or more executors is a minor, probate may be granted by the court to the other executor or executors not under disability, with power reserved of making the like grant to the minor on his attaining majority age (rule 33 of the Probate and Administration Rules).  

The doctrine of relation back applies to grants of probate. According to Kasango J in LalitabenKantilal Shah vs. Southern Credit Banking Corporation Ltdunder section 80(1) of the Law of Succession Act, once a grant is issued to a party all the intermediate acts that the party will have undertaken without the grant of probate will be validated. This is so because 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.

 

11.7 Grant of Letters of Administration with Will Annexed

According to section 53(a) (ii), a grant of letters of administration with the will annexed (grant cum testamentoannexo) is made in circumstances where the deceased dies leaving a valid will, but there is no proving executor. This is usually the case where: the will does not appoint executor(s) or wherethe executor(s) appointed has pre-deceased the testator or the executor (executors) has renounced executorship or the executor(s)  appointed has been cited to take out a grant of probate and has failed to do so.

 

The persons entitled to a grant of letters of administration with the will annexed include in the order of priority: the universal or residuary legatee, a personal representative of a deceased residuary legatee, the person or persons entitled to the administration of the estate of the deceased if he had died intestate, the Public Trustee, any other legatee and creditors.

A grant of letters of administration with the will annexed is conclusive proof as to the terms of the will and that the will has been duly executed. Unlike the grant of probate, which merely confirms the authority of the executor, the grant of administration with the will annexed actually confers authority on the administrator and vests the deceased’s property in him. The explanation for this is that the administrator is so appointed, not by the will, but by the court through the grant of letters of administration.

 

11.8 Grant of Simple Administration 

A grant of simple administration will be made in the vast majority of cases where the deceased dies totally intestate, that is without having made a will or where his will is invalidated. Where intestacy is partial, a grant of simple administration will be made in respect of property that is not dealt with under the deceased’s will, but to any executor or executors who prove the will. However, where the deceased has made a will that makes an effective appointment of an executor, but dies totally intestate as the will fails to dispose effectively of any of their property, a grant of probate will be made.

Section 66 sets out the order of priority of persons entitled to a grant of simple administration. The order follows the order of entitlement to an estate on intestacy (see Part V of the Law of Succession Act), and it requires that a person applying for the grant should have a beneficial interest in the estate.

 

 Under section 66 the order of priority is as follows:

i.the surviving spouse or spouses; 

ii.the children of the intestate; 

iii.the parents of the deceased;

iv.brothers and sisters of the whole blood and the issue of any deceased brother or sister who died before the intestate; 

v.brothers and sisters of the half-blood and the issue of any deceased brother or sister the half-blood who died before the intestate;

vi.And the relatives who are in the nearest degree of consanguinity up to and including the sixth degree.

vii.Public trustees

viii.Creditors

 

In Re KibiegoMadan J held that the widow is the proper person to obtain representation to her husband’s estate, particularly where children are underage as she is the person who would rightfully, properly and honestly safeguard the assets of the estate for herself and her children.

 

There is a general preference for a living person over a personal representative of a deceased person (Rule 26(3) the Probate and Administration Rules), but where a person who is entitled on intestacy dies before taking out a grant, the personal representative of such a person who falls within the categories set out in section 66 of the Law of Succession Act has same right to a grant as the person they represent.  Under the same provision, a person of full age is preferred to the guardian of a minor where persons are entitled in the same degree. If no one in the categories set out in section 66 has a beneficial interest in the estate, then a grant may be issued to the Public Trustee who claims bona vacantia on behalf of the state or to creditors.

 

The effect of a grant of simple administration is conclusive evidence that the deceased died wholly intestate and without leaving a will. Unlike a grant of probate, which merely confirms authority, a grant of simple administration confers authority to act and vests the deceased’s property in the administrator.

An administrator (whether simple or with the will annexed) has no authority in relation to the deceased’s estate prior to the grant. In other words, a grant of letters of administration is of no retrospective effect. Section 80(2) of the Law of Succession Act provides that a grant of letters of administration, with or without the will annexed, takes effect only as from the date of the grant. The doctrine of relation back does not apply to a grant of letters of administration under Kenyan law.

 

In Otieno vs.  Ougo and another the Court of Appeal found that the appellant’s claim of entitlement to bury the remains of her husband on the basis of her being his personal representative failed on the ground that she had not obtained a grant of representation.  She could only assert her right to do if she had a right of act on his behalf, which right stems from grant.

 In Troustik Union International and another vs. Mrs Jane Mbeyu and another it was held that a person, whether a spouse or not, cannot sue on behalf of the intestate estate of the deceased person unless they have a grant of representation at the time of filing suit. The respondents claim for damages under the Law Reform Act (Cap. 26 Laws of Kenya) failed on this ground that is lack of locus standi to sue on behalf of the estate on account of lack of a grant of representation.

In Public Trustee vs. JothamKinoti and another, Khamoni J stated that a grant of letters of administration is the source of the administrator’s authority to administer the estate of the deceased. The authority conferred by the grant only covers the property disclosed in the cause; it does not extend to assets which are not set out in the succession cause. A grant does not therefore give the grantee authority to recover property sold by the family before the administrator’s appointment and which is not included in the petition. 

 

11.9 Grants to the Public Trustee

Grants of representation may be made to the Public Trustee in a variety of circumstances. These are set out in section 6(2) of the Public Trustee Act. They include situations where: the deceased died intestate and no one has taken out probate or representation (section 46 of the Law of Succession Act) or the beneficiaries or dependants are unable to agree on who should take out representation; the deceased has died testate, but has omitted to appoint an executor; the persons named as executors in the will are dead or have renounced probate or unwilling to act; probate of the will of the deceased or letters of administration with the will annexed to the deceased’s estate has not been obtained within six months from the date of the death of the deceased; the deceased has appointed the Public Trustee as an executor; and the estate of the deceased has wholly or partially been left unadministered and a grant of representation has been made, but the personal representatives are either dead or unwilling to complete the administration of the estate.

 

11.10 Limited Grants

A limited grant is a grant that does not give or confirm authority to the personal representative to act with respect to the whole estate in all respects until the administration is completed. It may be described as a restricted grant. Section 54 allows the court to limit a grant of representation that it has jurisdiction to make. A grant may be limited as tospecial purpose, orproperty, ortime, or it may be one of the variousspecial types. The various classes of limited grants are set out in the 5^th Schedule to the Law of Succession Act.

 

(a)  Limited as to purpose

Such limited grants are provided for under paragraphs 11 and 12 of the 5^th Schedule. There are several types of grant that are each limited as to purpose in different ways.

i.       grant ad colligenda bona de functi

It is provided for under section 67 of the Law of Succession Act, and rules36 and 37 of the Probate and Administration Rules. It was stated by the Court of Appeal in Morjaria vs. Abdalla(1984) KLR 490 (Hancox JA, Chesoni and Nyarangi Ag. JJA) that a grant ad colligenda bona is normally made where the assets of the estate are of perishable or precarious nature and which need quick attention. The grant ad colligenda bona is intended to give the administrator power only to collect and preserve the grant estate, pending the making of a full grant, according to Mwera J in In the Matter of Dr John MuiaKalii (deceased) Mks HCSC No. 81 of 1995.It is made where some urgent action is needed in relation to the assets of the estate and there may be delay in obtaining grant.

 

The appointment of a person as an administrator ad colligenda bona in respect of the estate of a deceased person does not include the right to take the place of the deceased for the purpose of instituting an action or suit, since there is express provision for that purpose in the Law of Succession Act ((Morjaria vs. Abdalla(1984) KLR 490 (Hancox JA, Chesoni and Nyarangi Ag. JJA).

 

According to Ringera J in In the Estate of Kahawa Sukari Limited Milimani HCWC No. 23 of 2002, a grant of letters of administration ad colligenda bona cannot confer the grantee the status of a personal representative of a deceased person. Section 2 of the Law of Succession Act defines a personal representative as the executor or administrator of a deceased person. Administrator is defined to mean a person to whom a grant of letters of administration has been made under the Act. Consequently, a grant of letters can only be a full grant since a limited grant ad colligenda bona cannot confer on the grantee the right to administer the estate of the deceased person. 

 

The facts of the case were that following the demise of the deceased, who was a member of the board of Kahawa Sukari Limited, his family requested the company to allow the petitioner to join the board of the company as a representative of the deceased. It was advised that it was necessary  for  the petitioner or other member of the family to obtain letters of administration to the estate of the deceased. The petitioner applied for and obtained a grant of administration ad colligenda bona. He thereafter notified the company of the fact. Despite the notification he was not admitted to the board or made a signatory of the company’s accounts or otherwise made a representative of the deceased in the  company. It was in the backdrop of the foregoing that the petitioner moved the court by way of a petition under section 211 of the Companies Act (Cap. 486 Laws of Kenya). The main issue which fell for determination by the court was whether or not the petitioner had the locus standito file the petition and seek the orders prayed for in the petition. The court found that in the first place, the grant obtained by the petitioner was invalid because it did not indicate the purpose for which it was obtained. The grant issued to the petitioner was expressed to be a limited grant of letters of administration ad colligenda bona and was to last for a period of three months. The usual words expressing the purpose for which it was issued, that is ‘collecting and getting in and receiving the estate and doing such things as may be necessary for the preservation of the same and until further representation is granted’ were cancelled out. The cancellation of those had the effect of rendering the grant meaningless. It ceased to be a grant ad colligenda bona for collecting and getting in the estate. The grant lost its character through the cancellation of those words. In the second place, even if the grant was a valid one 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. One,

because it could not confer upon the grantee the status of a personal representative. Two, even the holder of a full grant, who is truly the personal representative of the deceased, cannot be treated as a member of the company unless he satisfies the requirements of section 28 of the Companies Act.

 

(ii) Grantad litem

It is granted to enable someone represent the estate where the estate has been sued or intends to sue (paragraph 15 of the 5^th Schedule to the Law of Succession Act).   It is sought where it is necessary to make an estate a party to a suit(Re Succession: Limited Grant (2000) 2 EA 495  (Ang’awa J)). It is usually taken out where a third party wishes to make the estate a defendant in an action and no person entitled to a grant will take one out. 

 

(iii) Grant pendente lite

It is granted under paragraphs 10 and 14 of the 5^th Schedule, where there is a pending suit, particularly a dispute as to the validity of the will or right to administer.  It is limited to the duration of the pendency of the suit. It allows the administrator appointed by the court to administer the estate until the action is completed as stated in In the Matter of the Estate of Onesmus Mwilu Mbuvi (deceased) Machakos HCP&A No. 111 of 1996 by Mwera J. It is limited in purpose in that it does not give authority to the administrator to distribute the estate and it is also limited in time in, to the completion of the pending proceedings.

 

(iv) Grant de bonis non administratis

This is granted under paragraph 20 of the 5^th Schedule, where the personal representative has not completed the administration of the estate  either because he has died or for some other reason part of the estate has been left unadministered.  A grant limited to the purpose of administering the unadministered part may be issued. In In the Matter of the Estate of Hannah Njoroge Njuki (deceased) Nairobi HCSC No. 453 of 1997 (Ang’awa J), the grant of letters had initially been made to the deceased’s husband who subsequently died before completing the administration of the estate. Her son brought an application seeking the removal of the deceased administrator’s name and its substitution with his. The court directed that where an administrator dies and the estate is not fully administered, any of the beneficiaries entitled to the estate might file for letters de bonisnon.A similar holding had been made earlier by Pelly Murphy J in Maamun bin Rashid bin Salim El-Rumhy vs. Haider Mohamed bin Rashid El-Basamy(1963) EA 438, where it was stated that any of the heirs have a right to a grant of administration de bonis non after the death of the personal representative. 

 

The application before Khamoni J in In the Matter of the Estate of Mwangi Mugwe alias EliezaNgware (deceased) and In the Matter of the Estate of Mary WairimuNgware (deceased) Nairobi HCSC No. 2018 of 2001, should have been resolved by asking the applicant to apply for administration de bonis non. The applicant brought a summons for the substitution of an administrator who died after the making of the grant, but before its confirmation. The court directed that there is no provision for the substitution of a deceased administrator under the Law of Succession Act, and counselled the applicant to apply for the revocation of the grant on the grounds that it had become inoperative and useless.

 

In making a grant de bonisnonthecourt should be guided by same rules as applying to original grants.

 

 (v) Cessate grant

This is made under paragraph 21 of the 5^th Schedule, when the original grant was limited as to time and that period has now expired, provided that the administration of the estate is still incomplete.

 

(vi) Temporary grant by a resident magistrate under section 49 

A resident magistrate grants this in cases of apparent urgency and it is limited to collection of assets situated within his jurisdiction and payment of debts. It differs from the grant ad colligenda bona in that it is limited to collection of assets and payment of the debts of the estate, and not collection and preservation of the assets. Its life is limited to six months.

 

(b)  Limited as to property 

This type of limited grant is made under paragraph 13 of the 5^th Schedule.  It may be granted where a person dies leaving property of which he was the sole or surviving trustee or in which he had no beneficial interest on his own account and leaves no general representative or one who is unable or unwilling to act as such, letters of administration limited to that property may be granted to the person beneficially interested in the property or to another on his behalf.

 

A grant limited to property may be also be made under rule 28 of the Probate and Administration Rules, where the whole estate of a deceased person, whose domicile is outside Kenya, comprises of immovable property situated in Kenya.

 

It may also be granted where a testator appoints executors only of certain assets in a specified area.  Such executors obtain probate limited to that property. It is usually made in cases where the estate includes settled land or because the testator has chosen to appoint executors who are experts in a particular type of property to deal with part of the estate.

 

(c)  Limited as to time

There are several such grants and they are provided for under paragraphs 1 to 10 of the 5^th Schedule and section 49 of the Act. 

 

(i) grant durante aetate minore

This is taken out under paragraph 7 and 8 of the 5^th Schedule, where either the executors or the administrators are minors and as such they are not entitled to a grant in their own right. A will may limit the time within which the representative is to act as executor e.g. during the minority of the testator’s children, a grant may be made in the circumstances limited to the duration of the minority. The grant automatically expires when the minor reaches 18 years old, unless some other time is specified by the court.

 

(ii) Grant durante absentia

Where the personal representative is outside the jurisdiction, the court may, under paragraphs 4, 5 and 6 of the 5^th Schedule, grant representation to another person limited to the duration of the absence of the personal representative. In Re Mauchauffee(1969) EA 424 (Harris J) it was directed that a grant be made to a petitioner without citing her sister, who was out of the country, but limited until the sister herself applied for and obtained a grant.

 

(iii) Grant where will is unavailable

Where the deceased had made a will, but the same is lost, misplaced or otherwise unavailable either because the will is outside jurisdiction or held in a foreign court, a limited grant may be given under paragraphs 1, 2 and 3 of the 5^th Schedule, until the original or more authentic copy is found or availed.

 

(iv) Administration for use and benefit of a person of unsound mind

Where a sole executor or sole universal or residuary legatee or a person who would be solely entitled to the estate of the intestate according to the rules of intestacy is mentally incapacitated, a grant of letters of administration will be made, under paragraph 9 of the 5^th Schedule,  to the person to whom the care of his estate has been committed by a competent authority or if there is no such person to any other person as the court thinks fit for the use and benefit of the person of unsound mind, with power reserved for the incapacitated executor or administrator to take out a grant when their disability ceases.

 

(v) Temporary grant limited to collection of assets and payment of debts

This is provided for under section 49 of the Law of Succession Act and rule 37 of the Probate and Administration Rules. It is related to the grant ad colligenda bona, the only difference between them being that the limited grant under section 49 goes beyond collection of assets to cover payment of debts. It is made pending the making of a full grant, and its life is six years.

 

(vi) Special limited grant Legal Notice No. 39 of 2002

This type of limited grant is provided for under the Probate and Administration (Amendment of the 5^th Schedule) Rules through Legal Notice No. 39 of 2002. The limited grant is made in special circumstances where the urgency of the matter is so great that it would not be possible for the court to make a full grant in sufficient time to meet the necessities of the estate. It is not clear in what respects the special limited grant differs from a grant ad colligenda bonaor the temporary limited grant made under section 49(3) of the Laws of Succession Act. 

             

11.11 Foreign Grants 

A grant of representation obtained in Kenya only enables the personal representatives to deal with the deceased’s property that is in Kenya. If the deceased has assets outside Kenya, it is necessary to obtain in that country a separate grant that fulfils the probate requirements of that country. However, whether grants issued in Kenya can deal with property located in foreign jurisdictions depends largely on the law in those jurisdictions.   

 

The Law of Succession Act allows, to a limited extent, the recognition of foreign grants in Kenya. Section 4(1)(a) rules out the recognition of foreign grants with relation to real property. The provision states that succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, the domicile of the deceased at the time of his death notwithstanding. Section 4(1)(b) provides that succession to the movable property of a deceased person, wherever situated, shall be regulated by the law of the country of the domicile of the person at the time of his death.This would mean that foreign grants are recognised in Kenya to the extent only of movable property. 

 

Under section 77(1) of the Law of Succession Act, foreign grants have to be deposited with the High Court (the principal registry and the Mombasa registry only) and sealed with the seal of that court, whereafter the same have the same effect and operation in Kenya as if granted and confirmed by the High Court of Kenya. However, the High Court can only reseal grants issued by courts or the Minister may designate other relevant authorities of such countries as by a notice in the official gazette. In In Re Estate of Naftali (deceased) (2002) 2 KLR 684 (Waki J) it was remarked obiter that the purpose of resealing foreign grants is to eliminate frauds and conflicts.

 

As a rule, no suit can be brought against an administrator in his official capacity, except in the courts of the country from which he derives authority to act according to Pickering J in National Bank of India Ltd vs. The Administrator General of Zanzibar (1924-1926) 10 KLR. In the Ugandan case of Keshavlal Bhoja vs. Tejalal Bhoja(1967) EA 217 (Fuad J) a Ugandan resident sued another as the administrator of their deceased father’s estate. The defendant had obtained the grant of letters of administration from a Kenyan court. It was held that the suit was not maintainable in Uganda.

             

11.12 Administration of an Estate without Grant

For fairly small estates a grant of representation is not mandatory, the estate may be administered without it. In respect of estates not exceeding Kshs. 20,000.00 in gross value, section 8(1) of the Public Trustee Act empowers the Public Trustee, where the deceased has died intestate or died testate leaving a will in circumstances which would require the Public Trustee to apply for a grant under section 6 of the Public Trustee Act, to administer such estates without reference to any court. Where the gross value of the estate does not exceed Kshs. 4,000.00, under section 8(2) of the Public Trustee Act, the Public Trustee may issue a certificate of summary administration on the application of any person to whom grant may be made under the provisions of the Law of Succession Act.

 

CHAPTER TWELVE

12. PROBATE JURISDICTION

12.1 INTRODUCTION

 

A grant of representation can normally be made in the courts of Kenya if the deceased died in Kenya, or the deceased appointed an executor in Kenya over personalty situated in Kenya. Probate business is divided into non-contentious and contentious probate. Non-contentious probate is often referred to as probate in common form, while contentious probate is known as probate in solemn form.  

 

The Law of Succession Act gives both original and appellate jurisdiction to the courts over probate matters. The Act confers original jurisdiction to the High Court, resident magistrate’s courts and kadhis’s courts. Whereas the Act does expressly provide appellate jurisdiction to the High Court, it is silent on the appellate jurisdiction of the Court of Appeal.

 

 

12.2 ORIGINAL JURISDICTION

(a) High Court

Under section 47, the High Court is vested with jurisdiction over probate and administration matters, specifically to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders, as it may consider expedient. This provision is reinforced by section 48 of the Law of Succession Act, which provides that where there is a High Court, the resident magistrates shall have not jurisdiction, but the High Court shall have exclusive jurisdiction to make all grants of representation and determine all disputes under the Law of Succession Act. 

 

According to Hayanga J in In the Matter of the Estate of Mohamed Saleh Said Sherman also known as Mohamed Swaleh Sherman (deceased) Mombasa HCSC No. 145 of 1998, the spirit of the Law of Succession Act, through section 47, gives wide discretion to the High Court in dealing with testamentary and ‘estate administrative issues’.  Nambuye J in Re Katumo and another (2003) 2 EA 509 stated that section 47 vests the court with power ‘to hear and determine all manner and nature of applications’. In Francis Kamau Mbugua and another vs. James Kinyanjui Mbugua Nairobi HCCC No. 111 of 2004 (OS), Nyamu J stated that section 47 of the Act empowered the probate court to give all necessary orders and it gives the court an unlimited jurisdiction to deal with any dispute under the Act. According to Koome J in In the Matter of the Estate of Henry Ng’ang’a (deceased) Nairobi HCSC No. 1330 of 1999, section 47 is a broad provision under which the court can make any order. Under this provision, the court directed a land agent who had been collecting rent on behalf of the estate to furnish to the court a full and accurate account of the rents so far recovered. It was further ordered that the estate be referred to a locational chief for arbitration on  the issue of distribution. In In the Matter of the Estate of James Ngengi Muigai (deceased) Nairobi HCSC No. 523 of 1996, Koome J invoked section 47 to apply section 26 of the Act while handling objection proceedings although there was no application before her for reasonable provision.

 

This provision is not as broad as a section of the High Court has interpreted it to be. The section provides that: The High Court shall have jurisdiction to entertain any application and determine any disputes under this Act and to pronounce such decrees and make such orders therein as may be expedient.

 

It only vests the High Court with jurisdiction to entertain such applications and disputes as may be allowed in the Act and the supporting subsidiary legislation. The Court of Appeal has stated in Wairimu Gathute vs. Theuri Wambugu and another Nyeri CACA No. 33 of 1991 (Gicheru, Kwach and Muli JJA) that the High Court exercising its power under sections 47 or 48 of the Act should not delegate its jurisdiction to arbitrators, since the law gives it exclusive jurisdiction. Delegation amounts to an abdication of statutory responsibility. Later decisions of the Court of Appeal, however, depart from this position. In Thumbi Weru and others vs. John Wachira Mwaniki Nyeri CACA No. 191 of 1998 (Kwach, Akiwumi and Shah JJA) and Macharia vs. Wanjohi and another (2004) 1EA 111 (Omolo JA, Onyango Otieno and Ringera Ag. J), the Court of Appeal approved the application of  Order XLV rule 1 of the Civil Procedure Rules by the High Court where certain  matters relating to the estate of the deceased were referred to arbitration by the local provincial administration.

 

It, however, would appear that the High Court has generally been referring certain matters for arbitration by the provincial administration. In In the Matter of the Estate of Henry Ng’ang’a (deceased) Nairobi HCSC No. 1330 of 1999, for example, Koome J referred a dispute on distribution to arbitration by a locational chief. In In the Matter of the Estate of Elijah Ndambuki Kituku (deceased) Machakos HCP&A No. 23 of 1993 (Mwera J) two sets of clan arbitrators were put in place to arbitrate on the distribution of the estate. Mwera J in In the Matter of the Estate of Mwololo Nguli (deceased) Machakos HCP&A No. 288 of 1994 adopted a distribution proposed by a clan following an order of the court, which distribution was in accord with Kamba customary law. In In the Matter of the Estate of Mathu Ngwaro alias Nikola (deceased) Nairobi HCSC No. 45 of 1994 (Waweru J) the question of the respective relationships between two women, claiming to be the wives of the deceased, and the deceased was remitted for consideration by a panel of four independent elders to be appointed by the local assistant chief.  

 

Another section of the High Court treats section 47 as not really giving a wide or broad jurisdiction. In Re Katumo and another (2003) 2 EA 509, Nambuye J stated that jurisdiction under section 47 of the Act has to be exercised within the provisions of the Act. Where there is no particular provision covering a particular aspect of the dispute there is no jurisdiction. In the instant case the application before the court was brought under sections 45 and 47 of the Act for an order that a particular asset be taken over by the court from the persons having possession of it and be put it in proper custody; alternatively the asset be handed over to the applicant- a creditor. The court declined to grant the orders for lack of provision covering the situation. In the court’s opinion section 47 could not be employed to grant the orders sought.

 

(b) Resident Magistrates

For judicial stations where there is no High Court, the Chief Justice may appoint a resident magistrate to represent the High Court (section 47 of the Law of Succession Act). The resident magistrate so appointed exercises the same powers as the High Court, including the power, in cases of apparent urgency, to make grants limited to the collection of assets and payment of debts with respect to property within his jurisdiction.

 

The jurisdiction of the resident magistrate is, however, limited with respect to some matters (sections 48 and 49 of the Law of Succession Act). The resident magistrate cannot entertain applications to revoke a grant and cannot make orders regarding estates whose gross value exceeds Kshs. 100 000.00. The resident magistrates  have no jurisdiction in any place where there is a High Court, that is in Nairobi, Mombasa, Nakuru, Nyeri, Machakos, Bungoma, Kakamega, Eldoret, Kisumu, Kisii, Meru, Embu and Malindi (Re Succession – Limited Grant (2000) 2 EA 495 (Ang’awa J)). 

 

It was implied by the Court of Appeal in Kenya Bus Services Ltd vs. Kawira (2003) 2 EA 519 (Omolo, Tunoi and Githinji JJA), that a grant made by a resident magistrate in excess of the court’s pecuniary jurisdiction would nevertheless be valid. This contrasts with the position taken by Ondeyo J in In the Matter of the Estate of Karanja Gikonyo Mwaniki (deceased) Nakuru HC Misc. 245 of 1998, where it was held that the jurisdiction of a resident magistrate is limited, by virtue of section 48 of the Law of Succession Act, to an estate whose value does not exceed Kshs. 100 000.00. It was further held that a grant made by such a resident magistrate in respect of an estate whose value exceeded Kshs. 100 000.00 was a nullity.

The decision by Ang’awa J in In the Matter of the Estate of Kuria Wairagu (deceased) Nairobi HCSC No. 905 of 2002 should be taken with circumspection. The court held that resident magistrates appointed under section 48 represent the High Court and therefore they have the same jurisdiction as the High Court so long as there is no High Court in that station. Section 48 clearly says that the resident magistrate has jurisdiction over estates whose gross value does not exceed Kshs. 100 000.00. 

(c) Kadhi’s Court

The Law of Succession Act confers jurisdiction on Kadhi’s courts regarding administration of the estate of a deceased Muslim. Under sections 2(3) and 48(2) of the Law of Succession Act the substantive provisions of the Act do not apply to the estate of deceased Muslim Islamic law applies instead. However, section 2(4) of the Act applies Part VII of the Act, which is relates  to the administration of estates, to the estate of a deceased Muslim and appears to grant to the kadhi the same jurisdiction as the resident magistrate. Section 50A empowers the Chief Justice, in consultation with the Chief Kadhi, to make rules of court for the carrying to effect, with relation to the estate of a deceased Muslim, of sections 47, 48, 49 and 50 of the Act.

 

12.3 Appellate Jurisdiction

(a) High Court

An appeal lies, by virtue of section 50(1) of the Law of Succession Act, from the decision of the resident magistrate to the High Court. The decision of the High Court on the appeal is final (In the Matter of Habakuk Ochieng Adede (deceased) Nairobi HCSC No. 721 of 2000 (Ang’awa J). Section 50(2) of the Act provides similarly for appeals from the decision of a kadhi, but the decision of the High Court on the appeal from the kadhi’s decision is not final as there is provision for a further appeal to the Court of Appeal in respect of any point of Islamic law. In such case an appeal to the Court of Appeal should be with the prior leave of the High Court (In the Matter of Habakuk Ochieng Adede (deceased) Nairobi HCSC No. 721 of 2000 (Ang’awa J).

 

(b) Court of Appeal

The Law of Succession Act does not provide for an appeal from the decision of the High Court in exercise of its original jurisdiction to the Court of Appeal. The Court of Appeal, however, has held in Makhangu vs. Kibwana (1995-1998) 1 EA 175 (Cockar CJ, Kwach and Shah JJA), that an appeal does lie to the Court of Appeal from a decision of the High Court in probate matters. According to the court, under section 47 of the Law of Succession Act, the High Court has jurisdiction on hearing any application to pronounce decrees or orders. Any order or decree made under this section is appealable under section 66 of the Civil Procedure Act, either as a matter of right if it fell within the ambit of section 75 of the Civil Procedure Act or by leave of the court if it did not. This decision was based on the Court of Appeal’s earlier decision in Commissioner of Income Tax vs. Ramesh K. Menon (1982-1988) 1 KAR 695 (Madan and Hancox JJA, with Platt Ag. JA dissenting). The decision of the Court of Appeal in Makhangu vs. Kibwana (1995-1998) 1 EA 175 (Cockar CJ, Kwach and Shah JJA) was followed with approval by the Court of Appeal in Kaboi vs. Kaboi and others (2003) 2 EA 472  (Keiwua JA) and with reservation  by the High Court in In the Matter of the Estate of Hezron Bernard Wamunga (deceased) Nairobi HCSC No. 1813 of 1999 (Koome J).

 

The High Court holds a position, which is in conflict with the Court of Appeal on the issue of appeals from the High Court. Makhangu vs. Kibwana (1995-1998) 1 EA 175 (Cockar CJ, Kwach and Shah JJA) was decided in 1996, but the High Court has been rather reluctant to follow it. The High Court holds that the Law of Succession Act is a comprehensive code which depends on the provisions of the Civil Procedure Act to the extent the Civil Procedure Act is allowed by the Law of Succession Act. The Law of Succession Act does not provide for an appeal from the High Court to the Court of Appeal, and it does not say that the provisions of the Civil Procedure Act on appeals apply. Koome J apparently followed Makhangu vs. Kibwana reluctantly in In the Matter of the Estate of Hezron Bernard Wamunga (deceased) Nairobi HCSC No. 1813 of 1999. She said in the ruling that the Law of Succession Act is a specialised piece of legislation complete with its own rules of procedure, and that the Act regulates all the proceedings and provides for procedures to be followed. 

