THE LAW OF SUCCESSION BY KIMANZI ALICE PART 2

PART THREE: INTESTACY
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CHAPTER NINE

9. 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 (see 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 the Law of Succession Act[lxxxi].  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 (section 2(1) of the Law of Succession Act). 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[lxxxii]. The application of Part V of the Act by Koome J, in In the Matter of the Estate of Gathererie Muturi (deceased) Nairobi HCSC No. 2170 of 1999, to the estate of a person who died in 1967 was wrongful. So was the decision in In the Matter of the Estate of Grace Nguhi Michobo (deceased) Nairobi HCSC No. 1978 of 2000 (Koome J), where the deceased passed away in April 1981, that is before the Act came into force on 1st July 1981, yet Part V of the Act was applied to the estate. So was the decision of the Court of Appeal in Cleopas Simiyu and another vs. Maurise Barasa Watambala and others Nairobi CACA No. 34 of 1984 (Hancox JA, Nyarangi and Platt Ag. JJA), where section  40 of Part III 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 In the Matter of the Estate of Benson Ndirangu Mathenge (deceased) Nakuru HCSC No. 231 of 1998, 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 the Act. The Minister (Attorney General) in 1981 exempted property[lxxxiii] 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.[lxxxiv] 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.[lxxxv]

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 (1995-1998) 1 EA 229 (Gicheru, Kwach and Shah JJA), 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 todate.

In another matter John Kinuthia Githinji vs. Githua Kiarie and others (Civil Appeal No. 99 of 1988) Gachuhi JA, while discussing the Law of Succession Act, similarly went on a wrong tangent and remarked obiter dicta:

...The other aspect of the claims is under the provision of the law where a person dies without making either a written or oral will.  This will be in the case of intestacy.  The distribution on intestacy shall be governed by the law or custom applicable to the deceased’s community or tribe as the case may be.

The High Court has been consistent in maintaining the correct interpretation of sections 32 and 33 of the Act. The interpretation given by Bosire J. (as he then was) in Mwathi vs. Mwathi was correct.  Githinji J also correctly interpreted the provisions in In the Matter of Estate of Kihara Githambaa (Deceased) HCP&A No. 364 of 1989[lxxxvi]. Two wives and seventeen children survived the deceased.  The first wife had four sons and four daughters while second wife, Virginia, had two sons and seven daughters. Of the seven daughters of Virginia, four were married, three were unmarried.  Of the three unmarried one had three children, one child and the other did not have children. Two of the first wife’s sons claimed that the deceased had made an oral will recorded in a book that the deceased kept.  The effect of the alleged oral will was to give the prime land to the six sons of the deceased equally and to direct how the land was to be subdivided.  The distribution of the deceased’s other pieces of land would be to the six sons equally.  The effect was to deny the surviving widow and her unmarried daughters a share of the deceased’s pieces of land named in the alleged oral will. The court found that there was a written will that was invalid for lack of attestation and execution.  It was ordered that the estate be distributed in accordance with the law of intestacy. The sons sought to rely on section 33 of the Act arguing that the estate ought to be distributed in accordance with the Kikuyu Customary Law.  Githinji J. said of section 33:-

Section 33 refers to the distribution of properties specified in section 32 of the Law of Succession Act situated in the areas as the minister may by notice in the Gazette specify.  There is no evidence that the minister by the Gazette Notice has specified that the lands located in the area the estate is situated should be distributed as provided under section 33 of the Law of Succession Act … in any case the deceased died after the Law of Succession Act came into operation and the law applicable by virtue of section 2(1) of the Law of Succession Act is the Law of Succession Act (Part V).