 

The other High Court decisions, although made after 1996, do not advert to Makhangu vs. Kibwana at all. In In the Matter of Habakuk Ochieng Adede (deceased) Nairobi HCSC No. 721 of 2000, Ang’awa J stated that there was no right of appeal (under the Law of Succession Act) to the Court of Appeal from the decision of the High Court. The court noted that the practice in Kenya is that  parties who wish to appeal to the Court of Appeal go round the issue of no right of appeal by first seeking a review of the High Court’s decision under order XLIV of the Civil Procedure Rules (which is one of the provisions of the Civil Procedure Rules allowed under the Law of Succession Act). Thereafter the party may appeal the decision of the High Court on review to the Court of Appeal. Ang’awa J reiterated the position in In the Matter of the Estate of Mariko Marumbi Kiuru (deceased) Nairobi HCSC No. 2011 of 1997, where it was stated that there is no right of appeal to the Court of Appeal from a decision of the High Court: what the parties usually do is to apply for a review whose determination gives them a technical right of appeal to the Court of Appeal.

 

Waweru J in In the Matter of the Estate of James Gitumbi Kagwiri (deceased) Nairobi HCSC No. 782 of 1999, while declining to grant leave to appeal said:

It is trite law that a right of appeal must be granted by statute. Where there is no direct right of appeal granted by statute, the power of court to grant leave to appeal must be provided for by statute. . .The orders sought to be appealed against were made in proceedings under the Law of Succession Act, Cap 160. I see nothing in this Act which empowers me to grant the leave sought, 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 by statute. 

 

Hayanga J in In the Matter of the Estate of Mohamed Saleh Said Sherman also known as Mohamed Swaleh Sherman (deceased) Mombasa HCSC No. 145 of 1998, while similarly refusing to grant leave to appeal said:

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 to 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. 

 

In In the Matter of the Estate of Mary Gachuru Kabogo (deceased) Nairobi HCSC No. 2830 of 2001, Ang’awa J was of the view that  during the confirmation process disputes relating to properties should be heard under Order XXXVI. This would allow the bringing of an appeal against the order, if made by the High Court, to the Court of Appeal since the Law of Succession Act does not provide for an appeal from the decision of the High Court in exercise of its original jurisdiction to the Court of Appeal. 

 

The position taken by the High Court is akin that stated by Ringera J in Welamondi vs. The Chairman, Electoral Commission of Kenya (2002) 1 KLR 486 and Ndete vs. Chairman Land Disputes Tribunal and another (2002) 1 KLR 392 regarding judicial review proceedings. According to Ringera J, judicial review proceedings are sue generis, created by their own independent legislation which confers special jurisdiction upon the courts with respect to those proceedings. Being a special procedure sets it apart from ordinary civil proceedings, and the provisions of the Civil Procedure Act and Rules cannot be invoked. Similarly, the Law of Succession Act creates a special procedure, recourse should not be had to the Civil Procedure Act unless there is express provision in the Act for it.

 

The administration of a deceased person’s estate by an administrator is not an execution of a court decree or order. In the circumstances, according to Khamoni J in the Matter of the Estate of Joseph Mwinga Mwaganu (deceased) Nairobi HCSCS No. 1814 of 1996 it is not possible for stay of execution pending appeal to be granted under Order XLI Rule 4 of the Civil Procedure Rules. 

 

12.4 Inherent Jurisdiction

The High Court, in a number of decisions, has held that section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules, gives the High Court 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. According to Hayanga J in In the Estate of Mohamed Saleh Said Sherman (deceased) Mombasa HCSC No. 145 of 1998 section 47 of the Act gives the court inherent jurisdictional powers to make such orders as are expedient. In that matter the court invoked section 47 to order monthly advancements to the widow and daughters of the deceased. In In the Matter of the Estate of Hemed Abdalla Kaniki (deceased) Nairobi HCSC No. 1831 of 1996, Kamau J invoked section 47 and rule 73 to hold that an application was properly on record even though it had serious procedural defects. In In the Matter of the Matter of James Ngengi Muigai (deceased) Nairobi HCSC No. 523 of 1996, Koome J invoked section 47 and rule 73 to apply section 26 of the Act although she was not handling an application under section 26, but objection proceedings. In In the Matter of the Estate of Joram Waweru Mogondu (deceased) Nairobi HCSC No. 2721 of 2002 Koome J cited section 47 and rule 73 while directing personal representatives to produce to the court a full inventory and an account of their dealings with the estate. In In the Matter of the Estate of Mathu Ngwaro alias Nikola (deceased) Nairobi HCSC No. 45 of 1994 (Waweru J) a reference to elders to decide on the nature of the relationship between the deceased and two women who were claiming to be his wives was made under the inherent powers..

 

The Court of Appeal in Morris Mutuli and another vs. Alice Mutuli and others Kisumu CACA No. 236 of 2000 (Kwach, Omolo and Tunoi JJA) held that the High Court was entitled and had power to make orders, in exercise of its inherent jurisdiction and in accord with rule 73 of the Probate and Administration Rules, to restrict the filing of applications by parties without the consent of the court, where the parties had previously filed numerous applications in the cause that had the effect of delaying the proper administration of the estate causing hardship to the beneficiaries. In In the Estate of Benjamin Gicheha (deceased) Nairobi HCSC No. 692 of 1994, Koome J invoked rule 73 to dismiss an application for want of prosecution. In In the Matter of Peter Gicheru Kagotho (deceased) Nairobi HCSC No. 376 of 1983, Githinji J invoked the inherent powers of the court to order the rectification of a register under section 143 of the Registered Land Act. 

 

However, opinion is divided on the circumstances at which the inherent powers of the court may be invoked. In In Re Estate of Kilungu (deceased) (2002) 2 KLR 136, Khamoni J, while saying that rule73 of the Probate and Administration Rules saves the court’s inherent powers in the same way as section 3A Civil Procedure Act, cautioned that rule 73 cannot be used to do what the Law of Succession Act does not allow the court to do. He pointed out that rule 73, just like section 3A of the Civil Procedure Act, has to be used to do what is lawful only. In the context of the case rule 73 could not be invoked to apply Order XXXIX of the Civil Procedure Rules in probate matters. In another matter, Khamoni J in In the Matter of the Estate of Erastus Njoroge Gitau (deceased) Nairobi HCSC No. 1930 of 1997 pointed out that rule 73 should only be used in deserving situations where no specific provisions exist to deal with the issues in questions. In that case the applicants wanted the court to authorise the Registrar of the High Court or his deputy to sign to sign certain documents on behalf of the personal representative because the latter had neglected or refused to sign the documents. The court held that it would not be lawful for the court in exercising its inherent power, reserved under rule 73, to overlook the substantive provisions of the Act covering the situation. Ang’awa J in In the Matter of the Estate of Late Simon Timaiyo Mokosio also known as Simon Nemokoosio (deceased) Nairobi HCSC No. 1063 of 1987 stated that it is not necessary to invoke rule 73 where there are express provisions in the Act and the Rules covering the situation. In the instant case the court was dealing with rectification of grants, where it was held that the appropriate application ought to be brought under the relevant provisions in the Act and the Rules, and not rule 73 of the Probate and Administration Rules. Contrast this with the invocation of rule 73 by Rimita J in Amos Kimondo Ngotho vs. Margaret Wanjiku Kimondo Nakuru HCSC No. 287 of 1998 to revoke a grant on the court’s own motion. According to Koome J in In the Matter of the Estate of Hannah Nyangahu Mwenja (deceased) Nairobi HCP&A No. 901 of 1996, the inherent power of the court can be used by the court to give effect to its own orders, to give orders as may be expedient and to prevent the abuse of the process.

 

12.5 Supervisory Jurisdiction

The High Court exercises supervisory jurisdiction over the resident magistrate in succession matters (section 49 of the Law of Succession Act). The resident magistrate may, with the consent or by the direction of the High Court, transfer the administration of an estate to any other resident magistrate with jurisdiction. The High Court, in cases where the deceased’s last known place of residence is outside Kenya, determines which resident magistrate should have jurisdiction over the estate. 

Section 44 of the Law of Succession Act vests the High Court with jurisdiction over intestate estates relating to property mentioned in section 32 where the minister has exempted such property from the intestacy provisions. The High Court exercises jurisdiction in respect of the estate of such a deceased intestate even where the value of the estate does not exceed Kshs. 100, 000.00. Dismissal of matters where applicant takes too long before prosecuting them (In the Matter of the Estate of Benjamin Gicheha (deceased) Nairobi HCSC No. 692 of 1994 (Koome J)).

CHAPTER THIRTEEN

13 NON-CONTENTIOUS PROBATE

13.1 INTRODUCTION

Both the High Court and the resident magistrates deal with non-contentious business. Probate will be granted in common form in non-contentious proceedings where there is no dispute as to the documents that ought to be admitted to probate or over entitlement to a grant. Theoretically, non-contentious probate is a judicial act, but in practice it is granted without a formal hearing or court appearance.

 

A person wishing to apply for a grant must, personally or through an advocate, lodge certain papers with the principal registry or a district registry or a resident magistrate’s registry. The registrar or resident magistrate and his staff consider the papers. Where they are satisfied that the documents are in order, a grant would be signed by the relevant judicial officer and sealed with the seal of the court. Sometimes non-contentious probate may involve a hearing before a judge or resident magistrate on some minor issue. Only if the issue develops into a dispute will the proceedings become contentious.

 

13.2 Applying for a Grant

The procedure for applying for grant of representation is set out in section 51 of the Law of Succession Act and rule 7 through to rule 14 of the Probate and Administration Rules. The petition for grant should contain the full particulars of the deceased, namely: names, date and place of death, last known place of residence, relationship of the applicant with the deceased, whether or not the deceased left a valid will, and a full inventory of all the assets and liabilities of the deceased. Where the deceased died intestate, whether total or partial, the following particulars should be given: names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any pre-deceased child of the deceased (Willingstone Muchigi Kimari vs. Rahab Wanjiru Mugo Nairobi CACA No. 168 of 1990 (Gachuhi, Muli and Akiwumi JJA) (In the Matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias Mwaura Mbura (deceased) Nairobi HCSC No. 935 of 2003 (Kamau J).

Where it is alleged that the deceased died testate and left a valid written will, the original will should be annexed to the petition and the details of the executors given. If it is alleged the original will is lost or destroyed otherwise than by way of revocation or the original will cannot be for whatever reason be produced, then its authenticated copy should be annexed to the petition or, in the alternative, the names or addresses of all persons alleged to be able to prove its contents should be stated in the application. If the will is alleged to be oral, the names and addresses of all persons alleged to be witnesses must be stated in the petition.

 

The application for grant, taking the form of a petition, should be filed in the principal registry or a High Court district registry or in a resident magistrate’s registry (in the case of an estate whose gross does not exceed one hundred shillings). After the filing of the papers, the court may allow any person interested, upon request and payment of the necessary fees, to inspect the will, that is where the grant sought is one of probate of a written will or of letters of administration with the written will annexed.

In In re estate of Ngetich (2003) KLR 84 (Nambuye J) it was stated that there is no provision in the Law of Succession Act for substitution with the proper form where a party uses the wrong statutory form to apply for a grant. In such circumstances rule 14(1) of the Probate and Administration Rules provides for an amendment through the filing of the appropriate statutory forms.  

 

Under rule 7(4) of the Probate and Administration Rules the registrar or resident magistrate is required to cause the insertion in the official gazette, a daily newspaper and to be exhibited conspicuously in the courthouse attached to the registry where the application is made, a notice of the application for the grant inviting objections to be made to that registry within a specified period of not less than thirty days. 

 

13.3. Caveats

A caveat is a notice entered at a probate registry to prevent a grant or representation being made or confirmed without first being given to the person who enters the caveat, known as the caveator (rule 15(1) the Probate and Administration Rules and Raphael Jacob Samuel vs. The Public Trustee and others Nairobi CACA No. 16 of 1980 (Law, Miller and Potter JJA)). The main purpose of a caveat is to enable a person who may be considering opposing a grant to obtain legal advice or evidence on the matter.  

Rule 15(6) requires that where a caveat has been lodged against the making or confirming of a grant and a grant is applied for or confirmation of grant is sought, the registrar should be notified of the same and, under rule 15(8), the registrar should not allow grant to be made or confirmed. A proviso to rule 15(8), however, states that no caveat would prevent the making or confirming of a grant on the day on which the caveat is filed. Under rule 15(9), the registrar should warn the caveatee of the filing of the application for the making or confirmation of grant, and notify him that if he wishes to object to the making or confirmation of the grant he should lodge an objection to the application in accordance with the rules.

In D. D. Doshi vs. Abdulhussein Hassanali Jivanji (1942) 22 EACA 25 (Thacker J), it was stated that any interest in the deceased’s estate however slight, is sufficient to enable a party to lodge a caveat and oppose a testamentary paper or instrument. Where the person who is entitled to file a caveat has been cited it is unnecessary for him to file a caveat, unless he wishes to argue that the person who has the grant is has no right to the grant (Maamun bin Rashid bin Salim El-Rumhy vs. Haider Mohamed bin Rashid El-Basamy (1963) EA 438 (Pelly Murphy J).

 

13.4 Citations

A citation is a document issued by the probate registry whereby the person issuing the document (the citor) calls upon the person cited (the citee) to provide a reason why a particular step should not be taken (rule 21 of the Probate and Administration Rules).  Citations occur in both contentious and non-contentious probate. In non-contentious probate, they serve the purpose of hurrying along the issue of a grant. It was held in the case of Re Mauchauffee (1969) EA 424 (Harris J) that where the estate is insolvent the court may dispense with the citation. It was stated by De Lestang J in  the Estate of Sukhlal s/o Madhulal, deceased (1949) 23(2) KLR 56 that whenever a party is entitled to be cited the citation must be directed to the citor and served upon him personally. 

 

In Maamun bin Rashid bin Salim El-Rumhy vs. Haider Mohamed bin Rashid El-Basamy (1963) EA 438, Pelly Murphy J stated that where a person applies for representation, citations should not be issued to other heirs having equal rights to the grant, except where the court sees it fit to make such an order. The object of non-contentious citations is to call upon a person who has a superior right to a grant to take the grant. 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, the applicant must cite them calling upon them to apply for the grant. If the person cited fails to apply for a grant or renounce his right to it, the grant may be given to the citor.

 

Upon being served with a citation the citee is required to appear by filing the prescribed appearance form and thereafter serving the same on the citor (rule 21(5) of the Probate and Administration Rules and In the Matter of the Estate of Stephen Mwangi Mbugua (deceased) Mombasa HCitCC No.1 of 2003 (Sergon J). 

 

There are three types of citation, namely: a citation to accept or refuse a grant of probate or administration, a citation to take out probate and a citation to propound the will. Citations are  classified into special and general citations. Special citations are addressed to a particular person, while general citations call upon all persons without naming any particular person.

 

(a)  Citation to accept or refuse grant

This is used where a person (whether in intestacy or testate succession) who has an entitlement to a grant prior to that of the citor delays or declines to take a grant, but at the same time fails to renounce his or her right to a grant so as to enable persons with inferior right to take out a grant in his or her place (In the Matter of the Estate of Gitau Chege Kibera (deceased) Nairobi HCSC No. 1463 of 1991 Aluoch J). He or she may be cited to accept or refuse the grant (section 62 of the Law of Succession Act and rule 22(1)(2) of the Probate and Administration Rules). 

 

(b)  Citation to take out probate

This occurs where an executor (as opposed to an administrator) has intermeddled with an estate, and has not taken out a grant. Any person interested in the estate may cite the executor to provide reasons as to why he should not be compelled to take out a grant. The citation should be made at any time after the expiration of three months from the death of the deceased. It should, however, not be issued while proceedings as to the validity of the will are pending (rule 22(3) of the Probate and Administration Rules).

 

(c) Citation to propound a will

Where a person who has an interest under an earlier will or under the rules of intestacy believes that a will, which has not yet been proved, is invalid, he or she may cite the executors and beneficiaries of the will to propound it (rule 23(1) of the Probate and Administration Rules).  After the determination of  citation proceedings, according to Ang’awa J in In the Matter of the Estate of John Mwangi Wainaina (deceased) Nairobi HCSC No. 665 of 1997, the parties should proceed to file the petition for grant of representation in the usual way.

 

13.5 Renunciation 

Both executors and an administrator may renounce their right to apply for a grant. The renunciation should be in writing, signed by the person entitled to the grant, or declared orally in court (section 59 of the Law of Succession Act and rule 18(1) of the Probate and Administration Rules).. Where a person entitled to a grant wishes to renounce they must, as a rule, renounce as to the whole of the office, rather than with respect only to some of their responsibilities. An infant’s right to probate on attaining majority age, however, may not be renounced on his behalf (rule 34 of the Probate and Administration Rules). In Kothari vs. Qureshi and another (1967) EA 564 Rudd J stated that an executor who has intermeddled in the estate of the deceased cannot renounce probate.

 

In the Matter of the Estate of Gladwell Mumbi Njoroge (deceased) Nairobi HCSC No. 158 of 1998 (Koome J) it was held that a son of the deceased and a beneficiary of the deceased’s estate ought to have been notified of the petition for him to renounce his right generally to apply for a grant or to give his consent. In In the Estate of Naftali (deceased) (2002) 2 KLR 684, Waki J stated the petitioner, a brother of the deceased, was not the right person to seek the grant since there was the mother of the deceased who did not renounce her right and was notified. Waweru J in  In the Matter of the Estate of Laban King’ori Macharia (deceased) Nairobi HCP&A No. 16 of 1988 stated that the renunciation can even be made or given after the grant had been issued. Once renunciation has been made it can only be retracted by an order of the court (rule 18(3) the Probate and Administration Rules) and such order will only be made if it can be shown that it is for the benefit of the estate, or the beneficiaries or the creditors of the estate. In Re Gill’s Goods (1873) LR 3 P&D 113, where an executor had been given incorrect legal advice which had led him to renounce, leave to retract was refused, on grounds that it would not benefit the estate. 

13.6 Consent to Grant being made to someone Else

Rather than renouncing probate, a person who is entitled to apply for grant may consent in writing to the grant being made to a person whose right of administration is inferior or equal to his (rule 26(2) of the Probate and Administration Rules).  Where a grant is applied for without the persons entitled having renounced probate or consented to the application, and  the applicant fails to file the affidavit envisaged by rule 26, the grant issued would be liable for revocation (In the Matter of the Estate of James Kiarie Muiruri (deceased) Nairobi HCSC No. 2413 of 2003 (Koome J)). 

 

13.7 Making of Grants

Grants are issued through the principal registry, a High Court district registry, or a resident magistrate’s registry, signed by the judge or resident magistrate obligated (as the case may be) and sealed with the seal of the registry.  Before issuing the grant the court is to make all the necessary inquiries, including inquiring into proof of the identity of the deceased and of the applicant. No grant should be made within fifteen days of the deceased’s death. It may be made to a single person (including the Public Trustee or a trust corporation) or jointly to two or more persons (including a trust corporation) not exceeding four (rule 25 of the Probate and Administration Rules).

 

The convention of producing a letter from the locational chief or his assistant has developed from the need for the court to satisfy itself as to proof of identity of the deceased and the applicant. Ringera J pointed out in Musa vs. Musa (2002) 1 EA 182 that the letter from the chief is not an essential aspect of the proceedings as it is not required either by the Act or the Probate and Administration Rules. The omission to obtain the letter from the chief is not fatal to the application and it should not be a bar to the making of the grant. 

Under rule 26 of the Probate and Succession Rules a grant of letters of administration is not to be made without a notice being given to every other person entitled in the same degree as or in priority to the applicant. Where the applicant is entitled to a grant in a degree lesser or equal to that of other persons, the written consent or renunciation of those other persons must be obtained.  In default of renunciation or written consent by all persons entitled equally or in priority, the applicant is required to file an affidavit setting the reasons why grant should be made to him in the circumstances. In In Re Estate of Naftali (deceased) 2 KLR 684, Waki J stated that the consents required under rule 26 are not necessary where an affidavit is sworn to support the petition. In In the Matter of the Estate of Gladwell Mumbi Njoroge (deceased) Nairobi HCSC No. 158 of 1998 (Koome J)

Section 66 of the Law of Succession Act lists in hierarchical order the persons to whom a grant of representation in intestacy may be made.  The surviving spouse has priority in applying for and being granted grant of letters administration (In the Matter of the Estate of Murathe Mwaria (deceased) Nairobi HSCS No. 825 of 2003 (Koome J)). The Court of Appeal stated in Kimari and another vs. Kimari (1988) KLR 587 (Platt JA, Gicheru and Kwach Ag JJA)  that  section 66 gives the court final jurisdiction to decide to whom letters of administration should be granted and the decision should be in the best interest of all concerned. According to Waki J in In the Matter of the Estate of Aggrey Makanga Wamira Mombasa HCSC No. 89 of 1996, section 66 gives the court discretion in the appointment of the person or persons who will administer the estate, but priority should be given to the widow and the children by virtue of sections 35, 36  and 38 of the Law of Succession Act.. Other relatives, set out in section 39, should only come in where no spouse or children were left or where the widow and children are unsuitable. Koome J in In the Matter of the Estate of James Kiarie Muiruri (deceased) Nairobi High Court HCSC No. 2413 of 2003, stated that a grant of representation should only be made in respect of one estate. In that case a single grant of letters of administration made in respect of two deceased persons was revoked. 

 

In Kimari and another vs. Kimari (1988) KLR 587 (Platt JA, Gicheru and Kwach Ag JJA), the Court said that the purpose of  section 66 is to place the widow in a stronger position than she had enjoyed at customary law. The preference given to the widow is  not final and it is proper in some cases to allow the widow to administer the estate in association with some other member of the family.

 

Under section 67 of the Law of Succession Act, no grant of representation, except the grant ad colligenda bona, should be made before a notice of the petition or application for the grant has been published inviting objections to the same. The notice should be for a period of not less than thirty days, and grant should be made only after the expiry of the notice. The notice should be exhibited at the courthouse and in such other manner as the court may direct. It is usually published in the official gazette.

 

Under rule 29 of the Probate and Administration Rules, the court may before making the grant require to be satisfied as to the solvency of the administrator. This takes requiring the proposed administrator to file an affidavit as to means. The may also, for reasons to be recorded , require one or more sureties to guarantee that they would make good any loss occasioned to any person  beneficially interested in the estate by any breach of duty by the administrator. Ringera J in Musa vs., Musa (2002) 1 EA 182, stated that there is no requirement in the Act or the rules that an application for a grant of letters of administration must be accompanied by more than one surety. Indeed  there is not even a requirement for one surety. The court emphasised that the court may as a condition for the grant of letters require production of sureties since the requirement for sureties is at the court’s discretion. 

 

According to Githinji J in Karanja and another vs. Karanja (2002) 2 KLR 22, the principal duty of a 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. The probate court is not required to decide questions as to whether properties disposed of are wholly owned or jointly owned by the deceased or whether he deceased had power to dispose of some of the properties. The grant of probate of a will is only conclusive as to the validity of a will; the contents of a will and appointment of the executors. It does not predetermine all other disputes which may arise.

 

The principal registry and the High Court district registry have jurisdiction to make any limited grant, but the resident magistrate’s jurisdiction is restricted. The resident magistrate may make limited grants subject to sections 48 and 49 of the Law of Succession Act. Rule 36(3) of the Probate and Succession Rules specifically confers upon the High Court exclusive jurisdiction over the making of grants ad colligenda bona defuncti, but section 49 of the Law of Succession Act gives the resident magistrate jurisdiction to make a comparable limited grant.   

 

In Florence Okutu Nandwa and another vs. John Atemba Kojwa Kisumu CACA No. 306 of 1998 (Kwach, Shah and O’Kubasu JJA), the Court of Appeal held that a court should not proceed in gratis to issue a grant to a person who has not sought the grant. Aluoch J in In the Matter of the Estate of Dr. Arvinder Singh Dhingra (deceased) Nairobi HCSC No. 2572 of 1996, found that a grant made to the advocates for the parties who had not applied for it was made irregularly.

 

13.8   Passing Over

Under section 66 of the Law of Succession Act, rule 27 of the Probate and Administration Rules and clause 16 of the 5^th Schedule, the court has a power to pass over a person entitled to a grant of letters of administration if, by reason of special circumstances, it appears necessary or expedient to appoint as administrator some person other than the person entitled to the grant. The common circumstances are where an administrator is physically or mentally ill, insolvent, missing, resident abroad, or in prison; but no exact rules are laid out in the Law of Succession Act. In Muigai vs. Muigai and another, Amin J passed over the wives of the deceased, who were feuding over the estate and made the grant to the Kenya Commercial Limited.

 

Under section 7 of the Public Trustee Act, the court may, on its own motion or upon hearing the Public Trustee, grant representation to the Public Trustee notwithstanding that there are persons who, under the Law of Succession Act or other written law, would be legally entitled to administer the estate of the deceased person in preference to the Public Trustee. In In the Matter of the Estate of Charles Muigai Ndung’u (deceased) of Karinde Kiambu District Nairobi HCP&A No. 2398 of 2002 (Koome J), the deceased was survived by a minor son and a widow who remarried. The court pronounced the minor to be the sole heir of the deceased. It was directed that the grant be made to the Public Trustee, in keeping with section 66 of the Law of Succession Act and section 7 of the Public Trustee Act, because of the remarriage of the widow, the minority of the child of the deceased and the fact that the widow and father of the deceased were not on good terms.  The court in Swaboa Nassor Salim Hadi vs. Swaleh Salim Hadi HCP & A No. 52 of 1990 passed over the daughter and brother of the deceased and made the same to the Public Trustee.

 

13.9   Confirmation of Grant

The personal representative is obliged by section 71(1) to apply for confirmation of the grant after the expiration of six months from the date of the grant. The confirmation entitles or empowers the personal representative to distribute any capital assets (Wairimu Gathute vs. Theuri and another Nyeri CACA No. 33 of 1991 (Gicheru, Kwach and Muli  JJA)).  Emukule J in Shital Bimal Shah and two others vs. Akiba Bank Limited and four others (2005) eKLR, stated that under section 55 of the Law of Succession Act no grant of representation confers 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 under section 71 of the Act. In In the Matter of the Estate of Mary Gachuru Kabogo (deceased) Nairobi HCSC No. 2830 of 2001, Ang’awa J declined to order the release of funds held in a bank account to the credit of a deceased person on the grounds that there were no specific rules for the release of funds to an administrator before confirmation of a grant. The court may also direct that the grant be confirmed before the expiration of six months from the date of grant in cases where there is no dependant of the deceased and where it is expedient so to direct. Under section 73 the court is obligated to give notice to the holder of a grant to apply for confirmation in cases where the holder has failed to comply with section 71.

 

The application for confirmation takes the form of a summons for confirmation (rule 40 Probate and Administration Rules) supported by an affidavit giving details of the persons who have survived the deceased. The application is basically non-contentious, but it becomes contentious if a protest is lodged against the confirmation by either a caveatee or the beneficiaries notified of the application. According to Kamau J in In the Matter of the Estate of Gachunga Gachamba (deceased) Nairobi HCSC No. 642 of 2000 the application for confirmation of a grant is a mandatory requirement of law and without it any confirmed grant would be void to the extent of the confirmation.

 

Confirmation means the confirmation of the contents in the grant, the appointment of personal representatives and the proposed distribution of the estate of the deceased person involved (In the Matter of the Estate of Joseph Muchoki Muriuki (deceased) Nyeri HCSC No. 396 of 1999 (Khamoni J).  The court upon the application for confirmation being made may confirm the grant or, if not satisfied that the applicant will properly administer the estate, issue a confirmed grant to another person or persons or order the postponement of the confirmation. According to the court in In the Estate of Njoroge and another (2003) KLR 73 (Etyang J) confirmation should only be applied for by and be made to the holders of the grant (In the Matter of the Estate of Kihagi Wamai (deceased) Nyeri HCSC No. 266 of 1995 (Okwengu J).

 

With respect to intestacy, the grant of letters of administration should not be confirmed until the court is satisfied about the identities of and shares of all persons beneficially entitled (proviso to section 71(2A) of the Law of Succession Act). At the time of confirmation of a grant in intestacy, the confirmed grant should specify all such persons and their respective shares. In In the Matter of the Estate of Wanjihia Njuguna (deceased) Nairobi HCSC 5333 of 2002 (Ang’awa J) the court declined to grant confirmation because the daughters had not been included in the list of beneficiaries. It was held that section 35 of the Law of Succession Act had been not complied with. A similar finding was made in In the Matter of the Estate of Benjamin Mugunyu Kiyo Nairobi HCSC No. 2678 of 2001 (Ang’awa J). In In the matter of the Estate of Ellah Wamae Nthawa (deceased) Nairobi HCSC No. 971 of 2001 (Ang’awa J) confirmation was denied because a daughter was given a very small share of the property relative to the shares given to the brothers. Section 38 requires that the estate should be shared equally among all the children, regardless of their gender (In the Matter of the Estate of George Karegwa Gitau (deceased) Nairobi HCSC No. 959 of 2001 (Ang’awa J). 

 

The certificate of confirmation issued following the confirmation of the grant must bear the identities of all persons beneficially entitled and their respective shares. In In the Matter of the Estate of Justus Wangai Muthiru (deceased) (Waweru J), a certificate which did not contain the names of some of the beneficiaries was cancelled and the order of confirmation granting it was set aside.  Rule 40(8) of the Probate and Administration Rules requires that all dependants or other persons who are beneficially entitled to the estate to consent in writing to the confirmation. Where such consents are not obtained the confirmation proceedings would, as stated by Kamau J in In the Matter of the Estate of Gathima Chege (deceased) Nairobi HCSC No. 1955 of 1996, be defective in substance and liable for setting aside (In the Matter of Laban King’ori Macharia (deceased) Nairobi HCP&A No. 16 of 1988 (Waweru J). In In the Matter of the Estate of Benjamin Mugunyu Kiyo (deceased) Nairobi HCSC No. 2678 of 2001, Ang’awa J stated that even a beneficiary who has disclaimed their right to a share of the estate should file a consent to the confirmation in accord with rule 40 (8) of the Probate and Administration Rules.

 

Where the beneficiaries file rival proposals on the distribution of the estate, the court has to determine the matter by adjudicating the conflicting claims. In In the Matter of the Estate of Mwangi Giture (deceased) Nairobi HCSC No. 1033 of 1996 (Koome J), the co-administrators of a polygamist’s estate represented the two houses. They put in conflicting proposals for confirmation. One house proposed the division of the estate equally between the houses in accord with Kikuyu customary law, while the other house suggested a division in accord with sections 35 and 40 of the Law of Succession Act. The court, although sympathetic to the plight of the first widow who claimed to have a bigger stake in the estate having helped the deceased acquire most of the assets before the second widow was married twenty-one years later, applied sections 35 and 40 of the Law of Succession Act on the basis that it is the law applicable in the circumstances the deceased having died after the Act came into force.  

Under section 72 of the Law of Succession Act, the court should not confirm the grant where there is a pending application, under section 26 of the Law of Succession Act, for reasonable provision out of the estate. 

 

13.10   Alteration or Rectification of Grants

Errors which are not of a material nature, such as those relating to names and descriptions or the setting and place of the deceased’s death or the purpose in a limited grant, may be rectified by the court under of section 74 of the Law of Succession Act and rule 43 of the Probate and Administration Rules. Thereafter the grant of representation, whether before or after confirmation, may be accordingly altered and amended (In the Matter of the Estate of Late Timaiyo Mokosio also known as Simon Nemokoosio (deceased) Nairobi HCSC No. 1063 of 1987 (Ang’awa J)). Likewise, if a codicil is discovered after the grant of letters of administration with the will annexed or after the confirmation of such a grant, the same may be added to the grant and the grant accordingly altered and amended (section 75 of the Law of Succession Act).

 

Where there are complaints relating to a certificate of confirmation of grant or confirmation of grants generally, the person dissatisfied should not move the probate court for revocation of the grant. The certificate of confirmation should be dealt with without affecting the validity or soundness of the grant (In Re Estate of Ngugi (deceased) (2002)2 KLR 434 (Khamoni J)

 

In Kamau vs. Kirima (2002) 2 KLR 172 and In Re Estate of Kariuki (2002) 2 KLR 125, Khamoni J) stated that a certificate of confirmation of grant confers on a beneficiary under it a beneficial interest in the estate of the deceased. Where the beneficiary dies before the personal representative of the deceased has effected the transfer of the resultant legal interest or title to the deceased beneficiary, it would not be proper to apply for the rectification of the certificate of grant to replace the deceased beneficiary with another person other than a confirmed personal representative of the deceased beneficiary. The correct procedure is that the person aspiring to replace the deceased beneficiary has to apply for representation of the estate of the deceased beneficiary. After confirmation of the grant of representation of the estate of the deceased beneficiary, the grantee should then ask the administrator of the estate of the first deceased person to apply for the rectification of the certificate of confirmation of grant of the estate of the first deceased person to enable the personal representative of the deceased beneficiary replace the deceased beneficiary 

 

The Law of Succession Act does not set out a clear procedure for dealing with complaints about the confirmation process. Although section 74 does allow for the rectification and alteration of grants, including a confirmed one, to correct errors, the wording of the provision appears to confine it to correction of minors errors (In the Matter of the Estate of Mr. James Thuo Kihoto (deceased) Nairobi HCSC No. 909 of 1994 (Koome J) and In the Matter of the Estate of Late Timaiyo Mokosio also known as Simon Nemokoosio (deceased) Nairobi HCSC No. 1063 of 1987 (Ang’awa J)). Fundamental errors such as the failure to comply with the mandatory requirements of section 71 and rule 40(8) are obviously beyond the scope of section 74. 

 

One remedy for such errors is the revocation of the grant. In In the Matter of the Estate of Muniu Karugo (deceased) Nairobi HCSC No. 2668 of 1997 Koome J dismissed for being misconceived an application seeking rectification of grant since it sought orders that would have substantively altered the mode of distribution of the estate, and in the circumstances rectification of the grant was not the appropritate remedy. The appropriate remedy should ought to be an application for the revocation of the grant.  This, however, is viewed as too drastic a measure where the complaint is limited to the confirmation process, and not the grant of representation in general (In Re Estate of Gitau (deceased) (2002) 2 KLR 430 (Khamoni J) and In Re Estate of Ngugi (deceased) (2002)2 KLR 434 (Khamoni J)). Revocation of grant at this stage seriously inconveniences the parties who have to start the exercise of applying for representation all over again. The other approaches are by way of applications for review under Order XLIV of the Civil Procedure Rules (In the Matter of the Estate of Kamau Mwangi (deceased) Nairobi HCSC No. 1579 of 1994 (Osiemo J)) and rules 49 and 73 of the Probate and Administration Rules by invoking the inherent powers of the court.

CHAPTER FOURTEEN

14 CONTENTIOUS PROBATE 

14.1 INTRODUCTION

Contentious proceedings, also known as probate in solemn form, are dealt with mainly by the High Court, with limited power to resident magistrate to deal with some matters. They are usually commenced under the provisions of Probate and Administration Rules, but with respect to some matters, they may be commenced under Order XXXVI rule 1 of the Civil Procedure Rules. Probate in solemn form is required where either there is a dispute as to the validity of a will or a dispute over entitlement to a grant or action is being taken to revoke a grant which has been made in common form or where probate of a lost will is sought and the persons with contrary interest have refused to consent to the probate in common form. In Kenya, contentious proceedings are common with relation to objections to the making or confirmation of a grant, revocation of grant and family provisions. 

 

The contentious proceedings, whether commenced by way of cross-petition or ordinary summons or originating summons depending on the Rules under which they are brought, may issue at the instance of the executor or any person who has an interest under the will (or any other will or codicil) whose interest will be adversely affected or by a person entitled in intestacy. Most of the disputes, taking the form of objections and objection proceedings, are brought by persons who would like to be involved in the administration of the estate. Most beneficiaries appear to confuse personal representatives with beneficiaries. Even when the beneficiaries are disclosed in the petition, they would insist of being made personal representatives in the false belief that it is personal representatives who benefit from the estate (In the Matter of the Estate of Joseph Muchoki Muriuki (deceased) Nyeri HCSC No. 396 of 1999 ( Khamoni J).

 

14.2 Objections to the making of grants

A person who has not applied for a grant may lodge an objection under rules 7(4) and 17(1) of the Probate and Administration Rules in the registry in which the pending application has been made or at the principal registry. Objection proceedings commenced after the making of the grant are incompetent (In Re Estate of Mangece (2002) 2 KLR 399 (Khamoni J). Upon receipt of the objection the court should notify the person or persons by whom the application for a grant has been made of the objection, and at the same time require the objector to file an answer to the petition for grant together with a petition by way of cross application. According to Kamau Ag.J in In the Matter of the Estate of Hemed Abdalla Kaniki (deceased) Nairobi HCSC No. 1831 of 1996, only a definite class of people is entitled to bring objection proceedings under section 68 of the Law of Suion Act, the class being of the persons set out in section 66 of the Act as entitled to administer an estate 

 

Upon the filing of the proper form of answer and a petition by way of cross application by the objector, the matter should be set down for the hearing of the petition, answer and cross application. The hearing of the dispute may take the form of oral submissions based on the papers filed in court or on both submissions and viva-voce evidence. Where notice of objection is lodged in court but the answer and cross application are not filed within the prescribed period or at all the court should make a grant in terms of the original petition. The relevant provisions of the law relating to objections do not indicate the grounds upon which the same may be made, but in general, they relate to validity of the will, right to administration or entitlement to a grant, suitability or competence of applicant as administrator, among others.

 

In In the Matter of Manubhai Kishabhai Patel alias Manibhai Kishabhai Patel, deceased Nairobi (Milimani) HCSC No. 2340 of 1996 (Onyango-Otieno J), objection to an application for a grant of probate was founded on the grounds that the purported signature of the deceased on the will was a forgery, the alleged will had not been properly executed and the property disclosed in the petition had been grossly undervalued. After hearing oral evidence, the court found that the will had been properly executed and dismissed the objection.  In In the Matter of the Estate of Philly Nyarangi Otundo, (deceased) Nbi HCSC No. 2078 of 1997 (Aluoch J), the objectors to the application for  grant of probate claimed that the subject will was a forgery and described the executors as strangers. The objection was dismissed as the court found that the will had been made freely and properly. In In the Matter of the Estate of Naomi Wanjiku Mwangi (deceased) Nairobi HCSC No. 1781 of 2001 (Koome J), the objection was founded on the ground that the alleged will had not been executed in accordance with the law. Evidence was taken on the circumstances of the making of the alleged will, after which the court concluded that the deceased had died intestate, as the purported will had been made under suspicious circumstances. In Karanja and another vs. Karanja, Nyanjugu and another vs. Karanja (2002) 2 KLR 22 (Githinji J), the objections to an application for grant of probate were founded on allegations that the wills were not signed by the deceased. Alternatively, it was alleged that the wills were made under undue influence, were not duly executed as provided in law and that they had been tampered with while in the custody of one of the beneficiaries. The court was convinced, upon the evidence adduced, that wills had been duly signed and dismissed the objections.

 

In Atemo vs. Imujaro (2003) KLR 435 (Omolo, Shah and Waki JJA), Muigai vs. Muigai and another (1995-1998) 1 EA 206 (Amin J), In the Matter of the Estate of James Mberi Muigai Kenyatta Nairobi HCSC No. 2269 of 1998,(Aluoch J), In the Matter of Estate of Gerishon John Mbogoh Nairobi HCSC No. 989 and 1110 of 1999 (Visram J), In the Matter of the Estate of Francis Kiarie Ndirangu Nairobi HCSC No. 82 of 2002 (Koome J), Estate of Stephen Kimuyu Ngeki (deceased) Machakos HCP&A No. 267 of 1995 (Mwera J), and Mary Wanjiku Gachigi vs. Ruth Muthoni Kamau Nakuru CACA No. 172 of 2000 (NAK 13/2000) (Tunoi, Bosire and Owuor JJA) the objections to applications for grants of representation were founded on the grounds that the objectors were wives of the deceased  persons at customary law and, for that reason, they were entitled to, not only being recognised as beneficiaries, but also representation being made to them. In  In the Matter of Estate of Gerishon John Mbogoh Nbi HCSC No. 989 and 1110 of 1999 (Visram J), the objector was unable to prove that she was married to the deceased under customary law as she lacked capacity to contract a customary law marriage with him on account of a subsisting statutory marriage. The objectors in Mary Wanjiku Gachigi vs. Ruth Muthoni Kamau Nakuru CACA No. 172 of 2000 (NAK 13/2000) (Tunoi, Bosire and Owuor JJA) and In the Matter of the Estate of James Mberi Muigai Kenyatta Nairobi HCSC No. 2269 of 1998 (Aluoch J) were not able to prove their alleged customary law marriages to the deceased persons to the required standard. The objections in Atemo vs. Imujaro (2003) KLR 435 (Omolo, Shah and Waki JJA), Muigai vs. Muigai and another (1995-1998) 1 EA 206 (Amin J), In the Matter of the Estate of Francis Kiarie Ndirangu Nairobi HCSC No. 82 of 2002 (Koome J) and Estate of Stephen Kimuyu Ngeki (deceased) Machakos HCP&A 267 of 1995 (Mwera J) succeeded since the objectors proved that they had been properly married under customary law to the deceased.

 

An objector alleging the existence of a customary law marriage must prove the fact to the required standard. Rule 64 of the Probate and Administration Rules is a guide on how customary law may be proved:  by production of oral evidence or by reference to a recognised treatise or other publication on the matter. It was held in Mwagiru vs. Mumbi (1967) EA 639 that the onus of proving customary law marriage is on the party who claims it, which is on a balance of probabilities. Evidence as to the formalities required for a customary marriage must be proved to the required standard. In Kimani vs. Gikanga (1965) EA 735 (Newbold VP and Duffus JA, with Crabbe JA dissenting) it was held that the custom or customary rule relied upon by the party must be established for the court’s guidance.

 

The text referred to most in probate matters where a customary law marriage is alleged is Eugene Cotran’s Restatement of African Law: Law of Succession II. The Court of Appeal in Atemo vs. Imujaro (2003) KLR 435 (Omolo, Shah and Waki JJA) cautioned that Cotran’s Restatement should not be treated by the courts as the only source of customary succession law. It should not be taken that what is not recorded in the Restatement cannot form part of the customary succession laws of the various communities in Kenya.

 

Some objections are founded on marriages presumed from long cohabitation. In such cases, the objectors would essentially be asking the court to presume marriage from prolonged cohabitation between them and the deceased. The principles for determining presumption of marriage from prolonged cohabitation are stated in the famous cases of Hortensiah Wanjiku Yawe vs. Public Trustee CAEA CA No. 13 of 1976 (Wambuzi P, Mustafa and Musoke JJA) and  Njoki vs. Mutheru (1985) KLR 871, both of which were succession disputes where the issue of presumption of marriage fell to be decided. The presumption does not depend on any law or system of marriage. It is an assumption based on a very long cohabitation and repute that the parties are married. Some of the factors to be considered include: children fathered by the deceased, valuable property acquired jointly, and performance of some ceremony of marriage. There must a quality cohabitation and not mere friendship. It should be beyond concubinage; a cohabitation which has crystallized into a marriage so that it would be safe to presume there is a marriage.

 

In In the Matter of the Estate of John G. Kinyanjui (deceased) Nairobi HCP&A 317 of 1984, Butler-Sloss J held that cohabitation could be evidence from which it may be presumed that the parties to the cohabitation did marry. He, however, pointed out that cohabitation in itself is not tantamount to marriage. On the facts of the case before him the judge found that there had been some degree of cohabitation between the deceased and the objector, but declined to presume that from that cohabitation there was a marriage between the deceased and the objector largely because the objector herself said their was no marriage between them. Kamau J was similarly unconvinced that the cohabitation between the objector and the deceased in the case of In the Matter of the Estate of Samuel Muchiru Githuka- deceased Nairobi HCSC No. 1903 of 1994 amounted to a marriage since the cohabitation was not frequent. 

 

Visram J stated in In the Matter of Estate of Gerishon John Mbogoh Nairobi HCSC No. 989 and 1110 of 1999 that the presumption of marriage is a rebuttable presumption; it can be rebutted by evidence to the contrary. In In the Matter of the Estate of Michael Kamau Kahiri (deceased) Nairobi HCSC No. 302 of 1999 (Ang’awa J) and In the Matter of the Estate of Charles Muigai Ndung’u (deceased) of Karinde Kiambu District (Nairobi HCSC No. 2398 of 2002 (Koome J) the courts were satisfied that there were marriages which could be presumed from the deceaseds’ long cohabitation with the objectors. Nambuye J in In the Matter of the Estate of Loice Njeri Ngige Eldoret HCP&A No. 113 of 1994, a decision whose correctness is doubtful, held that a party wishing to allege a marriage out of prolonged cohabitation should first obtain declaratory orders before asserting themselves in probate proceedings as persons entitled on that basis.

 

Others objections are by persons alleging to be the children  and other relatives of the deceased  who feel that their interests are not catered for or are unlikely to be protected if grant is made to the applicants. In Chelang’a vs. Juma (2002) 1 KLR 339 (Etyang J), the objections were by the mother and the siblings of the deceased, respectively. The mother’s complaints were that, she had not been notified of the petition, one of the petitioners was not an heir and therefore he was not entitled to apply, and that she and two illegitimate children of the deceased were dependants of the deceased and should have been listed in the petition as survivors. The siblings grouse was that they were the brothers and sisters of the deceased and therefore dependants and heirs of the deceased. The court found that the second petitioner, a brother of the deceased’s wife, was not a suitable person to be appointed in the circumstances of the case. It was further found that the surviving mother of the deceased was entitled to a share of his deceased son’s estate, but illegitimate children have no inheritance rights under Islamic law. With respect to the siblings who were all non-Muslims, it was held that under the relevant law non-Muslim cannot inherit in intestacy from the estate of a deceased Muslim. In In the Matter of the Estate of James Aran Njau Kibue (deceased) Nairobi HCSC No. 2358 of 1996 (Aganyanya J), the objection was by persons claiming to be children of the deceased. They failed to convince the court that they were children of the deceased and their objection was dismissed. 

 

In intestacy matters, the objections are often based on a claim that the deceased had died testate on the basis that he had made an oral will. In In the Matter of the Estate of Amos Kiprono Sirma (deceased)  Nakuru HCSC No. 231 of 1994 (Rimita J), the objection to the application for grant of letters of administration was founded on the grounds that the deceased had disposed of his estate during his lifetime through an oral will. The court, based on evidence found that there was a valid oral will, and upheld the objection and dismissed the petition. An objection based on similar grounds in In the Estate of Nduva Mailu (deceased) Machakos HCSC No. 110 of 1994 (Mwera J) was dismissed as the alleged oral will was not proved. In In the Matter of the Estate of Benson Ndirangu Mathenge (deceased) Nakuru HCSC No. 231 of 1998 (Ondeyo J), another decision whose correctness is suspect, the objection to an application for grant of letters of administration was predicated on a written will which was attached to the objection. The court did not make a finding on the validity of the written will, but disregarded it because of its alleged unfairness to some of the beneficiaries, with the result that the objection failed.

 

Objections are also founded on the unsuitability of or the lack of competence on the part of the petitioner or petitioners. In In the Matter of the Estate of Aggrey Makanga Wamira Mombasa HCSC No. 89 of 1996 (Waki J), the father of the deceased objected to an application for grant of letters of administration by his daughter-in-law and granddaughter in respect of his son’s intestate estate. He argued that the petitioners were unsuited as administrators as the daughter-in-law was young and inexperienced and could not administer the estate properly. He also said that she was likely to remarry. He further argued that his granddaughter was just a minor. The court held that the widow was suited to manage the estate, and that the daughter was of age and thus qualified for appointment as administrator. The issue of suitability was alluded to by the court in Chelang’a vs. Juma (2002) 1 KLR 339 (Etyang J), Swaboa Nassor Salim Hadi vs. Swaleh Salim Hadi HCP&A No. 52 of 1990when it was held that the brother-in-law of the deceased was entitled to apply for a grant of letters under the Law of Succession Act and Islamic law, but in the peculiar circumstances of the case he was unsuitable for appointment as a personal representative. In, the petitioner was the eldest daughter of the deceased intestate, while the objector was her uncle who, under the Islamic law of inheritance, was entitled to a portion of the intestate estate of his late brother. The petitioner had just turned eighteen, the age of majority, before applying for the grant.  The objector opposed the petition on the ground that the petitioner was too young, that she could be prone to manipulation and that she lacked experience to manage the vast estate. The petitioner argued that the respondent did not have interest in administering the estate for the benefit of the minor beneficiaries of the estate; his interest was to plunder the estate. The court found that none of them had the competence to administer the estate.  The grant was made to the Public Trustee.

 

It would appear that objection proceedings should be limited to issues that can be dealt with at the preliminary stage. Matters for which procedures have been set out in the Act should be properly dealt with through those procedures and not through objection proceedings. In In the Matter of the Estate of David Wahinya Mathene (deceased) Nairobi HCSC No. 1670 of 2004, Koome J declined to give the orders sought in objection proceedings on the basis that the grounds upon which the application was predicated were not proper. The issues raised could be properly dealt with under other provisions of the Act, not the objection proceedings. The matters raised by the objector centred on intermeddling with the estate and inadequate provision.

 

In In re estate of Ngetich (2003) KLR 84 (Nambuye J), the court after hearing objection proceedings, instead of deciding on who should be given the grant, went straight into distributing the estate. The procedure adopted by the court in this matter is doubtful; the objection proceedings should be limited to deciding on the simple issue of who should be given the grant. There is no room for dealing with distribution at this very early stage in the probate proceedings. It is also doubtful whether the court can at this stage apply section 26 of the Law of Succession Act and decide on the question of reasonable provision when there is no application before it on the issue.  The same approach was also adopted in In the Matter of the Estate of Benson Ndirangu Mathenge (deceased) Nakuru HCSC No. 231 of 1998 (Ondeyo J) and In the Matter of the Estate of Loice Njeri Ngige Eldoret HCP&A No. 113 of 1994  (Nambuye J).  The objection proceedings are tailored to determine issues of representation and are unsuited for distribution purposes. The approach is also unprocedural and unlawful. Section 71 of the Law of Succession Act requires that the holder of the grant should apply for the confirmation of the grant after the expiration of six months. Disposing of distribution at the same time with the determination of representation overlooks the mandatory provisions of section 71. The court, even in exercise of its inherent power, cannot dispense with the requirements of section 71 of the Law of Succession Act.  

 

Objection proceedings should  not be confused with proceedings for the revocation of grant. Kimaru J in In the Matter of the Estate of Tabutany Cherono Kiget (deceased) Kericho HCP&A 157 of 2001, while dealing with an application for the revocation of grant, repeatedly described the revocation proceedings as objection proceedings. This is no quite right: objection proceedings and revocation proceedings are distinct and separate procedures, and one should not be mistaken for the other.

 

14.3 Protests to the confirmation of grant

Where an application for confirmation of grant to the estate of a deceased (which takes the form of a summons for confirmation) is made in regard to which a caveat has been entered and is subsisting, the registrar or resident magistrate should send a notice to the caveator alerting him of the making of the application for confirmation and notifying him that if he wishes to object to the confirmation of the grant he should file an affidavit of protest against the confirmation setting out the grounds of his objection (rule 40(5)(6) of the Probate a 

‘nd Administration Rules). Upon the filing of the affidavit in protest by the protestor or any other person who is opposed to the proposed distribution, the matter should proceed for the hearing of the application for confirmation during which the protestor’s protest should be heard. The persons heard include the applicant seeking the confirmation of grant, the protestor and any other person interested (rule 41(1) of the Probate and Administration Rules).

 

Kamau Ag. J in In the Matter of the Estate of Laban Gikonyo Kamau (deceased) Nairobi HCSC No. 84 of 1999, stated that the affidavit of protest constitutes the basic foundation of a protestor’s claim to the estate of the deceased. The affidavit or affidavits should be made in support of the protestor’s claim averring to the deceased’s intentions, among other matters, as regards the mode of distribution of his estate. The makers of such affidavits are usually the witnesses that the protestor produces during the confirmation hearing. 

 

Ang’awa J in In the Matter of the Estate of Mary Gachuru Kabogo (deceased) Nairobi HCSC No. 2830 of 2001, set out the procedure for disposing of protest to confirmation hearings. When the matter is set down for the confirmation hearing, if the parties dispute over certain properties, under rule 40 of the Probate and Administration Rules the disputed properties go to the protest hearing. The properties that are not the subject of a dispute are confirmed under rule 41 of the Probate and Administration Rules.  The disputes over the contested property should be heard under order XXXVI of The Civil Procedure Rules as a separate cause. 

 

In  In the Matter of the Estate of Patrick Mungai Kugega (deceased) Nbi HCSC No. 1374 of 2000 (Koome J), the beneficiaries were the children of the deceased, and it was proposed that the estate be distributed in equal shares between the beneficiaries, except for a daughter who was get a slightly smaller share. The proposal was agreeable to all except for one son who filed an affidavit in protest. His case was that their deceased father had bequeathed to him a certain parcel of land. He also alleged that he used to send money to his father which was used to purchase the other parcels of land. He wanted the other children to move out of the land allegedly bequeathed to him by the deceased. The court held that the evidence adduced was insufficient to show that the protest helped the deceased acquire the property. It was also noted that the deceased had died intestate and did not leave a will. The court directed that the estate be equally shared between all the children of the deceased in keeping with section 38 of the Law of Succession Act.

 

In In the Matter of the Estate of Kinyuru Karanja (deceased) Nairobi HCSC No. 2361 (Waweru J), the protestors were two children of the personal representative who were opposed to their mother’s proposed distribution of their father’s estate. Their main quarrel was that their mother favoured one of the  other children by giving him more than the others. Her explanation was that that particular son assisted her and the deceased with the money used to purchase the land the subject of the estate. It was held that whatever sentimental attachment the personal representative may have had to the favoured son the same was not sufficient reason for denying the other of their inheritance. It was directed that the property be shared equally between all the children.

 

14.4 Revocation of grant under the Law of Succession Act

The grant of representation, whether or not confirmed, may be revoked or annulled at any time by the court on its own motion or on application by an interested party by virtue of section 76 of the Law of Succession Act. Under section 9 of the Public Trustee Act, a grant to the Public Trustee may be revoked on the application of any person to whom the court might have granted representation if grant had not been made to the Public Trustee.

 

(i) Reasons for revocation of grant

Revocation can be on any of the following grounds: the proceedings to obtain a grant being defective in substance; the grant having been obtained by reliance on false statements, non-disclosure or concealment of important matter or information; the person to whom grant was made having failed to apply for confirmation within the  prescribed time or having failed to diligently administer the estate or having failed to produce to the court within the prescribed time any inventory or account  of administration as required in law or produces an inventory or account which is false; and the grant having become useless and inoperative through subsequent circumstances (section 76). The application for revocation of grant should be based on the grounds set out in section 76 otherwise it fails (In the Matter of the Estate of Patrick Mbugua Njoroge (deceased) Nairobi HCP&A No. 659 of 1989 (Waweru J)).

The proceedings to obtain grant are considered defective in substance where the will, which is the basis of the application, is invalid, or account of certain procedural defects in the application for or the making of the grant. In Mwathi vs. Mwathi and Another (1995-1998) 1 EA 229 (Gicheru, Kwach and Shah JJA) an application for revocation was made under section 76 of the Act on the ground that the will, the basis of the grant was not genuine. It was held that the will was invalid, as it had been procured by fraud and undue influence. The grant, made based on the invalid will, was held to have been irregularly obtained and was revoked.

 

The grant of letters of administration issued and confirmed in the case of In the Matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias Mwaura Mbura (deceased) Nairobi HCSC No. 935 of 2003 (Kamau J) was revoked because the grantee had failed to notify the applicant of the petition and to obtain his consent. In In the Matter of the Estate of Ngaii Gatumbi alias James Ngaii Gatumbi (deceased) Nairobi HCSC No. 783 of 1993 (Koome J), the court found that the applicants who were equally entitled to apply for grant of letters of administration were not notified of the petitioner’s intention to apply for the grant, their consent to the petitioner applying alone were not obtained nor were citations served upon them. The grant was revoked on the ground that it had been obtained through an improper procedure. One grant of letters of administration was issued in respect of the estates of two deceased persons in the case of In the Matter of the Estate of James Kiarie Muiruri (deceased) Nairobi HCSC No, 2413 of 2003. The procedure of obtaining a single grant for two estates was found by Koome J to have been totally irregular and defective:  the grant was revoked. In Musa vs. Musa (2002) 1 EA 182 (Ringera J), the applicant’s claim was that the making of the grant was attended by defects in that the letter from the assistant chief did not disclose all the survivors of the deceased, the petitioner failed to produce the requisite number of sureties and the petitioner did not obtain the consent of the other beneficiaries before filing the petition. The court declined to revoke the grant on these grounds. It was held that the letter from the chief and the sureties are not mandatory requirements whose absence would affect the status of a grant. Regarding the consent of other survivors, the court held that the widow, who was the petitioner, had priority under section 66 of the Law of Succession Act to apply for the grant and she did not need the consent of any other person. The grant, however, was revoked on the ground that it was defective in substance in that it was made to the applicant alone contrary to section 58(1) of the Law of Succession Act, which requires that where a continuing trust arises from the fact that some of the beneficiaries are minors the grant should not be made to less than two people. In In Re Estate of Naftali (deceased) (2002) 2 KLR 684 (Waki J), the estate of a deceased Congolese, who died in Kenya his domicile being in either Congo or Rwanda, comprised of movables only. The grant made by a Kenyan court was revoked on the ground that the process of obtaining the same was defective. Under section 4(1) (b) of the Law of Succession Act, the law of succession that applies with regard to movable property is the law of the country where the deceased is domiciled.

 

In In the Matter of the Estate of Karanja Gikonyo Mwaniki (deceased) Nakuru HCMisc. 245 of 1998 (Ondeyo J), the court on its own motion, in keeping with section 76, of the Law of Succession Act, revoked a grant in, because the proceedings to obtain it were defective. The grant had been issued by a Resident Magistrate in respect of an estate whose value was Kshs. 240 000.00. Ondeyo J held that the Resident Magistrate had not jurisdiction to make the grant since his jurisdiction was limited to an estate whose value did not exceed Kshs. 100 000.00.  In In the Matter of the Estate of Dr. Arvinder Singh Dhingra (deceased) Nairobi HCSC No. 2572 of 1996 (Aluoch J), a grant made to the advocates for the parties who had not applied for it was revoked by the court on its own motion because it was made through a defective process.

 

Most of the applications are founded on the grounds that the grant was obtained fraudulently by the making of a false statement or untrue allegation of a fact, or by the concealment from the court of material information. In Samwel Wafula Wasike vs. Hudson Simiyu Wafula CA No. 161 of 1993 it was alleged that the appellant had deceived the court when he stated in his petition that he was a grandson of the deceased. The deceased was in fact not his grandmother, but a sister of his grandmother. The persons who had prior right to the grant had not given their consent. It was held that the grant had been obtained fraudulently by the making of a false statement and it was revoked. In In the Matter of the Estate of Benjamin Ndumba Gachanja Nairobi HCSC No. 2172 of 1994 and In the Matter of the Estate of Robert Napunyi Wangila Nairobi HCSC No. 2203 of 1999,  it transpired that there had been fraudulent concealment in the petitions for grants of letters of administration of the fact that the deceased persons had died testate, the grants were revoked. In In the Estate of Peter Minik (deceased) Machakos HCP&A 13 of 1998 (Mwera J), a grant was revoked because the petitioner had not disclosed some of the survivors of the deceased in her petition. The grant in In the Estate of Kinungi Kimani (deceased) Machakos HCP&A. No. 228 of 1995 (Mwera J) was revoked on the ground of concealment of matter from the court, which would have assisted in determining to who it should make the grant. The concealed matter was the fact that the deceased had sold a portion of the land making up the estate to the applicant, which fact the petitioner was aware of at the time of filing the petition.        