The court then proceeded to apply Part V of the Act to the estate, providing for the sons and unmarried daughters of the deceased.[lxxxvii]

In In the Matter of the Estate of Benson Kagunda Ngururi (deceased) Nakuru HCSC No. 341 of 1993 (Ondeyo J), the property was situated in Elburgon in Nakuru district. The issue which fell for determination was whether customary law applied to the estate of the deceased intestate. The court found that the deceased had died after the Act came into force, which meant that the Act was the applicable law in the circumstances. It was further held that property in Nakuru district was not exempt from the intestacy provisions, as Nakuru was not included among the districts in Legal Notice No. 94 of 1981. In In the Matter of the Estate of Elijah Mbondo Ntheketha (deceased) Nairobi HCSC No. 193 of 1997, Koome J stated that the only areas excluded from the application of the intestacy provisions are those specified in a gazette notice in accordance with section 32 of the Act. In the instant case the court found that the area the subject of the dispute was not excluded from the application of Part V of  the Act.

The Court of Appeal’s decision in Rono vs. Rono and another (2005) 1 EA 363 (Omolo, O’Kubasu and Waki JJA), 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 Uasin Gishu 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 Uasin Gishu district and therefore Keiyo customary law could not apply to the intestate estate of a resident of Uasin Gishu district.

Some decisions from the High Court give a wrong interpretation and application of sections 32 and 33 of the Law of Succession Act. In  In the Matter of the Estate of Joseph Muchiri Komu (deceased) Nakuru HCSC No. 441 of 1998, Ondeyo J correctly stated that under section 33 the law applicable to the distribution on intestacy of the properties specified in section 32 is the law or custom applicable to the deceased’s community. She, however, did not consider whether the minister had gazetted, as required by section 32, property in Thika district as being subject to sections 32 and 33 of the Act. The court fell into error when it assumed that ‘agricultural land’ in section  32 applied to all agricultural land in the country, instead of being limited to the  agricultural land in the areas specified in Legal Notice No. 94 of 1981. She said in one part of her decision:

If it turns out to be that the subject land is agricultural land, then the personal law of the community of the deceased person would apply to it to determine who inherits it; in which case, the applicants, who are said to be the deceased persons married sisters will have to prove that under the personal or customary law of their community, they would be entitled to inherit their dead brothers piece of land.

With respect the finding was incorrect. Under section 33 customary law, in the circumstances, applies only to such land as has been exempted from the provisions of Part V of the Act. Property in Thika district has not been so exempted.

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.[lxxxviii] 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 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.

A spouse’s exact entitlement under the rules of intestacy depends on the closeness of any other surviving relatives of the intestate. One of two situations apply: the intestate leaves a spouse and issue, or the intestate leaves a spouse and parent(s) or brother(s) and sister(s) of whole blood.

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 the Matter of the Estate of Aggrey Makanga Wamira Msa HCSC No. 89 of 1996 (Waki J). 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.[lxxxix]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 the Matter of the Estate of Anjuri (Deceased) HCP&A 357 of 1997 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.[xc]

A proviso to section 35(1) states that if the surviving spouse is a widow the life interest determines upon her remarriage. In In the Matter of the Estate of Charles Muigai Ndung’u (deceased) of Karinde Kiambu District Nairobi HCP&A 2398 of 2002 (Koome J), the woman who had been cohabiting with the deceased was held by the court to be a wife arising from a prolonged cohabitation. The court, however, found that she was not entitled to a life interest as she remarried after the demise of the deceased, but her child with the deceased was found to be the sole heir to the estate of the deceased.

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 In the Matter of the Estate of Basen Chepkwony (deceased) Nairobi HCSC No. 842 of 1991, 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 provision. In the circumstances the decision of Kimaru J in In the Matter of the Estate of Tabutany Cherono Kiget (deceased) Kericho HCP&A No.157 of 2001 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.[xci] 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 provision is silent on what becomes of 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. The Court of Appeal in Willingstone Muchigi Kimari vs. Rahab Wanjiru Mugo Nairobi CACA No. 168 of 1990 (Gachuhi, Muli and Akiwumi JJA) held that the property, that is the remaining 80% and the final destination of the property the subject 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 or any award of the court made under section 35(3) and (4). In In the Matter of the Estate of Johana Olishorua Leseya (deceased) Nairobi HCSC No. 3084 of 2002, Aluoch J stated that section 35, read together with section 58(1) of the Act where there are minor children, means that the surviving spouse holds the property as a trustee as the surviving spouse only enjoys a life interest in the net intestate estate.