 

The courts also revoke grants on the grounds that the same has become inoperative or useless. In In the Matter of the Estate of Njau Ndungi (deceased) Nairobi HCP&A No. 863 of 1991, Aluoch J revoked a grant because it was meant for the subdivision of a certain parcel of land which had already been subdivided and transferred by the time the grant was obtained. In In the Matter of the Estate of Mwangi Mugwe alias Elieza Ngware (deceased) Nairobi HCSC No. 2018 of 2001, the application before the court was for the substitution of a deceased administrator. Khamoni J found that the procedure adopted was improper and held that the appropriate procedure should be an application under section 76 of the Law of Succession Act for the revocation of the grant on the ground that it had become useless and inoperative following the demise of its holder. In In the Matter of the Estate of Elizabeth Wamaitha Ngaruiya (deceased) Nairobi HCSC No. 2499 of 2001, the only asset quoted as making up the estate of the deceased was a parcel of land with respect to which the deceased had a registered overriding interest. Waweru J found that the overriding interest died with the deceased and the grant made for the administration of the asset was therefore useless and had to be revoked. 

 

Lack of diligence in administering the estate, failure to apply for confirmation of the grant within one year and failure to produce into court accounts or inventories as may be required of them are the other ground for revoking a grant. In In the Matter of the Estate of Mohamed Mussa (deceased) Mombasa HCSC No. 9 of 1997 (Khaminwa J), the grant was revoked because the administrators had not kept any records of accounts of their administration and one of the administrators was not capable of discharging her duties on grounds of poor mental health and old age. In In the Matter of the Estate of Lydia Karuru Ahmed (deceased) Mombasa HCP&A 122 of 2001, Khaminwa J revoked a limited grant as the two administrators were engaged in disputes over the utilisation of income from the estate. They had also failed to render any account of the affairs of the estate, although it is not clear if the court had required them to do so. Where there are several administrators in respect of the same estate the expectation is that they would always work together and generally act jointly. If it becomes apparent that they cannot act jointly the way out should be to apply for revocation of the grant (In the Matter of the Estate of Joseph Muchoki Muriuki (deceased) Nyeri HCSC No. 396 0f 1999 (Khamoni J)). 

 

A court faced with an application for revocation of grant may make such orders, as it deems fit and just given the circumstances of the case. Rawal J in In the Matter of the Estate of Esther Wanjiru Mucheru (deceased) Nairobi HCSC No. 1417 of 1992 and Khamoni J in In the Matter of the Estate of Thareki Wangunyu also known as Thareka Wangunyo Nairobi HCSC No. 1996 of 1999 stated that section 76 of the Law of Succession Act is discretionary, it gives the court discretion to revoke or annul a grant. The court is not bound to revoke the grant even where a case is made out under section 76. In Kipkurgat arap Chepsiror and  others vs. Kisugut arap Chepsiror CACA No. 24 of 1991, the court declined to grant the prayer for revocation, but instead entered the names of the applicants in the grant as beneficiaries. They had sought an order of revocation on the ground that their names had been omitted from the list of the survivors of the deceased. In In the Matter of the Estate of Jonathan Mutua Misi (deceased) Machakos HCP&A 95 of 1995 (Mwera J), the applicant sought revocation of grant on the grounds that the grant had been obtained on false statements and on concealment of important matter from the court, to wit that the applicant was a survivor and heir of the deceased. The court found that the applicant was indeed a survivor and heir of the deceased, but instead of ordering the revocation of the grant directed that the applicant’s name be included in the list of heirs and survivors. In In the Matter of the Estate of Thareki Wangunyu also known as Thareka Wangunyo Nairobi HCSC No. 1996 of 1999, Khamoni J found that the name of the applicant had been omitted from the list of those who had survived the deceased. Rather than revoke the grant, the court ordered that the applicant’s name be included in the list of beneficiaries.

 

In In the Matter of the Estate of Gathima Chege (deceased) Nairobi HCSC No. 1955 of 1996 (Kamau J), the court found that the applicants, the married daughters of the deceased, had been excluded from the proceedings for the grant and the distribution of the estate in contravention of sections 35, 38, 40 and 41 of the Law of Succession Act, and rules 26 and 40(8) of the Probate and Administration Rules. However, the court declined to revoke the main grant, but instead cancelled the confirmed grant and ordered the parties to commence fresh proceedings for the confirmation of the grant. In In the Matter of the Estate of John Kamau Gichuhi (deceased) Nairobi HCSC No. 833 of 2003, Waweru J, although convinced that the grant had be procured by concealment from the court of a material fact, to wit that the applicants were also survivors of the deceased, decided not to revoke the grant. Instead, he set aside the order confirming the grant and cancelled the certificate of confirmation of grant, thus reopening the issue of the distribution of the estate to enable the applicants make their case for a share of the estate. In In the Matter of the Estate of Wilson Wamagata (deceased) Nbi HCSC No. 261 of 1998, Githinji J, in an application for revocation of grant for failure to seek confirmation within a year of its making, declined to revoke the same, but cancelled the confirmation of the grant.

 

(ii) Procedure for Revocation Of Grant

Rule 44 of the Probate and Administration Rules sets out the procedure for the revocation of a grant. Any person seeking to have a grant revoked or annulled should apply to the High Court for the relief by way of summons for revocation (In Re Estate of Murimi (Deceased) (2002) 2 KLR 158 (Khamoni J). Where the grant was issued through the High Court, the application should be made through the registry and in the cause in which the grant was issued. Where the grant was issued by a resident magistrate, the application should be through the High Court registry situated nearest to that resident magistrate’s registry. In In Re Estate of Murimi (Deceased) (2002) 2 KLR 158 Khamoni J stated that if the grant sought to be revoked was made by a resident magistrate, the directions given by the High Court, for the hearing of the application, should include an order that the relevant case file from the resident magistrate’s court be brought to the High Court. According to Kamau Ag.J in In the Matter of the Estate of Muriranja Mboro Njiri Nairobi HCSC No. 890 of 2003, the gazettement of the making of the application for grant does not operate as a bar to an application for revocation under section 76 of the Act.

 

The revocation order may be sought, according to section 76 and rule 44, by any person interested in the estate of the deceased person. There is no agreement in the High Court on who is competent to bring the application. A section of the High Court is of the view that the person must have locus standi to bring the application. Koome J, for example, stated in In the Matter of the Estate of Gichia Kabiti (deceased) Nairobi HCSC No. 2559 of 2002 that the persons who have priority in law to apply for grant of representation are set out in section 66 of the Law of Succession Act and the order of preference is as set out in the provision. The surviving spouse takes preference over every body else, followed by blood relatives entitled upon intestacy. Trust corporations and creditors rank last in the list. Kamau J, on the other hand, in In the Matter of the Estate of Hemed Abdalla Kaniki (deceased) Nairobi HCSC No. 1831 of 1996 took the view that section 76 is open to any person who may be interested in the estate of the deceased person, and not just to the class of persons mentioned in section 66. In his opinion section 76 and rule 44 are intended to determine greater fundamental legal issues with a view to ensure the proper administration and finalisation of the estate. According to Koome J, a person coming to court not as an heir of the deceased, or at any as one of the persons mentioned in section 66, but as a claimant in constructive or implied trust has no standing to bring the revocation application (In the Estate of Murathe Mwaria (deceased) Nairobi HCSC No. 825 of 2003 (Koome J)). To Kamau J such an applicant would have the requisite locus standi.

 

Both sections of the High Court are right to an extent on who should bring revocation proceedings. The wording of section 76(a) (b) and (c) limits these provisions to the making of grants. Proceedings founded on these provisions naturally raise the question who should the grant be made to, bringing into consideration section 66 of the Law of Succession Act. It is only the persons listed in section 66 who can legitimately bring applications under section 76(a) (b) and (c) of the Act challenging the propriety of the grant making process. Persons who are not qualified to apply for grant would have no basis for challenging the making of the grant. On the other hand, section 76 (d) and (e) are concerned with the administration of the estate. Any person interested in the estate has a stake in its administration and it would appear that such a person would have sufficient standing to seek revocation the grant under section 76 (d) and (e). 

 

A person who is not really challenging the propriety of the grant or the process under which it was obtained or the manner the estate is being administered, but has other concerns or worries should not seek the order. Mulwa J in In the Matter of the Estate of Fatuma binti Mwanzi Umri (deceased) Nairobi HCP&A 21 of 1994 dismissed an application by a brother of the deceased who wanted a grant made to a son of the deceased revoked. His complaint appeared to be that as a brother of the deceased he was entitled to be the administrator of the deceased’s estate. The court’s view was that he ought to have brought an application under section 26 for reasonable provision. 

 

In In Re Estate of Ngugi (deceased) (2002) 2 KLR 434, Khamoni J pointed out that where the complaint of the person applying for revocation relates to what happened during the confirmation process, revocation or annulment of the grant should not be sought as the certificate of confirmation of a grant can be dealt with without having to cancel the grant of representation. The court said that it should always be borne in mind that there are two grants, the original grant and the confirmed grant. Where the applicant’s complaint is that the confirmation process was flawed, only the certificate of confirmation  issued thereafter or the order made during the confirmation hearing should be revoked or set aside. In In Re Estate of Gitau (deceased) (2002) 2 KLR 430, Khamoni J dismissed the revocation application brought on the ground fraud and concealment of important matter, because the applicants were complaining about the distribution of the estate. The court pointed out that it is not proper to use section 76 where the applicant is challenging the distribution only. In In the Matter of the Estate of Justus Wangai Muthiru (deceased) Nairobi HCSC No. 1949 of 2001, Waweru J opted to cancel the certificate of confirmation rather than revoke the grant because the applicant appeared to be complaining about the propriety of the confirmation proceeding.  Similarly, Githinji J in In the Matter of the Estate of Maria Wanja Njaungiri alias Wakahu Muthara (deceased) Nairobi HCSC No. 2422 of 1995, rather than revoke the grant as prayed elected to cancel the confirmation instead since the applicant was complaining about the confirmation process. It was stated by the defunct Court of Appeal for East Africa in Saleh bin Mohamed bin Omar Bakor vs. Noor binti Sheikh Mohamed bin Omar Bakor (1951) 18 EACA 30 (Sir Barclay Nihill P, Sir Newnham Worley VP and Lockhart-Smith JA), that a beneficiary is entitled to follow the assets into the hands of the person wrongly receiving them without necessarily revoking the grant of  representation. 

 

At the other end of the spectrum, Aluoch J in a number of decisions revoked grants under section 76 where the applicants were complaining about distribution and the confirmation process. In In the Matter of the Estate of Isaac Kireru Njuguna (deceased) Nairobi HCSC No. 1064 of 1994, the applicants were unhappy with the distribution of the assets as proposed during the confirmation process. Their complaint was that not all the assets were taken into account. It was also established that the adult survivors of the deceased had not consented to the mode of distribution. Aluoch J revoked the grant under section 76, saying it was up to the deceased’s family to either retain the previous administrators or pick new ones. In In the Matter of the Estate of Gitau Chege Kibera (deceased) Nairobi HCSC No. 1463 of 1991, the application was founded on fraud and concealment of material information. Although Aluoch J was satisfied that the grant had been obtained properly, the grant was revoked on the ground  that the confirmation process was flawed.  Interestingly, the court directed that a fresh grant be issued to the holders of the revoked grant. Koome J, in In the Matter of Joseph Kimemia Gichuhi (deceased) Nairobi HCSC No. 1072 of 2002, similarly revoked a grant, that had been made properly, on the ground that its confirmation was contrary to the provisions of the law. It would be improper to revoke a grant because of problems with the confirmation process; the Law of Succession Act has clear provisions for addressing flaws in the confirmation process. Needless to say that the revocation provisions give the court discretion on the matter.

 

Even where the revocation is by the court on its own motion, the same must be founded on the grounds set out in section 76 of the Law of Succession Act. In Isabella Gichugu Matheka and another vs. Eric Muthui Matheka Nairobi CACA No. 304 of 2002 (Omolo, O’Kubasu and Onyango Otieno JJA), the Court of Appeal of Kenya held that even where revocation is by the court on 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 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 or failed to produce to court such inventory or account of administration as may be required. In that case the High Court had, during the confirmation proceedings, revoked the grant made to the widow and daughter of the deceased after making a finding that the protestor to the confirmation was a son of the deceased by another woman, and ordered that a new grant be issued to the three of them. The High Court often goes round this position seeking refuge behind the inherent powers provisions, especially rule 73 of the Probate and Administration Rules (In the Matter of the Estate of Amos Kimondo Ngotho (deceased) Nakuru HCSC No. 287 of 1998 (Rimita J).

 

The revocation provisions provide for revocation or annulment. This means that the application brought before the court should be either for revocation or for annulment. Waki J in In the Matter of the Estate of Yusuf Mohamed (deceased) Nairobi HCP&A 434 of 1995 said that there is a difference between annulment and revocation and the applicant must chose the one or the other. Annulment entails a declaration that the document never existed and had no legal effect while revocation simply means cancellation or withdrawal. Both probate law practitioners and probate courts use the terms interchangeably. Ondeyo J in In the Matter of the Estate of Karanja Gikonyo Mwaniki (deceased) Nakuru HCMisc. 245 of 1998 quite properly annulled the grant made by the a Resident Magistrate because it was a nullity made by a court in excess of its jurisdiction. 

 

There is no time limitation for bring revocation proceedings. Kamau J in In  the Matter of the Estate of Hemed Abdalla Kaniki (deceased) Nairobi HCSC No. 1831 of 1996 and the Court of Appeal in Elizabeth Kamene Ndolo vs. George Matata Ndolo Nairobi CACA No. 128 of 1995 (Gicheru, Omolo and Tunoi JJA) stated that there is no statutory time limit for commencing the application for revocation.  In In the Matter of the Estate of Gathima Chege (deceased) Nairobi HCSC No. 1955 of 1996, Kamau J added that the revocation proceedings may be commenced long after the estate of the deceased has been distributed, the consequences notwithstanding. This however should be subject to the test of reasonable time. 

 

 (iii) Effect of Revocation of Grant

The effect of revocation of a grant is mainly felt by personal representatives, debtors of the estate, purchasers of the assets of the estate, and beneficiaries who have received assets from the estate. 

 

Section 92 of the Law of Succession Act protects the original personal representatives. In the event of the revocation of grant, the personal representative will not be personally liable, provided his acts, whether they are payment of debts or of legacies, are in good faith. Section 92(2) of the Law of Succession Act allows personal representatives to re-imburse themselves for payments that have been made out of their own funds in the course of the administration of the estate, provided that such payments might properly be made by a subsequent grantee. The personal representative may be required to compile and ensure an appropriate and satisfactory account of the administration prior to the revocation of the grant for the benefit of the in-coming personal representative (In the Matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias Mwaura Mbura (deceased) Nairobi HCSC No. 935 of 2003 (Kamau J) and In the Matter of the Estate of Yusuf Mohamed (deceased) Mombasa HCP&A No. 434 of 1995 (Waki J)) . 

 

Section 92(2) of the Law of Succession Act also protects debtors of the estate who in good faith made payments or dispositions to the personal representative. Section 93(1) of the Law of Succession Act provides that transfer of any interest in property, whether real or personal, by the original personal representative remains unaffected by the revocation of the grant, even where the purchaser has notice that all the debts, liabilities, expenses which take priority, duties and legacies of the deceased have not been discharged or provided for (In the Matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias Mwaura Mbura (deceased) Nairobi HCSC No. 935 of 2003 (Kamau J) and In the Matter of the Estate of Yusuf Mohamed (deceased) Mombasa HCP&A No. 434 of 1995 (Waki J)) . 

 

The Law of Succession Act, however, does not protect beneficiaries who have received assets from the estate prior to the revocation of the grant. It would appear that the common law position applies to require that such beneficiaries, who have been over paid or wrongly paid, return the property or refund the estate, even if they have dissipated the property. 

 

14.5 Applications under the Public Trustee Act

Any person to whom the court may have committed the administration of the estate of a deceased person, if no grant had been made to the Public Trustee, may apply to the court under section 9(1) of the Public Trustee Act, for the revocation of the grant made to the Public Trustee and for a grant to himself. The courts may, following such an application, revoke the grant and issue another to the applicant (In the Matter of the Estate of Basen Chepkwony (deceased) Nairobi HCSC No. 842 of 1991 (Koome J)). Another application under section 9 of the Public Trustee Act is one asking the court to decide a dispute as to the succession of a deceased person’s estate (Anastacia Mutheu Benjamin vs. Lakeli Benjamin and another Nairobi CACA No. 6 of 1979 (Madan, Law and Potter JJA)). 

 

14.6  Family Provisions

Under section 26 of the Law of Succession Act persons claiming to be beneficially entitled and who are totally disinherited or inadequately provided for, whether under the terms of a will or in intestacy, may move the High Court appropriately for reasonable provision out of the estate. This is discussed exhaustively in Chapter 18.

 

14.7 Applications under Order XXXVI rule 1 of the Civil Procedure Rules

Under rule 41(3), where at the hearing of a summons for confirmation of a grant an issue arises, which cannot be conveniently determined by the court at that stage, relating to the identity, share or estate of a person claiming to be beneficially interested in such share or estate, or which relates to any condition or qualification attaching to such share or estate, the court may appropriate  and set aside the particular share or estate pending the determination of the issue under Order XXXVI rule 1 of the Civil Procedure Rules (rule 41(3) of the Probate and Administration Rules). In In the Matter of the Estate of Mary Gachuru Kabogo (deceased) Nairobi HCSC No. 2830 of 2001, Ang’awa J the properties that are not disputed are confirmed, but those that are disputed are subjected to a hearing under Order XXXVI as a separate cause to enable an appeal to the Court of Appeal. Ang’awa J in In the Matter of the Estate of Mariko Marumbi Kiuru (deceased (deceased) Nairobi HCSC No. 201 of 1997 similarly stated that an issue relating to the rights of widows to the property of their deceased husband should be dealt with separately under  Order XXXVI instead of the confirmation proceedings. 

 

The proceedings under Order XXXVI rule 1 of the Civil Procedure Rules take the form of an originating summons (In the Estate of Sheikh Mohamed bin Ali bin Saad El-Mandiry (deceased) (1938) 18(1) KLR 124 (Lucie- Smith J). They are brought either by the personal representative of the deceased or a residuary legatee or any person claiming to be beneficiary entitled seeking the determination of the question or questions in issue. All the persons likely to be affected by an order in these proceedings should be made a party to the originating summons. An adjudication upon an originating summons brought under Order XXXVI is an ‘order’ and not a ‘decree’ according to the former Court of Appeal for East Africa in In the Matter of the Trusts of the Will of the Late Harry Edward Watts (1955) 22 EACA 177 (Sir Newnham Worley VP, Sir Kenneth O’Connor CJ and Sir Enoch Jenkins JA) and Gurdial Singh Dhillon vs. Sham Kaur and others (1960) EA 795  (Sir  Kenneth O’Connor P, Sir Alistair Forbes VP and Crawshaw JA). According to Nyamu J in In Francis Kamau Mbugua and another vs. James Kinyanjui Mbugua Nairobi HCCC No. 111 of 2004 (OS), although a beneficiary is  technically entitled to commence legal proceedings under Order XXXVI rule 1, he is only entitled to do so where he is claiming under a deed or instrument in order to have any question affecting his rights or interest in law determined.

 

According to Khamoni J in In Re Estate of Karanja (2002) 2 KLR 34, Order XXXVI is not applied by rule 63 of the Probate and Administration Rules, but by virtue of rule 41 (3) of the Probate and Administration Rules. The judge further pointed out that the persons who come under XXXVI are objectors, protestors, beneficiaries and applicants for provision. Koome J, while handling a different application in the same matter, that is to say In the Matter of the Estate of James Karanja Kioi (deceased) Nairobi HCSC No. 1366 of 1995, implied that a person claiming to be a widow of the deceased can bring an application under Order XXXVI, premised on the Married Women’s Property Act,  seeking a determination of her share in the matrimonial property left behind by the deceased.

 

In 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), the court was asked to determine whether an administrator of an estate is a trustee for sale of the immovable property and whether he is bound by the provisions of the succession legislation which appoints him as administrator. In Latif Suleman Mohamed vs. K. J. Pandya and others (1963) EA 416 (Sir Ronald Sinclair P, Sir Trevor Gould Ag. VP and Newbold JA), the executor took out an originating summons for determination of questions who was entitled, and to what shares, to two plots and how the property of the deceased was to be divided. In Gitau and two others vs. Wandai and five others (1989) KLR 231 (Tanui J) the issues for determination included the ascertainment of the shares of a deceased person in a specified property. In In the Matter of the Estate of Huseinbhai Karimbhai Anjarwalla Mombasa HCP&A No. 118 of 1989 the originating summons was an executrix against persons, who held the property of the estate but had refused to release it or details of it to her, seeking to force them to release the information and the property of the estate to enable her to carry out her duties as the executrix.

 

In John Njau vs. Gladys Gachambi Njoroge and others Nairobi HCCC No.2003 (OS) (Koome J), the application was brought against the administrators of the estate of the deceased, seeking the distribution of the estate, declaration of trust property and injunctive orders. In Mary Njoki vs. John Kinyanjui Mutheru and others Nairobi CACA No. 71 of 1984 (Madan, Kneller and Nyarangi JJA), the applicants sought orders to permit the Public Trustee to apply for grant of letters of administration alone to the estate of the deceased. To the exclusion of the woman who was cohabiting with the deceased and a further order that she be declared no beneficiary of the deceased’s estate. In Esther Mbatha Ngumbi vs. Mbithi Muloli and others Nairobi CACA No. 207 of 1995 (Gicheru, Tunoi and Shah JJA),  the application was to determine heirs and whether or not they were entitled to a share of the estate. In Kamrudin Mohamed and another vs. Hilda Mary Coelho and others (1965) EA 336 (Sir Udo Udoma CJ), the court was called upon to determine whether a beneficiary under the will of the deceased was entitled to receive certain premises belonging to the deceased. In Rebecca Nyakeru Nyongo and others vs. Simon Kamau Gitau Mombasa CACA No. 245 of 1996 (Gicheru, Omolo JJA and Bosire Ag. JA),the applicants sought to recover  money or property owed to the estate, the dissolution of a partnership to which the deceased was a member, the taking of the accounts of the partnership and the transfer of the partnership shares. In.In the Matter of the Estate of Charles Odhiambo Odiawo, deceased Nairobi HCSC No. 1525 of 1999 (Koome J), the court was asked to give directions on the investment of  the proceeds of moneys held in bank account in the name of a minor.   In In the Matter of the Estate of the late Mzee Almasi Mukira (deceased) Mombasa HCCC No. 426 of 2002 (Tutui COA), the applicants sought an injunction to restrain one of the beneficiaries under the said will. 

 

In In the Estate of Sheikh Fazal Ilahi (1957) EA 697 Connell J expressed the opinion that where the validity of a will is contested an originating summons under Order XXXVI would not be the appropriate procedure for dealing with the matter. The correct procedure is by an action to which the parties prejudiced by the will have been made parties. In James Njoro Kibutiri vs. Eliud Njau Kibutiri (1982-88) 1 KLR 60 (Law and Potter JJA, and Hancox Ag. JA), the Court of Appeal held that an originating summons is inappropriate when the issues raise complex and contentious questions of fact. Law JA stated that the procedure by way of originating summons is intended to enable simple matters to be settled by the court without the expense of bringing an action in the usual way, not to enable the court to determine matters which involve  a serious question.

 

The court may invoke inherent jurisdiction to make orders under Order XXXVI of the Civil Procedure Rules to as may be necessary for the ends of justice, even when the matter before it is not brought under that Order (In the Matter of Peter Gicheru Kagotho (deceased) Nairobi HCSC No. 376 of 1983 (Githinji J)). 

 

14.8  Applicability of the Provisions of the Civil Procedure Act and the Civil Procedure 

Rules to Succession Causes

The Law of Succession Act, inclusive of its support subsidiary legislation, is a comprehensive code of substantive and procedural succession law (In the Matter of David Wahinya Mathene (deceased) Nairobi HCSC No. 1670 of 2004 (Koome J)). Section 2(1) of the Act provides that the Act constitutes the law of Kenya in respect of and has universal application in all cases of testate and intestate succession and to the administration of estates, except where otherwise provided in the Act or any other written law. According to Nyamu J in Francis Kamau Mbugua and another vs. James Kinyanjui Mbugua Nairobi HCCC No. 111 of 2004 (OS) the Law of Succession Act is a complete code except as regards third party rights or strangers, who should have recourse to provisions outside the Act. The court asserted that in the event of any conflict between the Law of Succession Act, section 47 in particular, and order XXXVI of the Civil Procedure Rules section 47 of the Act of the Law of Succession Act should prevail.

 

Probate proceedings are not, in the strict sense, civil proceedings. They are sui generis or special proceedings, and they are, therefore, not dependent on the Civil Procedure Act and its support subsidiary legislation. The probate court exercises its jurisdiction under the Law of Succession Act and its subsidiary legislation. The provisions of the Civil Procedure Act and the Civil Procedure Rules apply, and the probate court exercises jurisdiction under them, only to such extent as may be allowed by the Law of Succession Act and the Probate and Administration Rules. No provisions of the Civil Procedure Act have been adopted by the Law of Succession Act as being applicable to probate causes, but some provisions of the Civil Procedure Rules, set out in rule 63(1) of the Probate and Administration Rules (In the Matter of the Estate of Ruth Wamucii (deceased) Nairobi HCP&A No. 1012 of 1992 (Ang’awa J), are of application in succession causes. The relevant provisions are Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX of the Civil Procedure Rules. 

 

The High Court has stated that the other provisions of the Civil Procedure Act and the Civil Procedure Rules, that is those not mentioned in rule 63 of the Probate and Administration Rules, are of no application at all.. In In the Matter of the Estate of Joseph Mwinga Mwaganu (deceased) Nairobi HCSC No. 1814 of 1996, Khamoni J stated, of an application brought under Order XLI rule 4 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, that the said provisions did not apply as administration proceedings are governed by their own rules of procedure, specifically the Probate and Administration Rules (In the Matter of the Estate of Angeline Anyango Obanda (deceased) Nairobi HCSC No. 2747 of 1997 (Ang’awa J)). The Civil Procedure Act and Rules only apply where allowed by rule 63 of the Probate and Administration Rules. A party inviting the court to invoke its inherent powers should move under rule 73 of the Probate and Administration Rules and not section 3A of the Civil Procedure Rules.

 

Koome J, in In the Matter of Joram Waweru Mogondu (deceased) Nairobi HCSC No. 2721 of 2002, declined to make orders for execution of an order of the probate court sought in an application brought under Order XXI of the Civil Procedure Rules on the basis that Order XXI has not been imported into the Law of Succession Act. Waweru J, in In the Matter of the Estate of Mathu Ngwaro alias Nikola (deceased) Nairobi HCSC No. 45 of 1994, declined to grant an application for the setting aside of an order made order XLV of the Civil Procedure  Rules on the grounds that order XLV is of no application in succession causes. 

 

In In Re Estate of Kilungu (deceased) (2002) 2 KLR 136 Khamoni J held that the probate court exercising jurisdiction conferred by the Law of Succession Act cannot entertain an application for injunction brought under Order XXXIX of the Civil Procedure Rules. This is so because the Probate and Administration Rules in rule 63 does not allow the application of Order XXXIX in probate matters. The court also stated that section 3A of the Civil Procedure Act does not apply either since the rule 73 of the Probate and Administration Rules gives the probate court inherent powers in succession causes brought under the Law of Succession Act. The point was also made that rule 73 cannot be used to do what the Law of Succession Act does not allow. The position taken by Khamoni J in In Re Estate of Kilungu (deceased) (2002) 2 KLR 136 compares with that adopted by Wendoh J in In the Matter of the Estate of Makali Nzyoka Machakos HCP&A No. 60 of 1997. It was held in that matter that an application for injunction brought in probate proceedings was incompetent as order XXXIX of the Civil Procedure Rules is not applicable in probate proceedings since order XXXIX of the Civil Procedure Rules is not one of the orders listed in rule 63 of the Probate and Administration Rules. 

 

This contrasts with the decisions in several probate matters where the High Court granted restraining orders, but without indicating the law under which the court was acting. In In the Matter of the Estate of Gerald Kuria Thiari Nakuru HCSC No. 127 of 1885, Lessit J gave orders directing that there shall be no disposal of or intermeddling with the estate by the petitioner or her servants or other persons. In In the Matter of the Estate of Kitema Mutiso Machakos HCP&A No. 1 ‘B’ of 2004, Wendoh J gave orders restraining a clan from interfering with the estate of the deceased and, in particular,  from evicting one of the claimants from the suit land. Similar orders were made in In the Matter of the Estate of David Murage Muchina (deceased) Nairobi HCSC No. 2077 of 2002, where Kamau J restrained the grantee from intermeddling in any manner whatsoever with any of the  assets of the estate of the deceased until a pending application for revocation of grant was heard and disposed of. Hayanga J, however, in In the Estate of Mohamed Saleh Said Sherman also known as Mohamed Swaleh Sherman (deceased) Mombasa HCSC No. 145 of 1998 granted injunctive orders under what he called the court’s ‘inherent jurisdiction or open jurisdiction as given under section 47 of the Law of Succession Act’. 

(TO BE REVISITED FOR THE MAKING OF COMMENTS ON THE NECESSITY OF GIVING CLEAR POWERS TO THE COURT FOR THE PURPOSE OF SAFEGUARDING  ESTATES FROM DIMUNITION PENDING THE MAKING OR REVOCATION OF GRANT OR OTHER ORDERS).

 

In In Re Estate of Njuguna (Deceased) (2002) 2 KLR 292 (Khamoni J) the court pointed out that there are no provisions under the Law of Succession Act and the Probate and Administration Rules empowering the Registrar of the High Court or his deputy to perform the duties and carry out the responsibilities of a personal representative of the estate of a deceased person. It was further emphasised that the Civil Procedure Act and the rules made under it do not apply to probate matters except where expressly provided under the Law of Succession Act. Khamoni J’s order contrasts with that made by Aganyanya J in In the Matter of Samuel Munjuga Njuguna (deceased) Nairobi HCSC No. 348 of 1989, where he directed that a party sign certain documents within a specified period failing which the documents be executed by the Deputy Registrar of the High Court.

 

For applications brought under order XLIV of the Civil Procedure Rules, the party applying for review of a decree or order has to draw up the decree or order that is sought to be reviewed and attach it to the application (In the Matter of the Estate of Waruru Kairu Nairobi HCSC No. 2525 of 1997 (Koome J). The application must also meet the substantive requirements of an application brought under order XLIV of the Civil Procedure Rules. In In the Matter of the Estate of Gerishon John Mbogoh Nairobi HCSC No. 989 of 1999, Visram J declined to review his orders dismissing objection proceedings. The party seeking review moved the court on the ground of discovery of new evidence, being the decree absolute and proceedings in matrimonial proceedings that she had been unable to produce during the objection proceedings. The court found that what the applicant sought to place before the court was not new evidence; the party was in fact attempting to produce supplemental evidence.  Ang’awa J in In the Matter of the Estate of Late Simon Timaiyo Mokosio also known as Simon Nemokoosio (deceased) Nairobi HCSC No. 1063 of 1987, stated that order XLIV of the Civil Procedure Rules can be used for the purpose of getting a grant rectified or errors in it corrected. In In the Matter of the Estate of Hannah Nyangahu Mwenja (deceased) Nairobi HCP&A No. 901 of 1996 (Koome J), it was stated that a court’s decision cannot be reviewed to change its character and to take away a party’s right of inheritance. Where the result of a review is  likely to amount to a major departure from the original decision, it would be more prudent to bring an appeal instead.  

 

The position adopted by the High Court over the applicability of the Civil Procedure Act in succession causes is often complicated by the application by the same court of some provisions of the Civil Procedure Act and the Civil Procedure Rules which are not allowed by either the Law of Succession Act and the Probate and Administration Rules. In In the Matter of the Estate of Stephen Kemei Asis Eldoret HCSC No. 32 of 1997, Etyang J held that a succession cause filed and pending before a resident magistrate’s court can be properly transferred to the High Court pursuant to the provisions of section 18 of the Civil Procedure Act. Koome J in In the Matter of the Estate of Basen Chepkwony (deceased) Nairobi HCSC No. 842 of 1991, directed the transfer of a succession cause from the High Court at Nairobi to the High Court at Eldoret. She, however, did not indicate the law which empowered her to make such an order. In In the Matter of the Estate of the Late Esther Wairimu Mahihu Mwangi (deceased) Nairobi HCSC No. 1053 of 1992, Ang’awa J directed the Deputy Registrar to record a consent order under order XLVIII of the Civil Procedure Rules, yet order XLVIII is 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 of Appeal has also been applying provisions of the Civil Procedure Rules which are not applied to probate causes by rule 63 of the Probate and Administration Rules. The Court of Appeal in Macharia vs. Wanjohi and another (2004) 1 EA 111 (Omolo JA, Onyango Otieno and Ringera AJJA), for example, was of the view that there was nothing wrong with the court referring a dispute on the question of entitlement to arbitration by the provincial administration under Order XLV of the Civil Procedure Rules.  The Court of Appeal in Thumbi Weru and others vs. John Wachira Mwaniki Nyeri CACA No. 191 of 1998 (Kwach, Akiwumi and Shah JJA), similarly upheld the application of Order XLV of The Civil Procedure Rules although the same is not one of the provisions of the Civil Procedure Rules envisaged by rule 63 of the Probate and Administration Rules.

 

Further, the High Court and the Court of Appeal hold divergent positions on the question of  the applicability of the Civil Procedure Act and the Rules to appeals in succession causes. The High Court has, in various decisions, held that the Law of Succession Act does not give a right of appeal from the decision of the High Court to the Court of Appeal, and therefore no appeal can lie directly from a decision of the High Court to the Court of Appeal (In the Matter of Habakuk Ochieng Adede (deceased) Nairobi HCSC No. 721 of 2000 (Ang’awa J), In the Matter of the Estate of Mariko Marumbi Kiuru (deceased) Nairobi HCSC No. 2011 of 1997,  In the Matter of the Estate of James Gitumbi Kagwiri (deceased) Nairobi HCSC No. 782 of 1999 (Waweru J)) and In the Matter of the Estate of Mohamed Saleh Said Sherman also known as Mohamed Swaleh Sherman (deceased) Mombasa HCSC No. 145 of 1998 (Hayanga J)) . On the other hand, the Court of Appeal has held that there is a right of  appeal from the decision of the High Court to the Court of Appeal arising from section 47 of the Law of Succession Act as read with the sections 66 and 75 of the Civil Procedure Act (Makhangu vs. Kibwana (1995-1998) 1 EA 175 (Cockar CJ, Kwach and Shah JJA), Benard Gachoki Kaboi vs. John Kaburachi Kaboi and others Nairobi CACA No. NAI 244 of 2002 (Nyr 25/02) (Keiwua JA), Carmella Wathugu Karigaca vs. Mary Nyokabi Karigaca  Nairobi CACA No. 30 of 1995 (Tunoi, Lakha and Pall JJA)  and George Itotia Ng’ang’a vs. Mary Wanjiku Kimaru Nairobi CACA No. NAI 115 of 2000 (Shah JA)).

 

According to the Court of Appeal in Raphael Jacob Samuel vs. The Public Trustee and others Nairobi CACA No. 16 of 1980, the use of a wrong procedure does not necessarily invalidate proceedings, if it does not go to jurisdiction or cause undue prejudice. The Court of Appeal came to a similar finding in Njenga Chogera (the Administrator ad Colligenda bona of the Estate of the Late Chogera Kimani) vs. Maria Wanjira Kimani and others Nairobi CACA No. 322 of 2003 (O’Kubasu , Waki and Deverell JJA), where it was alleged that the plaintiff’s claim ought to have been brought by way of originating summons under Order XXXVI of the Civil Procedure Rules instead of by way of plaint.

 

14.9 Viva Voce Evidence

The hearing of the objection proceedings and the applications mentioned above may be by oral submissions or by both submissions and viva-voce evidence. Shah JA in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. 213 of 1997, stated there is a golden rule that evidence given viva voce and fully tested on cross-examination places the court in a better position to evaluate the same.  In In the Matter of Estate of Gerald Kuria Thiara Nakuru HCSC No. 127 of 1995, Lessit J, after considering the submissions made before her and the affidavits, decided that certain issues needed deeper exercitation and testing which can only be achieved by way of oral evidence. Oral evidence is usually subjected to cross-examination, during which the demeanour of the witnesses is scrutinised. In In the Matter of the Estate of Ndegwa Kariuki (deceased) Nairobi HCSC No. 2799 of 1999, after scrutinising the affidavit filed in support of the revocation application, Ang’awa J decided that since the affidavit contained considerable allegations of fraud the facts required to determine the issue necessitated the taking of viva voce or oral evidence. In In the Matter of the Estate of Joseph Muchiri Komu (deceased) Nakuru HCSC No. 441 of 1998, Ondeyo J directed that the matter be determined on viva voce evidence to establish certain issues which could not be disposed of through an application. In In the Matter of the Estate of David Wahinya Mathene (deceased) Nairobi HCSC No. 1670 of 2004, Koome J declined to allow viva voce evidence in objection proceedings on the grounds that the same is necessary only where the validity of a will is being challenged on the grounds of fraud or coercion or even incompetence.

 

14.10  Costs

As a rule, the costs of the action follow the event, that is they are to be borne by the losing party. To protect estates from being frittered away by protracted and unnecessary litigation by trustees and administrators the court should consider saddling the losing party with the costs (Abdulla Rehemtulla Waljee vs. Alibhai Hajj and another (1943) 10 EACA 6 (Sir Norman Whitley CJ, Wilson Ag CJ and Hayden J). The court, however, has an unfettered discretion under rule 69 of the Probate and Administration Rules as to the source from which costs should be paid. In In the Matter of the Estate of Sadhu Singh Hunjan (deceased) Nairobi HCSC No. 107 of 1994, Kuloba J took into account the relationship between the grantees and the applicants in deciding that each party bear their own costs. Koome J in In the Matter of the Estate of Francis Kiarie Ndirangu (deceased) Nairobi HCSC No. 82 of 2002, held that since the matter was a family dispute each party bear their own costs of the litigation.  In , In the Matter of Evanson Kiragu Mureithi (deceased) Nakuru HCSC No. 163 of 1995, Ondeyo J in an effort to promote  a spirit of reconciliation and forgiveness ordered that each party bear its own costs.

 

In Rustomji Kersasji Khursedji Sidhwa vs. Dinshaw Ruttonji Mehta and others (1934) 1 EACA 38 (Abrahams CJ, Lucie-Smith Ag. CJ and Horne J) it was considered appropriate to order payment of costs of an appeal from the portion of the estate which formed the subject matter of the appeal.   In In the Matter of the Estate of Amos Kiprono Sirma (deceased) Nakuru HCSC No. 231 of 1994, Rimita J, in an effort to avoid further ill-feelings in the family of the deceased, ordered that the taxed costs of the cause be paid from the part of the estate which was not subject to the deceased’s oral will, which was the subject of the litigation. 

 

Where the litigation is in effect caused by the actions of the deceased, it is likely that the costs will be borne by the estate. In Rashida Begum vs. Administrator General and another (1951) 18 EACA 102 (Sir Barclay Nihill P, Sir Newnham Worley VP and Pearson Ag. CJ), the former Court of Appeal for Eastern African held that the testator himself was responsible for the litigation by the manner he elected to dispose of his estate and awarded all the parties costs out of the general estate.. In Anastacia Mutheu Benjamin vs. Lakeli Benjamin and another Nairobi CACA No. 6 of 1979 (Madan, Law and Potter JJA), the appellant married the deceased  under Kamba customary before first getting her previous statutory marriage dissolved or annulled and it was held that she, by virtue of section 4 of the African Christian Marriage and Divorce Act and section 37 of the Marriage Act, had not capacity to contract another marriage with the deceased, and she was therefore not entitled to inherit his estate. With regard to costs the Court of Appeal found that the appellant had cohabited with the deceased for many years as his reputed wife and that she had also contributed substantial sums of money towards the cost of acquiring some of the assets making up the estate, and directed that the  appellant’s costs of the appeal and at the High Court be borne by the estate. Butler-Sloss J in In the Matter of the Estate of John G. Kinyanjui (deceased) Nairobi HCP&A No. 317 of 1984, made no order for costs against an objector since it was considered that the deceased had by his long association with the objector helped create the dispute that had to be resolved through the litigation.

 

Where the litigation is needlessly brought by the objector or applicant the estate should not be burdened with the said objector or applicant’s costs. In Karanja and another vs. Karanja (2002) 2 KLR 22 (Githinji J), in ordering that the objector bear her own costs the court considered that the objector had been the cause of the long and protracted litigation, she had no genuine reason for the objection , she had the benefit of  a very able and experienced counsel and at the very early stages of the matter the court had given directions on the valid grounds for challenging the validity of wills and codicils (which directions the objector ignored). Law JA in Raphael Jacob Samuel vs. The Public Trustee and others Nairobi CACA No. 16 of 1980 declined to award costs in favour of  one of the  successful parties on the grounds that they were responsible for the dispute in the first place. It was they who opposed the appellant’s petition for  grant and who lodged caveats against it forcing the Public Trustee to apply for a limited grant, which sparked the litigation culminating in the appeal before the court.  In In the Matter of the Estate of Riitho Mahira (deceased) Nairobi HCP&A No. 320 of 1991 costs were awarded against the protestor personally because in the opinion of the court he had caused the other beneficiaries to incur unnecessary costs.

 

Where the circumstances leading to or triggering the litigation  or the appeal are not caused by any of the parties the court would order that each party bear their own costs. In Thumbi Weru and others vs. John Wachira Mwaniki Nyeri CACA No. 191 of 1998 (Kwach, Akiwumi and Shah JJA), the Court of Appeal took into account that neither of the parties to the appeal had contributed to the woeful decision of the judge and ordered each party to bear their own costs.

 

Khamoni J in In Re Estate of Karanja (2002) 2 KLR 34 said that for the purpose of order XXV of the Civil Procedure Rules the petitioner may be regarded as a plaintiff while objectors, protestors, applicants seeking revocation of grant and reasonable provision may be regarded as dependants.

 

PART EIGHT: ADMINISTRATION OF ESTATES

CHAPTER FIFTEEN

 

15. COLLECTION, REALISATION AND MANAGEMENT OF ESTATES

15.1 Introduction

The administration of an estate entails collection and preservation of the estate; payment of the deceased’s funeral, testamentary and administration expenses and all the deceased’s debts and other liabilities; and the distribution of the estate among the beneficiaries. Apaloo JA in Stephens and another vs. Stephens and another (1987) KLR 125 stated that a personal representative of the deceased owes a duty to pay all the debts of the intestate and thereafter distribute the rest of the estate to the beneficiaries. The administration of an estate is the responsibility of the personal representatives of the deceased, whether the deceased died testate or intestate. The provisions relating to the administration of estates is Part VIII of the Law of Succession Act ( sections 44 to 95).

 

15.2 Powers and Duties of Personal Representatives

The Executor or administrator who has received grant of representation should represent the deceased or be the personal representative of the deceased for all purposes of the grant and all the property of the deceased should vest in him as the personal representative (section 79). In exercise of their powers and in the discharge of their duties personal representatives should, according to Kamau Ag. J in In the Matter of the Estate of David Murage Muchina (deceased) Nairobi HCSC No. 2077 of 2002, be afforded a freehand. In In the Matter of the Estate of the late James Shiraku Inyundo (deceased) Nairobi HCP&A No. 920 of 1986, Kuloba J stated that administrators must be left to administer the estate in the best interests of estate and beneficiaries, unless the administrators were committing wrongs to the estate.

 

The powers of the personal representatives are set out in section 82 of the Law of Succession Act. 

There is the power to enforce all causes of action that survive the deceased or arise out of his death for his estate. Case law shows that no person has a right to enforce any cause of action which survives the deceased or arises out of his death without a grant of representation (Troustik Union International and another vs. Mrs Jane Mbeyu and another Nairobi CACA No. 145 of 1990 (Apaloo CJ, Kwach, Cockar, Omolo and Tunoi JJA) and (Coast Bus Service Ltd vs. Samuel Mbuvi Lai Nairobi CACA No. 8 of 1998 (Gicheru, Tunoi and Shah JJA)). The Court of Appeal in Virginia Edith Wambui Otieno vs. Joash Ougo and another(1982-88) 1 KAR 1048, stated 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 at the date of inception. In Mary Mbeke Ngovu and another vs. Benard Mutinda Mutisya Machakos HCSC No. 352 of 1998, Mwera J held that the plaintiffs in that matter ought to have procured a grant to administer the estate of the deceased before bringing a suit for trespass. Any suit filed by or against personal representatives must name all the personal representatives as parties (Sargent vs. Gautama (1968) EA 338 (Sir Clement de Lestang VP, Duffus and Spry JJA). Mwera J in John Kasyoki Kieti vs. Tabitha Nzivulu Kieti and another Machakos HCCC No. 95 of 2001, held that the plaintiff in that matter had no capacity to sue in matters relating to his father’s property without first obtaining a grant of letters of administration. In the circumstances his suit was incompetent for lack of capacity.

 

 In Peter Maundu Mua vs. Leonard Mutunga and another Machakos HCCC No. 305 of 1995, Mwera J held that where a party to a suit dies and the cause of action survives, Order XXIII rule 3(1) of the Civil Procedure Rules requires that the legal representative of the deceased party be made a party in his place: such legal representative should be a person who has obtained a grant of representation making him the personal representative of the deceased. The court found that the wife and son of the deceased were not competent to continue with a suit commenced by the deceased as they could not be considered  the legal representatives of the deceased without first obtaining a grant of representation. The position taken by Mwera J in Peter Maundu Mua vs. Leonard Mutunga and another Machakos HCCC No. 305 of 1995contrasts with that of Tuiyot J in Ann Kathanga vs. Mohamed Mjahid t/a C-Line Company and another Meru HCCC No. 74 of 1998. In Ann Kathanga vs. Mohamed Mjahid t/a C-Line Company and another Meru HCCC No. 74 of 1998, a decision whose correctness is doubtful, Tuiyot J held that the applicant could be joined as a co-plaintiff  to a suit, brought to recover damages arising from her husband’s death, without a grant of representation so long as she was a widow of the deceased. In the opinion of the court, the deceased’s widow has got an interest in the deceased’s estate and on this ground alone she has a right to be added as a co-plaintiff to a suit without first obtaining a grant of representation. 

 

Where the deceased is survived by minors, a person seeking to file suit on behalf of the estate must comply with section 58 of the Law of Succession Act by applying for the grant, whether full or limited, jointly with other people. In Veronicah Mwikali Mwangangi vs. Daniel Kyalo Musyoka (2005) eKLR  (Ang’awa J), a suit commenced by a single legal representative in respect of an intestate survived by minor children was struck out, because the limited grant giving him the authority to act for the estate did not comply with section 58 of the Act, which requires that the grant in those circumstances should be granted to more than personal representatives.

 

With respect to grants of probate the will speaks from the date of death, and the plaintiff does not need to have the grant to commence action. Kasango J in Lalitaben Kantilal Shah vs. Southern Credit Banking Corporation Ltd Nairobi Milimani HCCC No. 543 of 2005, stated that under section 80(1) of the Act the executor derives his title from the will and the estate vests in him on the testator’s death and he can do any act before probate, which is a mere authentication of his title. There is also the power to sell all or any part of the assets vested in them – immovable property cannot be sold before the confirmation of grant; to assent, after confirmation of grant, to the vesting of property in the beneficiaries; and to appropriate, after confirmation of grant, any of the assets of the estate vested in them (In the Matter of the Estate of Erastus Njoroge Gitau (deceased) Nairobi HCSC No. 1930 of 1997 (Khamoni J).

 

The duties are set out in section 83 of the Law of Succession Act, and they are: to provide and pay out of  the estate expenses of a reasonable funeral for the deceased; to get in  or collect all free property of deceased, inclusive of debts owing to him and moneys payable to his personal representatives by reason of his death; to pay out, of the estate, all expenses of obtaining the grant and all other reasonable expenses of administration; to ascertain and pay out of the estate all the debts of the deceased; to apply for confirmation of grant within six (6) months from date of grant, the representative must produce to court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of the dealings in respect of the estate; distribute or retain in trust (for the minor beneficiaries) all assets remaining; and to complete the administration of the estate, after the date of confirmation of grant, in respect of all matters other than continuing trusts. 

 

15.3 Collection and Preservation of the Estate

Section 83(b) of the Law of Succession Act provides that it is the duty of personal representatives to collect in the assets of the deceased’s estate after a grant has been made to them (In the Matter of the Estate of Hemed Abdalla Kaniki (deceased) Nairobi HCSC No. 1831 of 1996). Waki J in In In the Matter of the Estate of Yusuf Mohamed (deceased) Mombasa HCP&A No. 434 of 1995 (Waki J), pointed out that under section 83 the personal representative has a duty to get in all the free property of the deceased and is at liberty to reasonably exercise the powers conferred by law in pursuit of such property. Free property is defined in section 2 of the Law of Succession Act to mean the property which the deceased was legally competent freely to dispose during his lifetime and in respect of which his interest has not been terminated by his death. In Shital Bimal Shah and two others vs. Akiba Bank Limited and four others (2005) eKLR, Emukule J stated that the expression ‘free estate’ as used in section 2 of the Law of Succession Act is not synonymous with the expression ‘unencumbered’ in the sense of the property being subject to a charge or lien, or other encumbrance.

 

Collection of assets involves the personal representatives in having the deceased’s property vested in their names.  Kamau Ag. J in In the Matter of the Estate of David Murage Muchina (deceased) Nairobi HCSC No. 2077 of 2002,  said that 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 wastage of or damage to the estate pending distribution; the estate should not at any time be in a state of limbo. Sections 94 and 95 of the Act make it an offence for a personal representative to neglect to get in any asset forming part of the estate or misapplies any such asset or subjects it to loss or damage. 

 

Khamoni J in Public Trustee vs. Jotham Kinoti and another Nairobi HCCC No. 3111 of 1985, stated that a grant of letters of administration gives authority to the grantee, which only covers the property disclosed in the succession cause. The grantee does not have authority to recover or collect assets which are not the subject of the succession cause, especially property which had been sold by the family before the appointment of the grantee as the administrator. 

 

Personal representatives must act with due diligence in the administration of the estate. This requires that they collect in the assets of the estate as soon as is practically possible, and take reasonable steps to collect all debts due to the deceased. This often entails commencing legal action against the debtors. The duty of personal representatives to collect in the deceased’s debts has to be read subject to the wide powers given by the Trustee Act, to compromise, settle or abandon debts. Personal representatives are also under a duty to take reasonable steps to safeguard or preserve the deceased’s estate. Valuables of the deceased should be removed for safekeeping. Kamau Ag. J in In the Matter of the Estate of Hemed Abdalla Kaniki (deceased) Nairobi HCSC No. 1831 of 1996, stated that until he is legally discharged, the personal representative is duty bound to take all reasonable and necessary steps and protect the estate of a deceased person from waste and damage so as to avoid an action in devastavit. 

 

Under rule 25(5) of the Probate and Administration Rules the court may at any time and from time to time require the personal representative to render to the court a true account of the estate of the deceased and of his administration of it. Under section 83(e) of the Law of Succession Act, the personal representatives are under a duty to produce to court a full and accurate inventory and account of the administration of the estate, if required to do so by the court on its own motion or on the application of any person interested in the estate. Apaloo JA in Stephens and others vs. Stephens and another (1987) KLR 125, stated  that upon being appointed as administrator one incurs the responsibility of honest, efficient and high minded dealing with regard to the estate. He incurs an obligation to account to the beneficiaries of his dealings in the property. On the facts of the case the Court of Appeal found that the survivors authorised the administrator to take a grant of representation and to vets the legal title in himself to enable him administer the estate. He was expected to render account of his administration to the other survivors. According to Ang’awa J in In the Matter of Habakuk Ochieng Adede (deceased) Nairobi HCSC No. 721 of 2000, accounts may be required under sections 76(d)(iii) and 83 of the Law of Succession Act. In In the Matter of the Estate of David Murage Muchina (deceased) Nairobi HCSC No. 2077 of 2002, Kamau Ag. J stated that personal representatives are under a statutory duty to account to all the beneficiaries and other interested parties. 

 

In In the Matter of the Estate of Hemed Abdalla Kaniki (deceased) Nairobi HCSC No. 1831 of 1996, Kamau Ag. J directed all the tenants of the properties the subject of the estate, who were not paying rent as the dispute over the estate raged, to commence paying the monthly rent to the  Registrar of the High Court and at the same time gave liberty to the administrators to initiate necessary recovery proceedings against any defaulting tenant. The court also ordered the administrators of the estate to compile an account of the income realised from the properties since the death of the deceased and file the same in court. In In the Matter of the Estate of Wilson Nzuki Nyolo Machakos HCP&A No. 152 of 2000 (Mwera J), an intermeddler was ordered to vacate from premises belonging to the estate and to account to the proper administrator, while the tenants in properties of the estate  were ordered to pay rent to the proper administrator. Filing of accounts, tenants ordered to pay rent-, In the Matter of the Estate of Dr John Muia Kalii (deceased) Mks HCSC No. 81 of 1996. In In the Matter of the Estate of Henry Ng’ang’a (deceased) Nairobi HCSC No. 1330 of 1999, Koome J directed an agent appointed by the court to collect rents to furnish the court with a full and accurate account of the rents collected from the properties. In Raphael Jacob Samuel vs. The Public Trustee and others Nairobi CACA No. 16 of 1980 the Court of Appeal stated that the Public Trustee who had been irregularly given a limited grant remained accountable to the subsequent personal representative for his stewardship under the limited grant while it was effective. 

 

15.4 Devolution of Assets on Personal Representatives

The assets forming part of the estate of the deceased vest in the deceased’s personal representatives (79 of the Law of Succession Act, In the Matter of the Estate of David Murage Muchina (deceased) Nairobi HCSC No. 2077 of 2002). Some types of assets do not vest in the deceased’s personal representatives, including: property held by the deceased as a joint tenant, sums payable under a discretionary pension scheme and  assets of the deceased which are the subject matter of a statutory nomination made by the deceased, the subject matter of a donatio mortis causa,  among others. Property registered in the name of the deceased vests in the personal representatives. 

 

Githinji J in In the Matter of the Estate of Kahiro Kibunyi (deceased) Nairobi HCSC No. 467 of 1986 and Waweru J in In the Matter of the Estate of Elizabeth Wamaitha Ngaruiya (deceased) Nairobi HCSC No. 2499 of 2001 stated that overriding interests under section 30 of the Registered Land Act, which amount to mere occupation rights, do not vest in the personal representatives since they terminate upon the deceased’s demise. In Public Trustee vs. Jotham Kinoti and another Nairobi HCCC No. 3111 of 1985 (Khamoni J), it was stated that property which is not included in the petition or even sold before the grant was made does not vest in the personal  representative.

 

(a) Property held by the deceased as a joint tenant

This is because property held under a joint tenancy is subject to the rule of survivorship. Under the rule the deceased ceases to be entitled to the property on death where he or she is survived by one or more joint tenants, and the surviving joint tenant takes the deceased’s share by virtue of their surviving the deceased. The property would only form part of the estate where the deceased is the only surviving joint tenant. 

 

(b) Money payable under a discretionary pension scheme

Discretionary pension schemes may allow the contributor to nominate a third party to receive benefits on the contributor’s death. Such nominations are not binding on the trustees of the scheme, with the consequence that they give no property rights to the deceased that can form part of the deceased’s estate. Where the trustees do exercise their discretion in favour of the nominated person, they pay the lump sum or pension directly to the third party.

 

(c) Assets the subject of a nomination 

Property, which forms the subject matter of a statutory nomination, does not pass to the estate; the assets pass directly to the nominee and do not vest in the nominator’s personal representatives.

 

(d) The subject matter of a donatio mortis causa

The assets the subject of a donatio mortis causa do not form part of the estate of the deceased, such assets pass directly to the donee.

 

(e) Insurance policies written expressly in trust or falling within section 11 of the Married 

     Women’s Property Act

Where the deceased has a life assurance policy, on his death the insurance company will normally pay the sum assured to the deceased’s personal representatives. This will then form part of his estate and will be distributed by the personal representatives in accordance with the deceased’s will or the rules of intestacy. However, by making use of section 11 of the Married Women’s Property Act 1882, or by expressly assigning or writing the policy in trust for a person, the assured can ensure that the proceeds of the policy are paid directly to the intended beneficiary, without first becoming vested in their personal representatives.

 

Under section 11 of the Married Women’s Property Act 1882, where the assured expressly provides that the policy is for the benefit of his or her spouse and children, this effects a trust in favour of the spouse and the children. On the death of the assured, the proceeds of the assurance policy are then payable directly to the trustees of the policy for the benefit of the named beneficiaries. If the assured wishes to benefit someone other than the spouse and children, the same effect can be achieved if the policy is expressly written in trust for the intended beneficiary or otherwise expressly assigned to him or her.

(look up provisions of the Limitation of Actions Act on what personal representatives need to know about limitation periods).

 

15.5 Powers of Sale

One of the main functions of personal representatives is to pay debts and liabilities (section 82(d) of the Law of Succession Act). To discharge the same it is often necessary for the personal representatives to realise some or all the assets of the estate. In addition, legacies may be payable to the beneficiaries under the terms of the will, this may also require the liquidation of some or all of the assets to settle the legacies. It is for the purpose of meeting these objects that section 82(b) of the Law of Succession Act gives wide powers to personal representatives of sale or otherwise turning into account all or any part of the assets vested in them.

 

In the event of intestacy, a statutory trust will arise under section 41 of the Law of Succession Act. It does not impose upon the personal representatives a duty to sell, but to facilitate the distribution of the requisite shares to the beneficiaries the personal representatives may have to liquidate the assets in exercise of the powers given under section 82(b) of the Law of Succession Act. The assets may be sold or retained at the discretion of the personal representatives (In the Matter of the Estate of Anthony Gichigi Wairire (deceased) Eldoret HCP&A No. 32 of 1983 (Nambuye J)). In 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 stated that although an administrator is a trustee for sale, he is , under the succession legislation, having control of property which is subject to various rules of distribution to various classes; and it may be necessary to obtain the consent of the court  to sell the property as a safeguard to both creditors and beneficiaries. This means that whatever the powers given to trustees under the Trustee Act and the Trusts of Land Act, the administrator of an estate is subject to the provisions of the Law of Succession Act.  

 

In most cases where the deceased dies testate, the will provides for an express trust for sale of the residuary estate. This is usually for providing a fund for the payment of the deceased’s debts, and other liabilities, and legacies given under the will. Where the will does not expressly provide for a trust of sale then the trustees will be bound to sell all the assets of the residuary estate before distributing it to the residuary beneficiary or beneficiaries.