Under section 35(2), a surviving spouse has the power of appointment, that is the power to dispose of the capital of the intestate by 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 (see section 35(5) of the Act).  In In the Matter of the Estate of the Late Wanjihia Njuguna (deceased) Nairobi HCSC No. 533 of 2002, Ang’awa J postponed the confirmation of grant to allow the parties to disclose daughters, if any, in compliance with section 35. In In the Matter of the Estate of Kinyuru Karanja (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.[xcii]  Omolo JA in Rono vs. Rono and another (2005) 1 EA 363 expressed the opinion that section 40 does not provide that each child must receive the same or equal portion. In his opinion, this would work an injustice, particularly in the case of a young child who is still to be maintained, educated and generally seen through life.

Where the intestate has left a surviving child or children but no spouse section 38 applies.[xciii] The net intestate estate devolves upon the child or children. In In the Matter of the Estate of Dorcas Njeri Githuku (deceased) Nairobi HCSC No. 1968 of 2002 (Koome J), the deceased was survived by one child, a married daughter, and it was held that she was her sole survivor and therefore the person entitled to the estate under section 38. It was held that the stepchildren of the deceased did not have a superior claim to that of the deceased’s own married daughter. Where there are more than one the estate is divided equally among them.[xciv]In In the Matter of the Estate of Mary Wanjiru Thairu (deceased) Nairobi HCSC No. 1403 of 2002 (Ang’awa J), a son and six daughters survived a single parent.   The son attempted to inherit the entire estate. His application was rejected. In In the Matter of the Estate of Ellah Warue Nthawa (deceased) Nairobi HCSC No. 971 of 2001 (Ang’awa J), two sons and a daughter survived the deceased. It was proposed that the majority of the properties be divide d equally between the two sons, with the female survivor getting a small portion. The money in the bank was  to be shared by the sons equally to the exclusion of the daughter. The court rejected the proposal on the basis that section 38 envisages the equal division of the estate amongst all the children.

In In the Matter of Estate of George Karegwa Gitau (deceased) Nairobi HCSC No. 959 of 2001 (Ang’awa J), where the deceased was survived by two sons and two daughters, the court accepted the proposal  to have the property shared equally between the four children as being in keeping with section 38 of the Law of Succession Act. In In the Matter of the Estate of Wilson Wamagata (deceased) Nairobi HCSC No. 261 of 1998 (Waweru J), the deceased was survived by six children, and one of them sought to get a larger share of the estate on the grounds that he had helped the deceased in paying off a debt. The court held that it was bound by section 38, which required that the estate be divided equally among all the six children. In In the Matter of the Estate of Loice Njeri Ngige Eldoret HCP&A No. 113 of 1994 (Nambuye J), the deceased, who was single, was survived by a minor daughter, and it was held that she was entitled to the estate.

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 (In the Matter of the Estate of Charles Muigai Ndung’u (deceased) of Karinde Kiambu District Nairobi HCP&A No. 2398 of 2002). Section 41 provides that the share of the children is to be divided equally between the children  of the intestate living or en ventre sa mere, subject to such children fulfilling the contingency of attaining the age of eighteen years or, in case of female children, marrying under eighteen. In In the Matter of the Estate of Joseph Kimemia Gichuhi Nairobi HCSC No. 1072 of 2002, Koome J stated that section 41 of the Act requires that the property devolving upon the children should be held in trust for the children until they attain the age of eighteen. In In the Matter of the Estate of Loice Njeri Ngige Eldoret HCP&A No. 113 of 1994 (Nambuye J), the court directed the administrators to open bank accounts on account of the minor survivor. It was further directed that the administrators’ trusteeship was to terminate upon the minor survivor coming of age when all the property held in trust for her should revert to her.