 

15.6 Power of Appropriation

Section 82(d) of the Law of Succession Act provides that the personal representatives can appropriate assets of the estate in or towards the satisfaction of a legacy, interest or share in an estate, if no specific gift is prejudiced and that the beneficiary gives their consent to the appropriation. Appropriation should be after confirmation of the grant.  Where there is a continuing trust no appropriation should be made without the consent of the trustees (excluding the personal representatives themselves) or of the person entitled to income from the property. Where the person whose consent is required is a minor or of unsound mind, consent should be obtained from his parent, guardian, or manager of his estate or the court.

 

15.7 Personal Representatives acting as Trustees in some Cases 

Where the administration of the estate of the deceased involves a continuing trust, section 84 of the Law of Succession Act makes the personal representatives the trustees of such trusts whether they are in respect of a life interest or for minor beneficiaries or otherwise. This section does not apply where trustees for that purpose have been appointed by a will. However, the court has the discretion, regarding the estate of a polygamist whose death has resulted in the creation of several houses, to appoint at the time of the confirmation of the grant separate trustees of the property passing to each or any of the houses. It was stated by Aluoch J in In the Matter of the Estate of Johana Olishorua Leseya (deceased) Nairobi HCSC No. 3084 of 2002, that section 35, read together with section 58(1) of the Act where there are minor children, makes the surviving spouse a trustee as the surviving spouse only enjoys a life interest in the net intestate estate as he or she holds the property for the benefit of the minor children.

 

15.8 Powers to Insure Assets

The Trustee Act gives personal representatives power to insure assets of the estate. This power is, however, limited. The personal representatives may only insure against loss or damage by fire, and for only up to three-quarters of the value of the property. Under the said provisions, premiums on the insurance policy have to be paid out of the income of the estate, rather than from the capital.    

 

15.9 Power of Delegation

The power of delegation is of importance where a person wishes to take up their entitlement to a grant of probate or letters of administration, but does not have the time or the expertise to complete all aspects of the administration of the estate themselves. The extent to which personal representatives can delegate their duties is the same as for trustees and is governed by the Trustee Act. Under the said Act, personal representatives may employ an agent to transact any business or do any act in the administration of the estate and may remunerate such agent out of the estate.

 

Under the Act, the personal representative can engage an advocate or bank to arrange the collection of the assets of the estate, discharge of debts and other liabilities, and distribution of the estate. It can also be used to employ an estate agent to sell land forming part of the estate, or to engage a stockbroker to value or sell shares. The provision does not allow personal representatives to delegate any discretion in matters relating to the administration of the estate. The decision-making power over the estate remains with the personal representatives and not the appointed agent. The creation of a power of attorney may lead to a delegation of decision-making power. The personal representative is liable for the acts of the agents appointed under the Trustee Act by virtue of section 30, but will not be liable where the agents are appointed in good faith (section 23 Trustee Act (Cap 167 Laws of  Kenya))

 

 

15.10 Powers of Investment

Professionally drawn wills usually give personal representatives wide powers of investment. This is intended to avoid the limited powers of investment given under section 90 of the Law of Succession Act and in land legislation. In intestacy, only the statutory powers are available to the personal representatives.

(In the Matter of the Estate of Charles Odhiambo Odiawo deceased Nbi HCSC No. 1525 of 1999 (Koome J))

(look up relevant provisions of the Trustee Act, Trusts of Land Act, etc on powers of investment)

 

15.11 Power to Carry on the Deceased’s Business

As a rule, personal representatives do not have power to carry on the deceased’s business, whatever form the business may take. If the deceased was a partner in a partnership, the personal representative should call in the deceased’s share in the business. If the deceased was a sole proprietor, the personal representatives have implied authority to carry on the deceased’s business, but only with a view to the proper realisation of the deceased’s estate.  They may carry out the deceased’s obligations under a contract made before his or her death (Marshall vs. Broadhurst (1831) 1Cr&J 403)or carry on the business so as to enable it be sold as a going concern, so long as this is a proper method of realisation (Dowse vs. Gorton (1891) AC 190). A testator may give the executors of the will either express or implied authority to carry on the business (Re Crowther (1895) 1Ch 56). 

 

If the personal representatives carry on any business of the deceased, whether or not they have authority to do so, they will be personally liable on all debts and contracts (Owen vs. Delamere (1872) LR 15 Eq. 134). In Rohit C. Nawaz vs. Nawaz Transport Company (1982-88) 1 KAR 75 (Madan and Law JJA and Hancox Ag. JA), the deceased had carried on a transport business for some time under a business name. After his death his administrators continued to carry on the business. It was held that the administrators were liable for the debts of the business. They could not  say that the firm did not exist nor they were not personally carrying on the business under the firm name. It was further held that it would be wrong in principle to allow the administrators, who were continuing to carry on the business under the same name, to claim protection from the legal process.

 

However, the personal representatives are entitled to be indemnified out of the estate, where they have express or implied authority to act (Dowse vs. Gorton (supra)) or where the creditors agree to the indemnity. If the deceased’s will gives authority to carry on the business, the right of indemnity may be exercised in priority to the beneficiaries but not the creditors unless the creditors have expressly assented to the carrying on of the business (Re Oxley (1914) 1Ch 604). This is because the creditors are not bound by the will. Where the business is carried on with a  view to its proper realisation under the power implied under the common law, the right of indemnity may be exercised in priority to the creditors of the deceased and the beneficiaries.

CHAPTER SIXTEEN

16. PAYMENT OF EXPENSES, DEBTS, AND PECUNIARY LEGACIES

16.1 Introduction

The payment of debts and other priority liabilities and expenses follow the collection, realisation and preservation of assets.

 

16.2 Duty to Pay Debts and Discharge Other Liabilities

The duty on personal representatives to settle the deceased’s debts arises whether the deceased died testate or intestate. (Re Tankard (1942) Ch 69). The duty to pay debts and other liabilities does not depend on the personal representatives being aware of a particular debt or liability. They will be liable even if they distribute an estate in total ignorance of the existence of a particular debt owed by the deceased. Personal representatives, who take certain steps can, protect themselves from liability of which they were not aware.

 

16.3 Personal Representatives’ Powers in Respect of Debts

Section 15 of the Trustee Act gives personal representatives the power: to allow time for the payment of any debt; to accept any composition or any real or personal security for any debt; and to compromise, settle or abandon any debt or claim. So long as the powers are exercised in good faith, the personal representatives will not be liable for any loss that arises out of the way in which they have chosen to exercise their power. 

 

16.4 Funeral, Testamentary and Administration Expenses

Section 83(a) imposes a duty on the personal representatives to provide and pay out of the estate of the deceased expenses for a reasonable funeral for him. This entitles the personal representatives to take possession of the deceased’s body until such time that the body is buried. The personal representatives have the primary obligation of arranging the deceased’s funeral (Rees vs. Hughes (1946) KB 517 and Pauline Ndete Kinyota Maingi vs. Rael Kinyota Maingi Nairobi CACA No. 66 of 1984 (Nyarangi, Platt and Kwach JJA)). In practice, relatives arrange for the disposal of the deceased’s remains. If the funeral is ordered by a person other than the personal representatives, that person is liable in contract for the payment of the funeral expenses, but they can claim an indemnity for reasonable funeral expenses from the deceased’s estate. If it is the personal representatives who ordered the funeral they are liable personally in contract for the funeral expenses, but they can claim reimbursement or indemnity out of the estate for reasonable funeral expenses (Brice vs. Wilson (1834) 8 Ad & E 349). As to what are reasonable expenses, this depends on the deceased’s circumstances, including whether or not he died insolvent and his station in life. Funeral expenses are payable out of the estate before any other debt (R. vs. Wade (1818) 5Price 621). This is even so where the estate is insolvent (Re Walter (1929) 1Ch 647).

The personal representatives are under a duty to pay testamentary and administration expenses (section 83(c) of the Law of Succession Act). In Re Taylor’s Estate (1969) 2 Ch 1245 it was suggested that there is no real difference between testamentary and administration expenses. These expenses generally relate to costs of obtaining a grant to administer and relating to administration generally.

 

16.5 Payment of Debts and Solvent Estates

An estate is solvent if there are sufficient assets to pay all expenses and all debts in full. An estate is not insolvent simply because there are insufficient assets in the estate to enable any legacies given by the deceased to be paid. If there are insufficient assets to pay all legacies in full, the legacies will abate. Where the estate is solvent, the creditors will not be concerned with which part of the estate the debts are paid from, because they will be paid in full. Nevertheless, it will be a matter of concern to the beneficiaries, who may find that their share of the estate is made subject to the payment of specific debts or the deceased’s debts generally. The provisions of the Law of Succession Act do not give priority to any class of debts.

In Kamrudin Mohamed and another vs. Hilda Mary Coelho and others (1965) EA 336) Sir Udo Udoma CJ stated that where a testator deposited with the bank the title deed to leasehold property together with other properties, real or personal, by way of security for advances made to him by the bank that was an expression of desire that all the property so charged should be subject to the payment of the debt owed to the bank. In the circumstances, the leasehold property although not primarily charged with the payment of the debt could be used to make contribution towards the payment of the debt. 

 

16.6 Doctrine of Marshalling

As far as creditors are concerned, all the assets of the estate are available for the payment of the debts. The personal representatives should try to ensure that the right assets are used. The doctrine of Marshalling involves compensating a beneficiary who has lost out, from the fund that was the proper fund for the payment of the debts.

 

16.7 Debts and Insolvent Estates

An estate is insolvent if the assets are not sufficient to pay all debts and liabilities, and all funeral, testamentary and administration expenses. If the estate is insolvent, not all the creditors will be paid in full, and the beneficiaries under the estate will receive nothing. The disposition made in a will and the application of the rules of intestacy will be irrelevant in the circumstances. The personal representatives will only be concerned with the payment of the deceased’s creditors.

 

Section 89(1) of the Law of Succession Act requires the court, where the inventory in an application for a grant shows that after payment of funeral and other expenses the estate will be insolvent, on its own motion to order the administration of the in bankruptcy in accordance with section 121 of the Bankruptcy Act (Cap 53 Laws of Kenya). Under section 89(2), if a personal representative establishes that the estate he is administering is insolvent he should apply for its administration in bankruptcy.

 

16.8 Incidence of Pecuniary Legacies

The incidence of pecuniary legacies is concerned with which part of a testator’s estate is to be used for the payment of any pecuniary legacies that have been given by the deceased’s will. If a will expressly provides which part of the estate is to be used for the payment of pecuniary legacies, they should be paid out of that part of the estate. Normally a will expressly provides for pecuniary legacies to be paid out of the residuary estate, but it is possible for a will to expressly provide that they are payable from some other part of the estate.

Where there is no express provision as to which part of the estate pecuniary legacies are to be paid from, statutory or common law principles will apply. 

 

16.6 Administration Expenses

Under section 83(c) of the Law of Succession Act the personal representation has a duty to pay out of the estate all the expenses of obtaining the grant of representation and all other reasonable expenses of administration. These include expenses incurred by the administrator in the usual course of administration. In In re Marquordt, deceased, ex-parte Administrator General (1913-14) 5 EALR 162 (Hamilton CJ), the administrator of the estate of the deceased acting in conjunction with the lawyers for the mortgagees of a farm belonging to the deceased decided to subdivide the farm and selling it by auction in an effort to obtain a better price. The step was taken on expert advice and was expected to benefit the estate. The expectations of a better price were not realised. The  court was asked to decide whether the expenses should be borne by the general estate or come out of the price paid for the property by the mortgagees. It was held that the expense incurred by an administrator for the better realisation of mortgaged property, though with approval and joint action of the mortgagees, being for the benefit of the estate generally, must come out of the estate.

 

CHAPTER SEVENTEEN

17 DISTRIBUTION OF THE ESTATE

17.1 Introduction

Once the personal representatives have paid all the deceased’s debts and other liabilities, they will be in a position to consider the distribution of the estate. Distribution of the estate should not be done during the pendency of any contentious probate proceedings or before the person making the distribution has obtained a grant (Okoyana vs. Musi and another (1987) KLR 103 (Platt, Gachuhi JJA and Masime J)). Generally, if the personal representatives distribute the estate to the wrong beneficiaries they will be personally liable. 

17.2 Time for Distribution

The period of one year from the death of the deceased is known as the executor’s year. Within the period, the personal representatives should collect the assets of the deceased’s estate, ascertain and discharge all liabilities of the estate to be in a position to distribute the state among the beneficiaries. In many cases, the process takes longer than a year and it is usually not possible to complete the administration within a year.

 

17.3 Position of the Beneficiaries during the Administration Period

Prior to the distribution of the estate the personal representatives hold both the legal and equitable title to the assets of the estate, subject to their duties to collect in and preserve the estate, and to discharge the debts and other liabilities of the deceased. Lord Radcliffe in Commissioner of Stamp Duties (Queensland) vs. Livingstone (1965) AC 694 said of the personal representative:

 

“whatever property came to the executor virtute offici came to him with full ownership, without distinction between legal and equitable interests. The whole property was his. He held it for the purpose of carrying out the function and duties of administration, not for his own benefit…”

 

Personal representatives are not trustees. An essential characteristic of a trust is that only the legal title vests in the trustee, while the beneficiary has the equitable title. However, by virtue of his position the personal representative often discharges the functions of a trustee. He is in a fiduciary position with regard to the assets that come to him in the right of his office, and for certain purposes and aspects, he is a trustee (Commissioner of Stamp Duties (Queensland) vs. Livingstone (1965) AC 694, In the Matter of the Estate of Charles Odhiambo Odiawo, deceased (Nairobi HCSC No. 1525 of 1999 (Koome J) and Stephens and six others vs. Stephens and another (1987) KLR 125). In In the Matter of the Estate of Anthony Gichigi Wairire (deceased) Eldoret HCP&A No. 32 of 1983 (Nambuye J), it was stated that sections 82 and 83 of the Act require accountability of personal representatives to the beneficiaries, which in essence makes the personal representative trustees.

 

In their capacity, personal representatives cannot enjoy the benefits of the estate for themselves. The position of beneficiaries with respect to the estate during administration is not clear. The preponderant view is that the beneficiary has no beneficial interest in the estate during administration. He only has a right to ensure that the estate is properly administered. In In the Estate of the late James Shiraku Inyundo (deceased) Nairobi HCSC No. 920 of 1986, Kuloba  J stated that a beneficiary has no right to compel administrators to dance to his tune. The will of a beneficiary cannot overshadow the greater interests of the estate and the rest of the body of beneficiaries and administrators. According to the court where administrators are not committing any wrong to the estate they should be to administer the estate in the best interests of the estate and the beneficiaries. It is not the business of a beneficiary, for example, to go around looking for bills payable by the estate but which are not yet addressed to the estate and demand that they be settled by the administrators. It is wrong for a beneficiary to demand payment of unproven liabilities.

This approach has often caused hardship. It is quite wrong to hold that beneficiaries generally have nothing more than a mere right to compel the due administration of the estate, taking into account the principle that as long as a beneficiary survives the deceased they will acquire a transmissible right and the doctrine of lapse will not apply 

 

17.4 Ascertaining the Beneficiaries and Creditors

Personal representatives are under a duty to discharge all the deceased’s debts. As a rule, personal representatives are personally liable for unpaid debts even if they are unaware of the creditors’ existence or are unable to locate him. Similarly, the personal representatives are under a duty to distribute the estate, after payment of debts and other liabilities, to the correct beneficiaries according to the deceased’s will or the rules of intestacy where the latter apply. If they fail in this duty and distribute the estate to the wrong beneficiary, they will be personally liable, even if they could not locate the beneficiary or were not even aware of the existence of a particular beneficiary or they believed the beneficiary to have predeceased the deceased, so that their gift lapsed. The personal representatives can take steps to guarantee themselves protection from personal liability, either to a creditor or to a beneficiary of the estate whose existence they are not aware, or whom they simply cannot find. The main way in which personal representatives can protect themselves from personal liability to unknown creditors or beneficiaries is by advertising in accordance with section 27 of the Trustee Act. 

 

References to children made in a will and under the rules of intestacy, include illegitimate children and adopted children, unless in the case of a will there is an express contrary intention. This may make it difficult for the personal representatives to ascertain the deceased’s children. Personal representatives have no special protection from overlooking the claims of an illegitimate child.

 

When the distribution is done by the court the interests of all the beneficiaries is taken into consideration, including the interests of those beneficiaries under disability. The fact of mental instability does not disentitle one to benefit. In In the Estate of Muniu Kamau (deceased) Eldoret HCSC No. 7 of 1998, Nambuye J ordered that a mentally unstable person who had been excluded from the list of the heirs of his late father’s estate be included as a beneficiary.

 

17.5 Income and Interest on Gifts

These are governed by the common law. It is not possible for the personal representatives to distribute the estate immediately upon the death of the deceased and they are not bound to distribute the estate before the expiration of one year from the date of the deceased’s death. During the administration period, it is likely that some property will be producing income. 

 

(a) Specific gifts 

Immediate specific gifts carry all income and profits that have accrued from the date of the testator’s death (Re West (1909) 2 Ch 180). The right to income carries with it the burden of costs and expenses that will be deducted from the actual income. In the case of rent, for example, costs of repairs, insurance and so on have to be deducted from the rent before it is paid to the beneficiary. The beneficiary of a specific gift has to meet the costs and expenses from their own resources if the actual income is insufficient (Re Rooke (1933) Ch 970) 

 

(b) General legacies 

Since the beneficiary is not entitled to a particular asset of the estate, they cannot be entitled to any particular part of the income of the estate. However, if the payment of the legacy is delayed beyond the end of the executor’s year, the beneficiary will normally be entitled to interest to compensate for the delay in distribution.

             

In some circumstances, interest is payable on the legacy from the date of the testator’s death:

(i)  where the testator expressly provides that the legacy should be paid immediately on their death (Re Pollock (1943) Ch 338). 

(ii) where the legacy is given in satisfaction of a debt, unless the will specifies some later date that the testator’s death for payment of the debt (Re Rattenberry (1906) 1Ch  667).

(iii)where the legacy is charged on real property, rather than both real and personal  property (Pearson vs. Pearson (1802) 1Sch&Lef 10).

(iv)where the legacy is payable to a minor child of the testator or some other minor child whom he is in loco parentis, but only if the will contains no other provision for the maintenance of the minor (Re Bowlby (1904) 2 Ch 685).

(v) where a legacy given to a minor shows an intention to provide for the maintenance of  the minor (Re Jones (1932) 1 Ch 642).

 

(c) Residuary gifts

Residuary gifts carry income from the testator’s death (Barrington vs. Tristam (1801) 6 Ves. 845)

 

18.6 Power of Appropriation

Section 82(d) of the Law of Succession Act gives a statutory power to personal representatives to appropriate any part of a deceased’s estate in or towards the satisfaction of a legacy or other interest in the estate, provided that the consent of the beneficiary is obtained and so long as the appropriation does not prejudice a specific gift made by the deceased.

 

17.7 Assents

Beneficiaries under a will or in intestacy have no legal or equitable title to any asset comprised in the estate during the course of the administration process, but merely a right to see that the estate is properly managed. Beneficiaries acquire rights to a particular asset when personal representatives indicate by means of an assent that the particular asset is no longer needed for the purpose of the administration of the estate.  

Assents are dealt with in sections 82 and 85 of the Law of Succession Act. Personal representatives are empowered under section 82(c) to assent, after the confirmation of grant, to the vesting of a specific legacy in the beneficiary named in the will. The assent of the executor is a mandatory requirement for the completion of the beneficiary’s title (section 85(1)). The assent may be made orally or it may be inferred from the conduct of the executor (section 85(2)), and it is effective from the date of the testator’s death (section 85(4)). 

 

It is not clear whether an administrator in intestacy has power to give assent to the passing of property under the rules of intestacy. The wording of sections 82 and 85 is apparently limited to executors; the sections refer only to assents in testate succession. The position is equally unclear under the common law.  Williams in his text Law Relating to Assents (1947, p .96) says that an administrator cannot assent on intestacy, but cites no authority.  The personal representatives must make it clear that the subject matter of the gift is no longer required for the purpose of administration. Although an assent may be oral in some cases special formalities are needed to pass the legal title to the beneficiary. For example, where the personal representatives have been registered in the registry of motor vehicles as the equitable owners of a motor vehicle, they will need to complete a transfer form for the registration of the vehicle in the beneficiary’s name. 

(Look up land legislation for provisions on assents to land).

 

17.8 Transition from Personal Representative to Trustee

Where the deceased died testate, the will may appoint executors, who are also appointed trustees of any trusts created under the will, or the executors may not be appointed trustees, but property may be left on trust by the will, or a trust may arise because a beneficiary under the will is a minor at the date of the deceased’s death. On intestacy, a statutory trust arises and administrators are trustees of any trusts. This means that the roles of personal representatives and trustee overlap. Masime J in Stephens and six others vs. Stephens and another (1987) KLR 125 stated that an administrator of the estate of a deceased person pursuant to a grant of letters of administration 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 court are discharged.  Nambuye J in In the Matter of the Estate of Anthony Gichigi Wairire (deceased) Eldoret HCP&A No. 32 of 1983, said that the personal representative is placed in a position where he has to account to the beneficiaries and this makes the personal representative a trustee. Aluoch J said in In the Matter of the Estate of Johana Olishorua Leseya (deceased) Nairobi HCSC No. 3084 of 2002, that section 35, read together with section 58(1) of the Act where there are minor children, makes the surviving spouse a trustee as the surviving spouse only enjoys a life interest in the net intestate estate as he or she holds the property for the benefit of the minor children

 

This overlap occasions difficulty because of the principle that the office of a personal representative is for life. The distribution of all the deceased’s assets does not change the position, which is independent of the property he manages. There is always the possibility that claims may arise against the estate or unexpected property may accrue to the estate after distribution.

 

There are key differences between personal representatives and trustees. The function of a personal representative is to collect in the deceased’s assets, discharge debts and other liabilities, and distribute the estate as soon as possible. In contrast, the function of a trustee is to hold and manage the trust property. Personal representatives owe a duty to the estate as a whole, while trustees have a duty to balance the competing interests of individual beneficiaries. Trustees are required in law to always act jointly. Conversely, executors have joint and several authority to act in relation to personalty, but not land. They can act either together or separately in their dealing with personalty. A personal representative has no power to appoint additional personal representatives, but trustees have power to appoint additional trustees.

 

(Look up land legislation for provisions on whether executors should act jointly or not in dealings on land. Look up the law on the period of limitation for suits against personal representatives and trustees). 

 

At some point, personal representatives act both as personal representatives and trustees and at some point cease to be personal representatives and become trustees. It is important to know the point at which a personal representative holds property as such or as a trustee. 

 

In intestacy where there is no express trust, a statutory trust arises (Stephens and six others vs. Stephens and another (1987) KLR 125 (Masime JA)). It is not clear whether the personal representatives ever become trustees. Under the rules of intestacy a surviving spouse acquires a life interest in the estate, apart from the household and personal items, and minor beneficiaries are entitled contingent upon attaining eighteen years or, if female, upon getting married before that age. Older English cases suggest that where minority interests or life interest arise on intestacy, once the administration of the estate is complete in the sense that the personal representatives have discharged debts and distributed the estate to beneficiaries, the personal representatives then become trustees (Re Ponder (1921) 2 Ch 59, Re Yerburgh (1928) WN 208). This position contrasts with the decision of the Court of Appeal in Harvell vs. Forster (1954) 2QB 367, where the court took the view that personal representatives do not become trustees once they complete administration because they are unable to distribute to a minor.

 

Where no trustees are appointed by will but a trust arises, it was suggested in Grosvenor (1926) 2 Ch 375 that in the case of a specific gift where personal representatives have indicated by means of an assent that the subject matter of a specific gift is not required for the payment of debts, thereafter the asset is held on trust for the beneficiary of the specific gift until the legal title is transferred to them. In Harvell vs. Foster, the Court of Appeal indicated that personal representatives remain liable in their capacity as personal representatives until the estate is vested in the beneficiaries entitled to it, even if the vesting was delayed because of the minority of the beneficiary. 

 

Where the personal representatives are also the trustees of the residuary estate, the decision in Re Cockburn’s Trusts (1957) Ch 438 suggests that as soon as the debts and other liabilities have been discharged and the residue of the estate is ascertained, the personal representatives start to hold the property in their capacity as trustee. In Attenborough vs. Solomon (1913) AC 76 it was stated that the change does not take place automatically, but only when personal representatives have assented the property to themselvesto the themselves in their capacity as trustees, complying with the necessary formalities. Where the will appoints trustees but these are not the personal representatives, the personal representatives do not become trustees at any stage. In the circumstances, the personal representatives will be under an obligation to transfer the assets that form part of the trust to the trustees as part of the process of administering the estate. 

CHAPTER EIGHTEEN

18. REMEDIES OF THE BENEFICIARIES AND CREDITORS

18.1 Introduction

Sometimes things go wrong with administration. When this happens the beneficiaries and creditors look up to the personal representatives for a remedy. The law provides avenues for remedies for beneficiaries and creditors who are aggrieved by the conduct of personal representatives (In the Matter of the Estate of the late James Shiraku Inyundo (deceased) Nbi HCP&A No. 920 of 1986).

 

18.2 Offences by Personal Representatives

(Sections 94 and 95 of the Law of Succession Act).

 

18.3 Remedies through Administration Proceedings

These are provided for under Order XXXVI rule 1 of the Civil Procedure Rules. Administration proceedings are intended to ensure that the administration of an estate is properly done. Administration proceedings arise out of disputes over the conduct of the personal representatives in administering the estate. The proceedings may be commenced by the beneficiaries or creditors unhappy with the personal representatives’ conduct over the administration of the estate. They may also be started by personal representatives who encounter difficulties in the administration of the estate, particularly where they are unsure of their legal position, and wish to protect themselves from liability.

 

Any person interested in the estate of the deceased may commence administration proceedings. The action is commenced by way of originating summons. Where the action is brought by creditors or beneficiaries against the personal representatives on grounds of wrongdoing by the latter, the court will normally make an order directing that accounts be drawn up and certain enquiries be made.  These could cover accounts of property which forms part of the residue of the estate and which came to the possession of the personal representatives or any other person on behalf of the personal representatives; accounts of the deceased’s debts, funeral and testamentary expenses; accounts of any legacies or annuities; and an inquiry as to which part of the estate has not be collected or disposed of, and whether such property is subject to any encumbrances. Once the accounts and inquiries have been completed, the court will order payment of any debts, distribution of the assets to the beneficiaries, and other relevant orders.

 

Personal representatives often seek specific relief to shield them from liability. It is sought in most cases where the personal representatives are able to carry out administration of the estate overall, but have one or more specific difficulties. The specific relief may cover construction of wills; determination of beneficiaries; orders directed at personal representatives requiring the making of accounts, where there is a dispute as to whether they acted in the transaction for the benefit of the estate; and orders directing the personal representative to perform, or refrain from performing a particular act (In the Matter of the Estate of Charles Odhiambo Odiawo, Deceased Nbi HCSC No. 1525 of 1999 (Koome J), Rebecca Nyakeru Nyongo and others vs. Simon Kamau Gitau Mombasa CACA No. 245 of 1996 (Gicheru, Omolo JJA and Bosire Ag. JA)).  

 

(In the Matter of Peter Gicheru Kagotho (deceased) Nbi HCSC No. 376 of 1983 (Githinji J))

 

18.4 Action against the Personal Representatives

The personal representatives must preserve and administer an estate with diligence (Re Tankard (1942) Ch 69). They must also administer an estate in accordance with the law. If a personal representative, in his office as personal representative, commits a breach of duty that results in a loss to the beneficiaries or creditors of the estate, he commits a devastavit (wasting of the assets) for which he will be personally liable. It does not matter that the breach of duty is committed innocently, negligently or fraudulently.  

 

It has already been explained that there are important differences between personal representatives and trustees, but that it is sometimes difficult to distinguish between when a personal representative is acting as a personal representative and when he is acting as a trustee. It is important to distinguish between a breach of trust and a devastavit. Consequently, where the executors are appointed trustees of trusts arising from a will, it may be important to know in which capacity they are acting. 

 

Devastavit may be classified into three. Firstly, it relates to misappropriation of assets of the estate by a personal representative, such as where the personal representative uses the estate to pay personal debts (Re Morgan (1881) 18 Ch D 93) or converts the assets to their own use. Secondly, maladministration of the assets of the estate, where the personal representatives distribute the estate to the wrong beneficiaries or pay the wrong creditors, where they incur unjustified expenses in the administration of the estate by selling them at under value or paying debts they are not bound to pay. It will also apply in cases of failure by personal representatives to safeguard the assets of the estate so that they are lost or destroyed through carelessness (Job vs. Job (1877) 6 Ch D 562).

 

Where the personal representatives fail to settle amounts due to beneficiaries or at any rate fail to comply with court orders which require them to make certain payments to beneficiaries, the beneficiaries rely on section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules, where the court can in exercise of its inherent powers to compel compliance. According to Lowe J in Panayotis Nicolaus Catravas vs. Khanubai Mohamed Ali Harji Bhanji (1957) EA 234, an action can only be successfully maintained against a personal representative where such personal representative has taken out a grant of representation or intermeddled with the estate. 

 

Koome J in In the Estate of Joram Waweru Mogondu (deceased) Nairobi HCSC No. 2721 of 2002,  held that the enforcement of an order of the probate court cannot be compelled through Order XXI of the Civil Procedure Rules; as such matters of execution of orders under that the Law of  Succession Act have not been imported into succession law The beneficiary who desires to obtain binding and enforceable orders must commence a proper action. The Court of Appeal in Kangwana & Company Advocates vs. Solomon I. Kisili Nakuru CACA  No. 41 of 1984 (Platt, Apaloo JJA and Masime Ag. JA), stated that actions against executors and administrators can be brought under Order XXX, Order XXXVI  and Order IV rule 1 of the Civil Procedure Rules. The Court of Appeal, however, noted that only an action brought under Order IV rule 1 by way of  a plaint naming the personal representatives as defendants could lead to binding orders capable of enforcement or execution under the Civil Procedure Rules. In the suit the beneficiary should state the nature of his interest, the capacity in which the defendants are sued and the nature of the relief sought against them. A full trial should ensue in which the differences between the parties have to be determined and pronounced in the normal way. It is after the full scale trial that binding orders capable of being enforced against the personal representatives can be made. 

 

Connell J in In the Estate of Sheikh Fazal Ilahi (1957) EA 697, was of the opinion that an originating summons under Order XXXVI is not the appropriate procedure for dealing with highly contested matters, such as where the validity of a will is contested. The correct procedure is by an action to which the parties prejudiced by the will have been made parties.  It was stated in the Court of Appeal in Njoroge Chogera (the Administrator ad colligenda bona of the Estate of the Late Chogera Kimani) vs. Maria Wanjira Kimani and others Nairobi CACA No. 322 of 2003 (O’Kubasu, Waki and Deverell JJA) that where the suit is brought by way of plaint instead of originating summons the issue of wrong procedure does not invalidate the proceedings unless the same goes to the jurisdiction of the court and no prejudice is caused to the parties.

 

In Panayotis Nicolaus Catravas vs. Khanubai Mohamed Ali Harji Bhanji (1957) EA 234, Lowe J held that where a person is sued in representative capacity, such as a personal representative, 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 provided it is alleged that he is sued as executor. It is a matter for proof whether an executor who has not taken out probate has so intermeddled with the estate as to become liable as executor de son tort. 

 

A personal representative is liable for contempt of court for disobeying an order made by a probate court. The contempt proceedings can be commenced by a beneficiary and the same have to comply with the general law of contempt of court. In In John Muthama Kiarie and another vs. Apolonia Wanjiku Kiarie Nairobi HCSC No. 1358 of 1998, Kubo J considered the effect of disobeying a court order against the right of the disobedient party to a hearing before the court. The court was of the view that disobedience of court orders amounts to contempt of court and the same should not be countenanced by the court. The party in contempt should not be heard until he has surrendered to the jurisdiction of the court whose orders he has disobeyed or was in contempt of.

 

18.5 Defences of Personal Representatives

Where a personal representative is personally liable for a devastavit, he must replace the loss caused to the estate unless he can avail himself a defence (section 94 of the Law of Succession Act). There are several defences that may shield the personal representatives.

 

(a) Defence under section 60 of the Trustee Act

This provision allows the court discretion to relieve a personal representative (or trustee) wholly or partly, where they have acted honestly and reasonably, and in the opinion of the court ought to be excused. Each case turns out on its own facts. A number of cases have been concerned with whether executors or trustees have acted reasonably, when they have acted on the wrongful advice of a lawyer. (Perrins vs. Bellamy (1899) 1 Ch 797, National Trustee Co. of Australasia vs. General Finance Co. (1905) AC 373, Re Pauling’s Settlement Trust (1964) 1 Ch 303).

 

(b) Defence under section 61 of the Trustee Act

This provision gives the court discretion to indemnify the personal representatives, 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 the interest of that beneficiary or creditor. The court exercises its discretion under section 61 of the Trustee Act only if the beneficiary knew all the facts surrounding the matter (Re Somerset (1894) 1 Ch 231). 

 

(c) Defence under section 29 of the Trustee Act

This provision protects personal representatives from liability to a beneficiary or creditor of whose existence they are not aware of, if the personal representatives have complied with the conditions set out in section 28 of the Trustee Act concerning the placing of certain statutory advertisements.

 

(d) Defence of acquiescence in devastavit

This is a common law defence. At common law, if a creditor or beneficiary acquiesces in devastavit, the personal representatives are not generally liable to him. The personal representatives, however, have the burden of proving that the beneficiary or creditor was of full age, had full knowledge of all the material facts, and was not under the undue influence of the personal representatives (Re Marsden (1884) 26 Ch D 783).

 

It was stated in Holder vs. Holder (1968) Ch 353 that there is no fixed rule that the beneficiary should have knowledge of the legal consequences of the facts. Whether it is fair for the court to apply the defence depends on the facts of the each case.

 

(e) Defences of plene administravit and plene administravit praeter

These are common law defences. Plene administravit literally means that the personal representatives have fully administered the estate and do not have any assets in their possession. The personal representatives’ defence is that they do not have any assets that can be utilised to pay creditors. If the defence succeeds, the creditors may only obtain judgement against assets coming into the hands of the personal representatives (if at all) after the date of judgement. Plene administravit praeter means that the personal representatives have fully administered all the assets of the estate, except for a specified sum in their hands. If the personal representatives succeed with the defence, the creditors would only be able to obtain judgement in respect of the specified sum or assets coming into the hands of the personal representatives after the date of the judgement.

 

(f) Defences under the Limitation of Actions Act (Cap 22 Laws of Kenya)

(i) To a claim by a beneficiary

Apaloo JA in Stephens and six others vs. Stephens and another (1987) KLR 125 stated that the object of the Limitation of Actions 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 limitation period for breach of trust by administrators and trustees being to run from the date of the commission of the breach and not from the date of the death of the deceased according to Masime J in Stephens and six others vs. Stephens and another (1987) KLR 125.

 

Beneficiaries cannot bring any action against the personal representatives to recover land or in respect of a breach after the expiration of six years from the date on which the right to receive the share or interest accrued (section 20(2) of the Limitation of Actions Act). The limitation period for recovering movable property or personalty by a beneficiary is twelve years from the date when the cause of action accrued (section 21 of the Limitation of Actions Act).  An action to recover arrears of interest in respect of a legacy or damages in respect of such arrears should be brought within six years from the date on which the interest became due. Although personal representatives are not bound to distribute the estate before the expiration of the executor’s year, the time generally runs from the date of the deceased’s death (section 16 of the Limitation of Actions Act, Waddell vs. Harshaw (1905) 1 Ir R 416). 

 

The limitation period does not, however, apply to claims by beneficiaries where the personal representative has acted fraudulently (section 20(1) (a) of the Limitation of Actions Act) or where the personal representative is in possession of the property or the proceeds of the property (section 20(1)(b) of the Law of Succession Act). Apaloo JA in Stephens and another vs. Stephens and another (1987) KLR 125 stated that the philosophy underlying the Limitation of Actions 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. This, however, does not exclude the application of the equitable doctrine of laches.

 

(ii) To a claim by a creditor

The defence of limitation is available to a cause of action that accrued during the lifetime of the deceased, in the same way, as the deceased would have done had he been alive. Time continues to run against the claimant between the date of the deceased’s death and the date when the grant of representation is obtained (section 16 of the Limitation of Actions Act, Rhodes vs. Smethurst (1838) 4 M & W 42).

 

Section 21 of the Limitation of Actions Act covers actions for movable property of the deceased. If the deceased owed a creditor a simple contract debt, and he made provision in the will to charge a particular asset with the payment of the debt, the creditor’s action founded on the simple contract is statute barred against the personal representatives after six years from the date when the cause of action accrued (section 16 of the Limitation of Actions Act), but the charge (whether on realty or personalty) is only time barred after twelve years from the date when the right to receive payment under the charge accrued (section 21 of the Limitation of Actions Act). If the personal representative commits devastavit, by failing to pay or underpaying a creditor, a personal claim against the personal representatives is statute barred after six years from the date of distribution.

 

(iii) Extension of Limitation Period

The limitation period may be extended in some circumstances, whether the claim is by a beneficiary or a creditor. It may be extended under section 22 of the Limitation of Actions Act due to the disability of the claimant, under sections 23(3) and 25(7) (8) of the Limitation of Actions Act, where the personal representative has acknowledged the claim of a debt or other liquidated pecuniary claim or claim to movable property of a deceased person, and under section 26 of the Limitation of Actions Act in case of a mistake or fraud on the part of personal representatives. 

 

18.6 Substitution or Removal of a Personal Representative

The Law of Succession Act provides for two instances for the removal or substitution of personal representatives, under sections 71 and 76 of the Law of Succession Act.  Section 71 caters for confirmation of grants. Under section 71(2) (b) the court, at the hearing of the application for grant, if not satisfied that the grant was rightly made to the personal representative or that the personal representative was administering or would administer the estate according to the law, may decline to confirm the same and instead issue a confirmed grant of letters in respect of the estate or the unadministered part of the estate to someone else (look up cases on confirmation of grants with respect to this point). Under section 71(2) (c) the court may order a personal representative to deliver or transfer all the assets of the estate under his control to the holder of a confirmed grant issued by another court (look up relevant case law on this point from among confirmation decisions). 

 

The court exercises its discretion under section 71 either on its own motion or upon prompting by a beneficiary or any person who objects to the confirmation of the grant (rules 40(6) (7) (8) and 41(1) of the Probate and Administration Rules). Under rule 41(7) of the Probate and Administration Rules, beneficiaries and creditors have a right to appear and make representations before the court makes final orders relating to confirmation of the grant. 

 

The revocation or annulment of a grant under section 76 of the Law of Succession Act usually results in the removal or substitution of the personal representatives. Although the court may annul a grant on its own motion, in most cases, it acts on the prompting of either a beneficiary or creditor or any person interested in the estate (rule 44(1) of the Probate and Administration Rules). The application for revocation may be founded on purely technical grounds (section 76(a) (b) (c) and (e) of the Law of Succession Act), or on grounds related to the misconduct of the personal representatives or general maladministration of the estate by the personal representatives (section 76(d) of the Law of Succession Act). Upon ordering the revocation of the grant the court may issue a confirmed grant to someone else (look for case law on revocation).

The Trustee Act, which applies to both trustees and personal representatives, at section 42(1), empowers the court to appoint new trustees whenever expedient. This provision, however, does not apply to personal representatives by virtue of section 42(4) of the Trustee Act. The removal or substitution of personal representatives is also possible through Order XXXVI rules 1 and 2 of the Civil Procedure Rules (look up the relevant provision).

18.7 Actions against the Recipients of Assets

Where the loss suffered by the beneficiary or creditor arises from a devastavit of the personal representatives, the common law holds that the beneficiary or creditor should first seek to recover the loss from the personal representatives, before pursuing other creditors or beneficiaries who have received assets to which they are not entitled. Personal actions against other beneficiaries or creditors arise only where the claimant fails or is unable to recover from the personal representatives (Re Diplock (1948) Ch 465, Ministry of Health vs. Simpson (1951) AC 251).  

 

Tracing is the other remedy available against recipients of assets. It is a proprietary remedy whereby a legal or equitable owner of property is able to assert title to a particular thing that has passed derivatively into the hands of another (Overseas Finance Corporation Limited vs. The Administrator General of Tanganyika Territory and another (1942) 9 EACA 1 (Sir Joseph Sheridan CJ, Sir Norman Whitley CJ and Sir Henry Webb CJ). It is in simple terms, the following of a person’s property into the hands of another and asserting title to it. This will be possible even where the property has changed in form. The principles concerning tracing claims against innocent recipients were summarised in Re Diplock.

 

In Saleh bin Mohamed bin Omar Bakor vs. Noor binti Sheikh Mohamed bin Omar Bakor (1951) 18 EACA 30 (Sir Barclay Nihill P, Sir Newnham Worley VP and Lockhart-Smith JA) it was stated that a beneficiary is entitled to follow the assets into the hands of a person who has wrongly received them without necessarily having to apply for the revocation of the grant of letters of administration. The difference between a personal action and an action founded on tracing is that the true equitable owner of property may exercise the equitable right to trace without first exhausting their remedy against personal representatives. Where the true equitable owner has already recovered from the personal representative, they lose their right to trace (Re Diplock).

 

There is also a difference with relation to limitation. Some tracing claims are probably not affected by the statutory limitations in the Limitation of Actions Act. These are subject to the equitable doctrine of laches (Goff and Jones, The Law of Restitution, 1978, p. 541). Under this doctrine, a tracing claim will only be defeated by time if the plaintiff unreasonably delays in making their claim. However, section 21 of the Limitation of Actions Act appears to cover tracing claims in respect of movable property of a deceased person. They are barred after twelve years.

 

PART NINE: POST-MORTEM ALTERATIONS

CHAPTER NINETEEN

19. DEPENDANCY AND FAMILY PROVISIONS                                                                                                                          

19.1 Introduction

Section 5(1) of the Law of Succession Act technically gives a testator total freedom to make a will disposing of any of his property by will to whomsoever he wishes (In the Matter of the Estate of Sadhu Singh Hunjan (deceased) Nairobi HCSC No. 107 of 1994 (Kuloba J) and In the Matter of the Estate of Benjamin Ngumba Gachanja (deceased) Nairobi HCSC No. 2172 of 1994 (Etyang J)). This is called freedom of testation or testamentary freedom. It is, however, not an absolute freedom, since after the testator’s death the terms of the will may be altered by the court following an application under section 26 in  Part III of the Law of Succession Act. The dependency and family provisions of the Law of Succession Act deal with provision for persons who were dependent on the deceased prior to his death, but after his death find themselves inadequately provided for in his will or in intestacy or by gift in contemplation of death These provisions act as a fetter to the operation of the doctrine of testamentary freedom.

 

The Court of Appeal in Elizabeth Kamene Ndolo vs. George Matata Ndolo Nairobi CACA No. 128 of 1995 (Gicheru, Omolo and Tunoi JJA) stated that under the provisions of section 5 of the Law of Succession Act every adult Kenyan has an unfettered freedom to dispose of his  or her property by will in any manner he or she sees fit. This freedom, like all others, must be exercised responsibly and a testator exercising the 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. According to the court, the responsibility to the dependants is expressly recognised by section 26 of the Act. In the words of the Court of Appeal, section 26:

…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 up-keep of an animal orphanage if the effect of doing so would be to leave his dependants unprovided for.

 

Nambuye J in In re estate of Ng’etich (2003) KLR 84 and Koome J in In the Matter of the Estate of James Ngengi Muigai (deceased) Nairobi HCSC No. 523 of 1996 stated that although the testator has power to dispose of his property by will, the freedom is not absolute. Section 26 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. Shah JA in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. 213 of 1997, however, pointed out that in exercising the power given by section 26 the court should not re-write the wills of deceased persons. In the opinion of Shah JA section 26 provides only the power to make reasonable provision for a dependant who has not adequately been provided for in the will of the deceased. Kuloba J in In the Matter of the Estate of Sadhu Singh Hunjan (deceased) Nairobi HCSC No. 107 of 1994 cautioned that the will of the departed must be honoured as much as is reasonably possible. Readjustments of the wishes of the dead by the living must be spared for the wills of  eccentric and unreasonably harmful testators and, what he called, weird wills.  

 

19.2 Categories of Applicants

Bosire JA in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. 213 of 1997, stated that section 26 empowers a person who qualifies under section 29, called dependant, and who considers that a testator did not make reasonable provision for him in his will, to apply to court for an order making such reasonable provision for him as the court thinks fit. Akiwumi JJA in the same case pointed out that section 26 under which the application is brought , limits the right to bring such an application to a ‘dependant’ defined in section 29 of the Act. It, however, was emphasised by Waweru J in In the Matter of the Estate of Ashford Njuguna Nduni (deceased) Nairobi HCSC No. 1589 of 1994 that a dependant coming under section 26 is not in the same standing as a beneficiary under a will or an heir in intestacy. The term ‘dependant’ is a technical one, its utility is limited to Part III of the Law of Succession Act where the court is faced with an application brought under section 26 of the Act. 

Section 29 gives three categories of persons who may take advantage of section 26 of the Act, namely: the wife or wives, former wife or wives of the deceased; the children of the deceased; the deceased’s parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, half-brothers and half-sisters; and the husband, where the deceased is a woman.

 

Under the Law of Succession Act, the persons who can take advantage of the dependency or family provisions should be related to the deceased through either blood or marriage, and are limited to the categories of persons listed in section 29 of the Act. Persons who are not related to the deceased in any way or who are not members of his household cannot benefit under these provisions. The dependants in the first category, that is spouses and children, do not have to prove dependency. It would suffice for them to prove that they were either spouses or children of the deceased. The other categories of dependants have to prove dependency, which is that the deceased was maintaining them immediately prior his or her demise.  The persons who would be applicants under the general law cannot succeed if they claim against an estate of a deceased Muslim so long as they fall within the classes of persons who are barred from benefit under Islamic law (Chelang’a vs. Juma (2002) 1 KLR 339).

 

(a) Wife or wives of the deceased 

Section 29(a) of the Law of Succession Act caters for wives married either under statute or under systems of marriage that allow polygamy. There is no requirement that the wife or wives prove that they were dependent on the deceased immediately before his death. All they have to do is to prove that they were validly married to the deceased. This category includes a judicially separated wife (section 3(1) of the Law of Succession Act).

 

A party to a voidable marriage, which has not been annulled prior to the deceased’s death, should also benefit from section 26 of the Law of Succession Act.  Such a party falls under the category of wife or wives of the deceased so long as she entered into the marriage in good faith, and during the deceased’s lifetime the marriage was neither annulled nor dissolved nor did she enter into a later marriage. A woman married to another in the customary law woman-to-woman arrangement is a wife for the purpose of section 29(a) of the Law of Succession Act (In the Matter of the Estate of Tabutany Cherono Kiget (deceased) Kericho HCP&A No. 157 of 2001 (Kimaru J), In re estate of  Ng’etich (2003) KLR 84 (Nambuye J) and In the Matter of the Estate of Naomi Wanjiku Mwangi (deceased) Nairobi HCSC No. 1781 of 2001 (Koome J)).

 

The position regarding women married under customary law by a man who had previously or subsequently contracted a statutory marriage initially presented a problem. Whereas the Law of Succession Act sought to recognise the children of the deceased regardless of the status of the children’s mother’s relationship with their father, the Act did not recognise the mothers of such children whose marriage to the deceased otherwise resulted in bigamy.

 

The problem resulted from the failure by parliament to pass the Law of Matrimony Bill although the same was presented to parliament several times. The Law of Succession Act carries provisions whose operation were meant to be dependent on the proposed family law statute. Some of these provisions depart from the English law position embodied in the current family law statutes.  The proposed family law sought to harmonise the Law of Succession Act by changing Kenya’s family legal regime to allow conversion of one’s family law system from the statutory monogamous system to the potentially polygamous system.

 

 The Law of Succession Act specifically sought to address the plight of women who found themselves in the position of the customary law widows in the cases of Re Ruenji’s Estate (1977) KLR 21 and Re Ogola’s Estate (1978) KLR 18. In both matters, the deceased persons had previously contracted marriage under the African Christian Marriage and Divorce Act and subsequently purported to contract marriages to other women under customary law during the subsistence of the statutory marriage. The High Court held, in both cases, that by virtue of section 37 of the Marriage Act the deceased lacked capacity to contract other marriages under any system of law, that the marriages so contracted were null and void, and that the women so married were not wives for any purpose (including succession).

 

The position taken by the court in Re Ruenji’s Estate and Re Ogola’s Estate was considered unfair to both the women purportedly married under customary law and their children. It is often asserted that polygamy is allowed under African customary law and there is nothing inherently wrong for a man who had married under statute to contract other marriages under customary law during the subsistence of the statutory marriage. It is also argued that the concept of conversion of family law systems, which allows conversion from African customary law to English law and not vice versa, is unjust. It is also felt that the women and their children are innocent parties who should not be deprived of benefit from the estate of the person who maintained them during his lifetime.

 

The legislature sought to address the problem through an amendment of the Law of Succession Act, through Act No. 10 of 1981, by introducing section 3(5) which provides as follows:

 

Notwithstanding the provisions of any other written law, a woman married under a system of law which allows polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of the Act, and in particular sections 29 and 40 thereof, and her children are, accordingly, children within the meaning of the Act.   

 

The amendment was intended was to cater for the woman who contracts a marriage with a man who is already married to another woman under statute and, therefore, lacking capacity to contract another marriage under any family law system. The provision cannot possibly be meant to protect the woman married under customary law to a man who seeks to contract a subsequent statutory marriage, since such a woman is adequately protected under the provisions of the Marriage Act, which make such a subsequent statutory marriage during the subsistence of the prior customary law marriage null and void (Pauline Ndete Kinyota Maingi vs. Rael Kinyota Maingi Nairobi CACA No. 66 of 1984 (Nyarangi, Platt and Kwach JJA).

 

The provision clearly sought to circumvent section 37 of the Marriage Act and to reverse, through legislation, the decisions of the High Court in Re Ruenji’s Estate and Re Ogola’s Estate, by recognising, as wives, women married to or by men who had no capacity to marry them by virtue of section 37 of the Marriage Act. The amendment gives primacy to the polygamous marriage at the expense of the statutory monogamous one and it treats the statutory monogamous marriage as secondary to the subsequent polygamous marriage. This provision was a stopgap measure awaiting the passage into law of the Law of Matrimony Bill, which would have recognised such a woman married to or by a man who had contracted a previous statutory marriage. It is, however, not an ideal solution to the problem as it creates an untidy situation where the marriage statutes are in conflict with the Law of Succession Act. Whereas the woman married in contravention of section 37 of the Marriage Act is not a wife for any purpose, such a woman is recognised under section 3(5) of the Law of Succession Act as a wife and is entitled to inherit from the estate of the deceased in spite of section 37 of the Marriage Act. 

 

Although the wording of section 3(5) has a very clear meaning, the initial judicial opinion gave the provision a contrary interpretation. In In the Matter of the Estate of Reuben Nzioka Mutua (deceased) Nairobi HCP&A 843 of 1986 (Aluoch J), the deceased had contracted a previous statutory marriage under the African Christian Marriage and Divorce Act and subsequently purported to contract another marriage under Kamba customary law during the currency of the statutory marriage. He died testate, leaving his entire estate to his statutory wife and her children. His will made no provision for the purported customary law wife and her children, who then moved the High Court under section 26 of the Law of Succession Act for a reasonable provision for herself as a dependant and for the benefit of her children. The court, basing itself on section 37 of the Marriage Act and the High Court decisions in Re Ruenji’s Estate and Re Ogola’s Estate, found that the deceased lacked capacity to contract the customary law marriage and therefore the customary law ‘wife’ was neither a wife nor a dependant of the deceased. 

 

The decision in the Reuben Nzioka Mutua case is not a correct application and interpretation of section 3(5). The court did not address its mind to the mischief in the law which section 3(5) sought to tackle, and the fact that the definition of wife in the provision covered a woman in exactly the position of the customary law wife in the matter. The decision was found by the Court of Appeal in Irene Njeri Macharia vs. Margaret Wairimu Njomo and another Nairobi CACA No. 139 of 1994 (Omolo and Tunoi JJA, and Bosire Ag. JA) to have been wrongly decided and not correctly stating the true position at law.

 

In In the Matter of the Estate of Stephen Ng’ang’a Gathiru (deceased) Nairobi HCSC No. 500 of 1992 (Waweru J), the court adjudged that the applicant was not a wife or former wife of the deceased, as she did not fall within the definition of dependant in section 29 and therefore she could not bring an application under section 26 of the Law of Succession Act. Section 3(5) only covers the customary law wife, it does not aid a cohabitee. Whether the court finds in favour of the customary law wife depends on the evidence marshalled to prove the existence of a customary law marriage between the applicant and the deceased (Muigai vs. Muigai and another (1995-1998) 1 EA 206 (Amin J) and In the Matter of the Estate of Samuel Muchiru Githuka (deceased) Nairobi HCSC No. 1903 of 1994 (Kamau J)). The proof of a customary law marriage for the purpose of section 26 should be as provided for under rule 64 of the Probate and Administration Rules.

 

A cohabitee, however, can also bring an application under section 26 on the basis that she was a wife of the deceased by dint of prolonged cohabitation with the deceased. She has to convince the court that the said cohabitation gave rise to a presumption of marriage between her and the deceased (In the Matter of the Estate of Samuel Muchiru Githuka (deceased) Nairobi HCSC No. 1903 of 1994 (Kamau J)). The principles for determining a marriage out of cohabitation are clearly set out in a series of past decisions, prime among them being Hortensiah Wanjiku Yawe vs. Public Trustee CAEA CA No. 13 of 1976 (Wambuzi P, Mustafa and Musoke JJA) and Kisito Charles Machani vs. Rosemary Moraa Nairobi HCMisc.CC No. 464 of 1981 (Porter J).

 

(b) Former wife or wives of the deceased 

These fall under section 29(a) of Law of Succession Act and do not have to establish dependency. A former wife is a person whose marriage to the deceased was dissolved or annulled during the deceased’s lifetime, either by a decree of divorce or annulment granted under Kenyan law or by an overseas divorce or annulment recognised in Kenyan law (In the Matter of the Estate of James Ngengi Muigai Nairobi HCSC No. 523 of 1996). However, if the divorce court had granted an order for alimony or the former wife had obtained a settlement under section 17 of the Married Women’s Property Act 1882, she will not be entitled to relief under section 26 of the Law of Succession Act.

 

(c) Children of the deceased  

These are covered under section 29(a) of the Law of Succession Act and they do not have to prove dependency. A child of the deceased includes a child en ventre sa mere, a child of a relationship outside marriage, a legitimated child (section 5 of the Legitimacy Act (Cap 145 Laws of Kenya))and an adopted child (sections 174 and 175 of the Children Act (Act No. 8 of 2001)). It also includes a child whom the deceased has expressly recognised or accepted as his or for whom he has voluntarily assumed permanent responsibility (section 3(2) of the Law of Succession Act, In the Matter of the Estate of James Ngengi Muigai HCSC No. 523 of 1996 (Koome J), Section 118 of the Evidence Act (Cap 80 Laws of Kenya) and  section 12 of the Births and Deaths Registration Act (Cap 149 Laws of Kenya). An adopted child cannot claim against the estate of their natural parent (section 171(1) of the Children Act and Re Collins deceased (1990) 2 All ER 47). In Re Callaghan (1984) 3 All ER 790 it was observed by Booth J that the term ‘child’ referred to the relationship between the deceased and the applicant, and that it is not limited to a minor or dependant child. Age and marriage are not in themselves a bar to a claim. 

 

The Court of Appeal in John Ndung’u Mubea vs. Milka Nyambura Mubea Nairobi CACA No. 76 of 1990 (Gicheru, Kwach and Tunoi JJA) held that the children of an adulterous union are children for the purposes of succession. Waweru J in In the Matter of the Estate of Stephen Ng’ang’a Gathiru (deceased) Nairobi HCSC No. 500 of 1992, found that the applicant was not a wife of the deceased and that she and her child, sired by someone other than the deceased, were not dependants of the deceased. The court, however, held that the applicant’s child with the deceased was a dependant for the purpose of section 26 of the Act. In In the Matter of the Estate of Jonathan Mutua Misi (deceased) Machakos HCP&A No. 95 of 1995, Mwera J found that a child the deceased had with a woman who was not married to him was a survivor and heir of the deceased, and was entitled to a share of the estate. Age is not a consideration. A dependant child does not have to be a minor to benefit under section 26 of the Act (In the Matter of the Estate of Carey Kihagi Muriuki (deceased) Nairobi HCSC No. 765 of 1994 (Koome J).

 

The provision notably seeks to cater for all the children of the deceased. The definition of child under section 3(2) includes an unborn child, an illegitimate child, an adopted child or any child who had been recognised by the deceased as his own during his lifetime. Thus whereas questions might arise as to whether a woman is a wife or not for the purpose of succession, for example where bigamy has been committed, the children of such unions are protected under the Act. In In the Estate of Reuben Nzioka Mutua (deceased) Nairobi HCP&A 843 of 1986 (Aluoch J), the applicant, a woman purportedly married under customary law to a man who had previously contracted a statutory marriage sought benefit under section 26 for herself and her children. The court held that she was not a wife. She produced certificates of birth, relying on section 3(2) of the Law of Succession Act, showing that the deceased was the father of her children and that he had recognised them as such. The court found that her children were children within the meaning of section 3(2) and therefore entitled to provision out of the estate of the deceased under section 26 of the Law of Succession Act.  

 

The illegitimate children of a deceased Muslim man cannot rely on section 26 of the Act even if the deceased had recognised and accepted them as his own during his lifetime (Chelang’a vs. Juma (2002) 1 KLR 339). Section 3(5) of the Law of Succession Act does not cover the children of a woman who is not able to bring herself within the cover of section 3(5). The decision by Nambuye J in In Re Estate of Kittany (2002) 2 KLR 720, where the woman claiming to be a customary wife within the meaning of section 3(5) was held not a wife under that provision, but her children were found to be children for the purpose of section 3(5), was obviously not properly made and it is not a true reflection of the law. Children can only be held to be children for the purpose of section 3(5) where their mother is found to be a wife under that provision. Such children , nevertheless, are children of the deceased so long as they fall under section 3(2) of the Law of Succession Act.

 

(d) Step-children and children whom the deceased had taken into his family

This category of children falls under section 29(b) of the Law of Succession Act and they are required to prove dependency on the deceased immediately prior to his death. A literal reading of section 29(a) (b), however, appears to make it difficult to reconcile the placing of ‘step-children’ and ‘children whom the deceased had taken into his family’ in the category of persons who have to prove dependency with section 3(2) of the Law of Succession Act. Section 3(2) defines ‘child’ for the purpose of succession to include a child whom the deceased had expressly recognised as a child or accepted as a child of his own or over whom he voluntarily assumed permanent responsibility.  This apparent overlap between section 29(a) and section 29(b) on the aspect of children can be explained. Stepchildren, whom the deceased had not taken into his home or who were not under his care, have to prove dependency, but the stepchildren whom the deceased took under his wings fall under sections 3(2) and 29(a) and do not have to prove dependence.  Under Islamic law adopted and stepchildren have no right of inheritance from their ‘father’ (Chelang’a vs. Juma (2002) 1 KLR 339). Such children cannot therefore benefit from section 26 of the Law of Succession Act.

 

 (e) Other persons who were dependent on the deceased

This category falls under section 29(b) of the Law of Succession Act and includes the deceased’s parents, stepparents, grandparents, grandchildren, brothers and sisters, and half-brothers and half-sisters. They all have to prove that they were being maintained by the deceased immediately before his death. This requires that the relatives establish that they were financially dependent on the deceased. 

 

The provision embraces the traditional African practice under which a person was under an obligation to provide not only for members of his immediate family, but also for the extended family. The only rider being that such members of the extended family have to prove that they were being maintained by the deceased immediately prior to his death for them to benefit from section 26. The rider serves to cushion the estate from pressure by deceased’s extended family.

 

Grandchildren are put in this category because under normal circumstances the primary responsibility over them falls on their own parents, not on the grandparents. If their own parents survive the grandchildren’s deceased grandparents, the grandchildren would inherit through their own parents. The grandchildren would only be entitled to a share of their deceased grandparents’ estate if their parents are dead or for some reason could not provide for them hence their dependence on the deceased grandparents. In In the Matter of the Estate of Sadhu Singh Hunjan (deceased) Nairobi HCSC No. 107 of 1994, Kuloba J held that the deceased had made reasonable provision for his late son and it was to be reasonably expected that his late son was to make reasonable provision for his wife and his own children just as his father had done for him and his sisters.  

 

The Court of Appeal in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No 213 of 1997 (Akiwumi and Shah JJA, with Bosire JA dissenting) held that grandchildren are usually not direct dependants of the deceased, they have to prove dependency. So long as their parents are alive and take a benefit under a will or in intestacy, grandchildren are not considered as dependent on the deceased grandfather. They take through their own parents. They only become dependants where their parents predecease the grandfather or for some reason the parents are themselves dependent on the deceased. On the facts of the case, the grandchildren were not dependent on their deceased grandfather but on their uncle, who was one of the respondents in the suit.

 

In In the Matter of the Estate of Clement Albert Etyang (deceased) Nairobi HCSC No. 1099 of 2002 (Koome J) and In the Matter of Nelson Kimotho Mbiti (deceased) Nairobi HCSC No. 169 of 2000 (Koome J) the parents of grandchildren of the deceased persons were themselves dependent on their deceased father, meaning that the grandchildren were directly dependent on the grandfather. The court found that the grandchildren in both matters were dependants for the purpose of section 26 and made provision for them out of the estates. In In the Matter of the Estate of Benson Joseph Omondi Awinyo (deceased) Nairobi HCSC No. 1183 of 2002, the application was by the father of the deceased. His claim was that his departed son was maintaining him immediately before the latter’s demise. He adduced evidence to the effect that he was old and retired. The court directed that provision be made for him out of the estate.

             

(f) Husband of the deceased

Under section 29(c) of the Law of Succession Act where the deceased is a woman her husband, if not adequately provided for in intestacy or under her will, will have to establish that he was dependent on her immediately before her death. This should be understood from the background of Kenyan family law, under which it is the duty of the husband to provide for the wife and not vice versa. 

 

19.3 Jurisdiction and Procedure

A survivor, heir or beneficiary of the deceased who feels inadequately provided for under a will or in intestacy or through a gift in contemplation of death may move the court under section 26 of the Act for reasonable provision from the estate of the deceased (In the Matter of the Estate of Manibhai Kisabhai Patel (deceased) Nairobi HCSC (Milimani) No. 2340 of 1996 (Onyango-Otieno J). The application for the reasonable provision under section 26 of the Law of Succession Act should take the form of a petition (rule 45(1) of the Probate and Administration) where no grant has been applied for. Where a grant has been applied for or made but not confirmed it should be brought in that cause by a summons. In either case, it must be supported by an affidavit.  The application may be made to either the principal registry or a High Court district registry or a resident magistrate’s registry.

 

The application should be by the aggrieved person or someone on his behalf (section 26 of the Law of Succession Act). It would appear from the decisions of Akiwumi JA and Shah JA in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. 213 of 1997 and Etyang J in In the Matter of the Estate of Benjamin Ngumba Gachanja (deceased) Nairobi HCSC No. 2172 of 1994  the person on whose behalf the application is brought is expected to swear and file affidavits in support of his case and also testify in court at the hearing of the application, unless of he is a minor. Bosire JA, in his dissenting judgement in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. 213 of 1997, took the position that that is unnecessary so long as there is ample evidence on dependency upon which the court can make a decision on the matter. Akiwumi JA in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. 213 of 1997 stated that since an application for reasonable provision is likely to affect not only the executors but also the beneficiaries under the will and other beneficiaries, all those likely to be affected by the application should be made parties to the proceedings.

 

Section 26 envisages a formal application by an aggrieved beneficiary or dependant. In the circumstances, the court should not apply section 26 of the Law of Succession Act on its own motion without there being an application by a party. The application of section 26 by the court suo moto in the cases of  In the Matter of the Estate of James Ngengi Muigai (deceased) Nbi HCSC No. 523 of 1996 (Koome J), In the Matter of the Estate of Tabutany Cherono Kiget (deceased) Kericho HCP&A No. 157 of 2001 (Kimaru J) and In re estate of  Ng’etich (2003) KLR 84 (Nambuye J) was wrongful, and was done without authority. The inherent powers of the court cannot be used to confer jurisdiction where there is no application under section 26. It would appear in In the Matter of the Estate of Tabutany Cherono Kiget (deceased) Kericho HCP&A No. 157 of 2001 (Kimaru J) that the court, which was dealing with a revocation application, was not sure of the proceedings it was conducting. The court appears to have treated the proceedings as objection, revocation and family provisions proceedings all rolled up in one. 

 

In a number of decisions, a section of the High Court has made decisions based on Part III of the Act in proceedings relating to objections to, confirmation and revocation of grants of representation. Such decisions would be wrong if made in the absence of a formal application brought under section 26 of the Law of Succession Act.  In In the Matter of the Estate of the Late Evanson Kiragu Mureithi (deceased) Nakuru HCSC No. 163 of 1995, Ondeyo J, after conducting objection proceedings, made a finding that the objector was a dependant under section 29 of the Act. Etyang J in In the Matter of the Estate of Benjamin Ngumba Gachanja (deceased) Nairobi HCSC No. 2172 of 1994 while handling revocation proceedings made holdings founded on sections  26 and 29 of the Act in the absence of a formal application. The learned judge apparently went off tangent when he stated that where the deceased died testate the court has to decide whether the deceased had in his will reasonably distributed his property. This is not a correct exposition of the law. The court can only consider that when faced with an application under section 26.  

In In the Matter of the Estate of Samuel Muchiru Githuka (deceased) Nairobi HCSC No. 1903 of 1994 Kamau J made certain findings on section 29 of the Act after hearing an objection application, and so did Aluoch J in In the Matter of the Estate of James Mberi Muigai Kenyatta (deceased) Nairobi HCSC No. 2269 of 1998. In Etyang J in In the Matter of the Estate of Morrison Muhika Njoroge and Loice Wamere Muhika (deceased) Eldoret HCSC Nos. 124 and 125 of 1996, while handling a confirmation application, got beneficiaries and dependants mixed up. He identified certain persons as beneficiaries and heirs. He went on to describe them as dependants under section 29 of the Act, when in fact there was no application for reasonable provision before him. In In the Matter of the Estate of Peter Njenga Kinyara (deceased) Nairobi HCSC No. 1610 of 2000, Koome J, made findings on section 29 during revocation of grant  proceedings, in the absence of a formal application under section 26. 

 

The correct position regarding section 29 appears to be that stated by Waweru J in In the Matter of the Estate of Ashford Njuguna Nduni (deceased) Nairobi HCSC No. 1589 of 1994, where he said that a dependant under section 26 and 29 of the Law of Succession Act is not in the same standing as a beneficiary under a will or an heir in intestacy. A dependant under section 29 does not refer to a general beneficiary or heir, but one of moves or is entitled to move the court under section 26 of the Act. A clear distinction should be made between heirs and beneficiaries on the one hand, and dependants on the other hand. The term beneficiary is technically used to refer to the person who receives a gift in a will. An heir is the person entitled to inheritance in intestacy, and the categories of heirs are set out in sections 35, 36, 38, 39, 40 and 41 of the Law of Succession Act. Beneficiaries and heirs are not synonymous with dependants; they only become dependants upon being declared as such by the court following an application brought under section 26 of the Law of Succession Act.

 

Objection proceedings turn on the issue of the entitlement to and the suitability of the petitioner to a grant of representation, and heirs and beneficiaries usually commence them. In intestacy, the persons who should file objection proceedings are those set out in sections 3(5), 35, 36, 38, 39, 40, 41 and 66 of the Law of Succession Act. In testate succession, the objectors should be those challenging the validity of the will. The qualification for bringing these proceedings is not dependency, but beneficial interest or heirship. In these proceedings, the only issue for determination should be whether the grant should be made to the petitioner. A court, which finds that the will, the subject of the application for grant, is valid should not venture to determine whether the objectors are dependants. It should make a grant to the executors named in the will or if none are named to the persons entitled to the grant in intestacy. The issue of dependency should fall for determination in different proceedings. Likewise, confirmation and revocation proceedings are specific proceedings, designed to address specific issues and concerns. They are not suitable for addressing dependency matters. Needless to say that different principles guide the determination of these quite different and exclusive applications.  

The practice by a section of the High Court of making findings based on Part III of the Act while handling confirmation, objection and revocation proceedings in the absence of a formal application for reasonable provision is a clear indication that the court, in such cases, is in fact handling the wrong application. The court’s decision in the circumstances is an admission by the court that the applicant is only interested in or seeking for reasonable provision, but comes to court by the wrong procedure or files the wrong application.  The best approach under those circumstances should be the dismissal of the objection, confirmation or revocation proceedings. The court, while dismissing the said proceedings, should advise the aggrieved party to bring the proper application under section 26 of the Act. 

This was the approach adopted by Onyango Otieno J in In the Matter of the Estate of Manibhai Kisabhai Patel (deceased) Nairobi HCSC (Milimani) No. 2340 of 1996, Kasanga Mulwa J in In the Matter of the Estate of Fatuma binti Mwanzi Umri (deceased) Nairobi HCP&A No. 21 of 1994 and Kamau J in In the Matter of the Estate of Syed Mohammed Arshad Shah Syed Hakamsh (deceased) Nairobi HCSC No. 518 of 1997. In In the Matter of the Estate of Abdehusein Ebrahimji Nurbhai alias Abdehusein Nurbhai Adamji (deceased) Mombasa HCSC No. 91 of 2001, Khaminwa J in dismissing an application for revocation of grant, stated that the applicant was apparently complaining about provision. The court pointed out provision is made for the dependants of the deceased under Part III of the Act. It was emphasised that the application for provision has to be made to court and the same does not involve the revocation of the grant. The court concluded that since such an application had not been made the court could not make any orders under section 26 of the Act. Similarly, Koome J in In the Matter of the Estate of David Wahinya Mathene (deceased) Nairobi HCSC No. 1670 of 2004, while dismissing an objection to the making of grant pointed out that where the claim is that the applicant were not provided for the right cause of action is to apply for reasonable provision out of the estate through section 26 of the Lwa of Succession Act.

 

19.4 Time Limit for the Application

Under section 30 of the Law of Succession Act the application may be made at any time before the confirmation of the grant. Rule 45(1) of the Probate and Administration Rules envisages two situations: where the application is brought before the petition for grant is lodged, and where the application is brought after the filing of the petition for or the making of the grant but before the grant is confirmed. The estate is distributed after the confirmation of the grant. The application for reasonable provision should therefore be made before the distribution of the estate (In the Matter of the Estate of Syed Mohammed Arshad Shah Syed Hakamsh (deceased) Nairobi HCSC No. 518 of 1997 (Kamau J).  

 

This above position, however, makes the family provisions only of utility in testate succession cases because the contents of the will are made public before the making of the grant, and in intestacy where an heir is not listed in the application for grant among the survivors and persons entitled to benefit from the estate. It would be of little use to an heir in intestacy who is in the list of survivors but who is subsequently inadequately provided for during the confirmation process. Such an heir has a remedy, however, in revocation proceedings or in an application for a review of or setting aside of the confirmation order.

 

19.5 The Test of Reasonable Provision

The court may only order provision for an applicant falling within the categories set out in section 29 of the Law of Succession Act if it is satisfied that either the deceased’s will, if any, or the rule of intestacy if the deceased died without leaving a valid will, or gift in contemplation of death, or a combination of all three or of any two of them, do not make ‘reasonable provision’ for the applicant (section 26 of the Law of Succession Act). Section 28 of the Law of Succession Act sets down the standard of ‘reasonable provision’ (In the Matter of the Estate of Sadhu Singh Hunjan (deceased) Nairobi HCSC No. 107 of (2002).

 

The majority of the bench in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. 213 of 1997 (Akiwumi and Shah JJA) held that section 28 was in mandatory terms, the court should only consider the matters set out in the provision. The majority also stated that the provision does not allow the consideration of African customary law as suggested by Bosire JA and by the judge in the superior court. In their opinion the clear wording of section 28 did not leave room for the consideration of African customary law.  According to Bosire JA, in his dissenting judgement, what amounts to reasonable provision is not defined in the Act or the rules. All the Act does at section 28 is to set out the court may look at. In Bosire JA’s opinion, section 28 of the Act does not limit the matters that the court may consider in making the order as it is not exhaustive. He further expressed the opinion, with respect to the concept of reasonableness, that each case should be looked at in the context of its peculiar circumstances, since what is reasonable in one case may not be in another. Reasonableness has to be considered in light of the applicant’s circumstances as at the time of the hearing. 

 

Visram J in In the Matter of the Estate of Humphrey Edward Githuru Kamuyu (deceased) Nairobi HCSC No. 2322 of 1995, without referring to John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. 213 of 1997, appeared to agree with the position taken by Bosire JA. Visram J considered Kikuyu customary law in deciding on the reasonableness of provision in that case, the point that a heir may be disinherited if he is cruel to his parents.

 

Reasonable provision is not necessarily fair distribution of the estate (In the Estate of Cecil Henry Ethelwood Miller (deceased) Nairobi HCSC No. 1100 of 1991 (Githinji J) and In the Matter of the Estate of Ashford Njuguna Nduni (deceased) Nairobi HCSC No. 1589 of 1994 (Waweru J)). Shah JA, in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. 213 of 1997, stated that the question 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 the applicant. It is not for the court to step into the shoes of the testator and substitute for the will what it thinks the testator should have done. 

 

The Court of Appeal in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. 213 of 1997, expressed conflicting opinions on whether reasonable provision also means adequate provision. Bosire JA considered the use of the term ‘adequate provision’ by the judge of the superior court as a slip on that judge’s part. In Bosire JA’s opinion, reasonable provision does not mean adequate provision. This contrasts with Shah JA’s opinion. He stated at one point that ‘sections 26, 27 and 28 of the Act cater for provision for dependants of the deceased not adequately provided for by will or in intestacy’. At another portion of his judgement he said ‘… section 26 of the Act provides only the power to make reasonable provision for a dependant who has not adequately provided in the will of the deceased’. Apparently, a section of the judiciary interpret reasonable provision as being the same as adequate provision. Some judges, such as Kuloba J in In the Matter of Sadhu Singh Hunjan (deceased) Nairobi HCSC No. 107 of 1994, avoid the use of the word ‘adequate’ altogether. 

 

The problem with the use of the term ‘adequate provision’ is a creation of the Act itself. The body of section 26 does not have the term. It simply provides for the making of reasonable provision where none has been made. The term ‘adequate’, however, appears in the marginal notes to section 26, which describe it as a ‘provision for dependants not adequately provided for’.

 

The provisions of section 28 are specific to applications brought under Part III of the Act. They are not for application where the court is called upon to deal with disputes relating to distribution of estates in intestacy. A section of the High Court treats section 28 as of general application, instead of limiting it to applications brought under section 26 of the Law of Succession Act.  This approach is wrong because section 28 clearly indicates that in considering whether any order should be made under Part III of the Act the court should consider the matters set out in the section, it does not apply to applications brought under other Parts of the Act. 

 

19.6 The Circumstances to be Considered 

Section 28 gives the guidelines that should assist the court in deciding whether the deceased has made ‘reasonable provision’ for the applicant, and whether to exercise its discretion under section 26 of the Act and make an order.

 

(a) The nature and amount of the deceased’s property.

The court should consider whether the estate has sufficient assets to meet the demands of the applicant.  Visram J in In the Matter of the Estate of Humphrey Edward Githuru Kamuyu (deceased) Nairobi HCSC No. 2322 of 1995, made the point that only the free estate of the deceased is available for the purposes of section 26 of the Act. In the instant case, the property, which the applicant was claiming, had been transferred to other people before the will was made. In In the Matter of James Ngengi Muigai Nairobi HCSC No. 523 of 1996, Koome J, before making the order for reasonable provision, considered the fact that the estate of the deceased was vast.  The court would be reluctant to interfere in the case of small estates (Re Fullard (1981) 2 All ER 796. To discourage applications with respect to small estates where costs are likely to exhaust the estate the court should consider burdening the unsuccessful applicant with the costs. 

 

(b) Any past, present or future capital or income from any source of the dependant.

The court should have regard to the earnings or income, earning capacity, pensions and social security benefits of the applicant in ascertaining the applicant’s capital and financial resources. Koome J in In the Matter of the Estate of Benson Joseph Omondi Awinyo (deceased) Nairobi HCSC No. 1183 of 2002, considered the fact that the applicant was a pensioner and was receiving financial support from his other children.  The applicant’s financial obligations and responsibilities should also be taken into account.

 

(c) The existing and future means and needs of the dependant.

Account should be given to the applicant’s current and future earnings and earning capacity, as well as the present and future needs of the dependant. The physical, financial and emotional circumstances of the applicant should be considered. Visram J in In the Matter of the Estate of Humphrey Edward Githuru Kamuyu (deceased) Nairobi HCSC No. 2322 of 1995, stated that the applicant must demonstrate the need to be provided for under section 26 of the Law of Succession Act. 

 

In In the Matter of the Estate of Ashford Njuguna Nduni (deceased) Nairobi HCSC No. 1589 of 1994, Waweru J took into account the fact that the first applicant, the mother of the deceased, was elderly and had no dependants, and decided that the property given to her in the will was adequate. With regard to the other applicants, who were the brothers of the deceased, the court considered that they were middle aged, in good health and capable of taking care of themselves. The court was not convinced that these applicants did not have any income from their own pre-occupations or that they were wholly dependent on the deceased. In In the Matter of the Estate of Clement Albert Etyang (deceased) Nairobi HCSC No. 1099 of 2002, where the dependant was a four year old grandchild of the deceased, Koome J considered the child’s future needs to be regarding his welfare and education.  (In the Matter of the Estate of Manibhai Kisabhai Patel (deceased) Nairobi (Milimani) HCSC No. 2340 of 1996 (Onyango-Otieno J)..

 

(d) Any advancements or other gifts made by the deceased to the dependant   during the deceased’s lifetime

Any inter vivos gifts made to the applicant by the deceased during the applicant’s lifetime should be taken into account. In In the Matter of the Estate of Benson Joseph Omondi Awinyo (deceased) Nairobi HCSC No. 1183 of 2002 (Koome J), the court considered that the deceased, shortly before his death, had given a vehicle to the applicant. A nomination made in favour of the mother of the deceased was also considered.  

 

(e) The conduct of the dependant in relation to the deceased

The conduct of the applicant towards the deceased could be positive or negative (Williams vs. Johns (1988) 2 FLR 475). The Court of Appeal in John Gitata Mwangi and others vs. Jonathan Njuguna Mwangi and others Nairobi CACA No. of 213 of 1997 (Akiwumi and Shah JJA, with Bosire JA dissenting), considered the fact that one of applicants was not in good terms with the deceased. He had emigrated to another country and hardly kept in contact with the deceased. He did not even attend the deceased’s funeral: he apparently came home to present and prosecute the application for reasonable provision out of the estate. The other applicant was found to have also had problems with the deceased.  

 

In In the Matter of the Estate of Humphrey Edward Githuru Kamuyu (deceased) Nairobi HCSC No. 2322 of 1995, Visram J took into account that the relationship between the applicant and the deceased was less than cordial. The deceased had in fact stated in his will that the applicant had treated him with disrespect. The deceased had even been forced to seek protection of the police from the applicant and two other sons. The applicant and his errant brothers had also written to the deceased’s bankers asking that the deceased be prevented from withdrawing money from his own account. They had also sought to prevent the deceased from dealings with land registered in his name.

 

(f) The situation and circumstances of the case, including the deceased’s reasons for not providing for the dependant

This is a general or omnibus provision that should cater for all the other reasons and excuses that explain the deceased’s conduct. One such consideration are the deceased preferences. In Elizabeth Kamene Ndolo vs. George Matata Ndolo Nairobi CACA No. 128 of 1995 (Gicheru, Omolo and Tunoi JJA), the Court of Appeal took into account that appellant was the deceased preferred wife, and in exercising its power under section 26 gave her house a larger share of the deceased estate. In In the Matter of the Estate of Benson Joseph Omondi Awinyo (deceased) Nairobi HCSC No. 1183 of 2002 (Koome J), the court considered the circumstances of the widow of the deceased, the possibility that she had the same condition which led to the deceased’s death, and the fact that she would need funds for medical care. 

 

Kuloba J in In the Matter of Sadhu Singh Hunjan (deceased) Nairobi HCSC No. 107 of 1994, where the applicants were the daughter-in-law of the deceased and his grandchildren. The first applicant’s husband died a year after the deceased. The court took into account the fact the applicants were directly dependent on the deceased during his lifetime as their breadwinner was alive and in fact survived the deceased. Secondly, the applicants’ breadwinner had been reasonably provided for in the deceased’s will, and it really fell upon him to provide for the applicants in his own will, or if he did intestate, the applicants be provided for from his estate. In the opinion of the court, the applicants’ complaint appeared to be that their fortunes had changed for the worse rendering them destitute; which circumstance is not countenanced by sections 26 and 28 of the Law of Succession Act.

 

19.7  Property Available for Reasonable Provision

If the court decides to make an order in favour of a dependant, the order is made against the ‘net estate’ of the deceased (section 26 of the Law of Succession Act). The ‘net estate’ is defined in section 3(1) of the Law of Succession Act to mean the estate of the deceased person after payment of the statutory expenses, that is: funeral expenses, debts and liabilities, and expenses relating to the administration of the estate. According to Visram J in In the Matter of the Estate of Humphrey Edward Githuru Kamuyu (deceased) Nairobi HCSC No. 2322 of 1995, only the free estate of the deceased would be available for reasonable provision. A nomination is not free property, and therefore it is not available for reasonable provision contrary to Koome J’s decision in In the Matter of the Estate of Benson Joseph Omondi Awinyo (deceased) Nairobi HCSC No. 1183 of 2002.

 

 19.8  Forms of Provision

Under section 27 of the Law of Succession Act the court has discretion to make one or more of the following orders once it is satisfied that reasonable provision has not been made for the applicant, namely: a specific share of the estate be given to the applicant, or periodical payments, or a lump sum payment. This list is not exhaustive and the court may make any other orders that it may consider fit and just in the circumstances.

 

(a) Transfer of a specific asset

This entails the allocation of a particular asset to the applicant out of the net estate. In In the Matter of the Estate of Benson Joseph Omondi Awinyo (deceased) Nairobi HCSC No. 1183 of 2002, Koome J awarded a particular asset to the applicant: a motor vehicle. In In the Matter of the Estate of James Ngengi Muigai (deceased) Nairobi HCSC No. 523 of 1996 (Koome J), the court after ordering reasonable provision for the dependants out of the estate, directed two particular assets be vested or transmitted to them. In Elizabeth Kamene Ndolo vs. George Matata Ndolo Nairobi CACA No. 128 of 1995 (Gicheru, Omolo and Tunoi JJA), the Court of Appeal directed that the land the subject of the proceedings be subdivided into specified portions between the three houses. In In the Matter of the Estate of Ashford Njuguna Nduni (deceased) Nairobi HCSC No. 1589 of 1994, Waweru J directed the applicants be given portions of a particular asset.

 

(b) Periodical payments

This is usually of a specified sum, or a sum equal to the whole or to some specific part of the income of the net estate, or periodical payments of the income produced from capital of the estate appropriated for the purpose.

(c) A lump sum payment

This may be by instalments. Such orders are common where the applicant was a spouse of the deceased or where the estate is small so that the amount of income produced for maintenance would be insufficient. In In the Matter of the Estate of Clement Albert Etyang (deceased) Nairobi HCSC No. 1099 of 2002 (Koome J), ordered that a sum of Kshs. 400 000.00 be the reasonable provision for the minor applicant. In In the Matter of the Estate of Benson Joseph Omondi Awinyo (deceased) Nairobi HCSC No. 1183 of 2002 (Koome J), awarded a lump sum of Kshs. 100 000.00 to the applicant. (In the Matter of the Estate of Manibhai Kisabhai Patel (deceased) NBI HCSC (Milimani) No. 2340 of 1996 (Onyango-Otieno J)..

 

19.9 The Effect and Burden of the Order

The effect of the order is to alter the disposition of the estate of the deceased from the date of the death of the deceased for all purposes. The successful applicant is put in the position of a beneficiary.

 

CHAPTER TWENTY

20 DISCLAIMERS AND VARIATIONS

 

20.1 Introduction

Although a testator has the power to dispose of all his or her property by will to whomever they wish, after the testator’s death the terms of the will or the rules of intestacy can be varied by the court under section 26 of the Law of Succession Act in order to make provision for certain categories of persons. A testator can dispose of property by will to whomever he wishes, but a beneficiary cannot be compelled to accept a gift. This also applies to entitlement to gifts on intestacy. A beneficiary who does not wish to accept a gift, for whatever reason, may either disclaim the gift or effect a variation to the will or the operation of the rules of intestacy.

 

20.2 Reasons for Refusing a Gift or Entitlement

20.3 Disclaimers

A disclaimer is a rejection by a beneficiary of the property left to her under a will or to which he is entitled under the intestacy rules. It may be voluntarily made, usually because of a contract (Re Clout and Frewer’s Contract (1924) 2 Ch 230). To effect a disclaimer, the beneficiary should inform the personal representatives of his intention to disclaim.. It can be done orally or in writing. In In the Matter of the Estate of Huseinbhai Karimbhai Anjarwalla Mombasa HCP&A No 118 of 1989 (Waki J), the disclaimer  took the form of a deed filed in court before the grant was issued. Where the disclaimer is made by an unincorporated association or by a body corporate, this should in either case be by resolution. The consent of the personal representatives is not required for a disclaimer.

 

In intestacy all the persons entitled to a share of the estate should be provided for unless they have disclaimed the right to the share. In In the Matter of the Estate of Mariko Marumbi Kiuru (deceased) Nairobi HCSC No. 2011 of 1997 (Ang’awa J), it was stated that the Law of Succession Act takes into account daughters in the distribution of the estate unless there is a disclaimer of the right to inheritance by the daughters. In In the Matter of the Estate of Benjamin Mugunyu Kiyo (deceased) Nairobi HCSC No. 2678 of 2001, Ang’awa J stated that where a beneficiary or heir does not wish to take up their share they are at liberty to disclaim their right to the estate. In In the Matter of the Estate of Grace Nguhi Michobo (deceased) Nairobi HCSC No. 1978 of 2000, Koome J held that all the children of the deceased (whether male or female) are treated equally by the Law of Succession Act, and, unless a child has willingly disclaimed their interest, they should not be denied their inheritance merely because of their marital status.

 

The right to disclaim is subject to some limitations. In the first place, a beneficiary cannot disclaim once they have accepted the entitlement that is upon having their entitlement transferred to them or by receiving interest or income form the property. Secondly, if a beneficiary wishes to disclaim their entitlement, they have to disclaim the whole of their entitlement under the rules of intestacy or their entire gift under a will. A disclaimer cannot be partial. Thirdly, if a beneficiary disclaims their gift, whether under a will or under the rules of intestacy, she cannot select the person or persons who are to take it in their place.

 

Once the beneficiary has disclaimed their gift, the property passes as if the gift to beneficiary had failed. If the disclaimed gift by will is a non-residuary gift, the property will fall into residue. If the disclaimed gift is a residuary gift in a will, it will pass on intestacy. However, if the beneficiary disclaiming is a joint tenant or the gift is a class gift the property passes to the surviving joint tenant or members of the class. If the property disclaimed is part of the beneficiary’s entitlement on intestacy, it will pass to the other members of the same class of beneficiaries or, if there none, to the class of persons next entitled. The main shortcoming of a disclaimer is that the beneficiary loses control over the final destination of the property that they have disclaimed. It is often the case that the disclaiming beneficiary wishes to select the persons to take their place. This is not possible through a disclaimer, but it can be achieved through a variation.

(In the Matter of the Estate of Ellah Warue Nthawa (deceased) Nbi HCSC No. 971 of 2001 (Ang’awa J)

 

20.4 Variations

A variation takes the form of a direction from a beneficiary to the personal representatives, to transfer all or some of the entitlement of the beneficiary to someone else. It amounts to an inter vivos gift by the beneficiary to another. Since a variation is effectively an inter vivos gift, it might be thought that the formalities necessary to effect an inter vivos gift have to be complied with.  There are differences between a variation and a disclaimer. Firstly, the original beneficiary can control the ultimate destination of the property as he decides who is to benefit in his place. Secondly, unlike a disclaimer, which cannot be partial, a partial variation can be made. Thirdly, a beneficiary can still effect a variation once property has been accepted, and even after the estate has been completely administered.