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[xcv] 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 ventre sa mere at the date of the intestate’s death will take in equal shares per stirpes contingent 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 (Teresia Wambui Maruhi vs. Onesmus Maina Maruhi and another Nairobi HCCA No. 3 of 2002 (Kamau J).

Reference to children does not distinguish between sons and daughters, neither is there distinction between married and unmarried daughters. In In the Matter of the Estate of Dorcas Njeri Githuku (deceased) Nairobi HCSC No. 1968 of 2002, Koome J stated that the definition of child is without reference to the child’s gender or marital status. In Peter Kiiru Gathemba and others vs. Margaret Wanjiku and another Nairobi HCCA No. 167 of 1994, Amin J stated that the Law of Succession Act does not make a distinction between married and unmarried children in matters of intestate succession. In In the Matter of the Estate of Mariko Marumbi Kiuru (deceased) Nairobi HCSC No. 2011 of 1997, Ang’awa J stated that the Law of Succession Act takes into account women in the distribution of the estate. She stressed that unless there is a disclaimer by the daughters, they, whether married or not, will be entitled to the estate.  Rawal J in In the Matter of the Estate of Mwaura Gathari (deceased) Nairobi HCSC No. 1678 of 1999 pointed out that the Act does not discriminate between male and female children.[xcvi] Waki JA stated similarly in Rono vs. Rono and another (2005) 1 EA 363, where he said that there is no discrimination of the children on account of their sex.

Unfortunately, some of the male members of the High Court bench still apply customary law in determining questions of distribution of estates as between male and female children, in spite of the very clear provisions in sections 35 and 38 of the Act. In In the Matter of the Estate of Mutio Ikonyo (deceased) Machakos HCP&A No. 203 of 1996, the deceased had died in 1988, and the court held that a married daughter of the deceased was not entitled to a share of the estate.  According to Mwera J the married daughter, being a Kamba, ought to have known that under Kamba customary law only unmarried daughters or those divorced (and dowry returned) can claim to inherit. With respect, customary law is of no application at all; its application having been ousted by sections 2(1), 35 and 38 of the Act. In In the Matter of the Estate of Kamau Mwangi (deceased) Nairobi HCSC No. 1579 of 1994, Osiemo J implied that it is a matter of generosity for a married daughter to get a share of her deceased father’s estate.

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.[xcvii] Marriage is not a factor in determining a child’s right to inherit his father. Mwera J in In the Matter of the Estate of Jonathan Mutua Misi (deceased) Machakos HCP&A No. 95 of 1995, held that a child of an adulterous union is entitled to inherit his father as he is his progeny and cannot be expected to prove his mother’s marriage to his father. 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.

Section 38 of the Law of Succession Act applies to the estates of persons dying after the Act came into force. For those who died before 1st July 1981, the applicable is the law that was applying at the time, that is to say the African customary law of intestate succession. It would be wrong in the circumstances for the court to apply section 38 in distributing the estate of a person who died in 1967 as Koome J did in In the Matter of the Estate of Gathererie Muturi (deceased) Nairobi HCSC No. 2170 of 1999.

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.[xcviii] 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.[xcix]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. In In the Matter of the Estate of Fatuma binti Mwanzi Umri (deceased) Nairobi HCP&A No. 21 of 1994, the deceased was survived by her son and a brother. Kasanga Mulwa J held that the son was the sole heir in intestacy; the brother could only access the estate through section 26 of the Act.

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). According to the Court of Appeal in Willingstone Muchigi Kimari vs. Rahab Wanjiru Mugo Nairobi CACA No. 168 of 1990 (Gachuhi, Muli and Akiwumi JJA), 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.

In In the Matter of the Estate of Henry Ng’ang’a Wangendo (deceased) Nairobi HCSC No. 528 of 2000 (Ang’awa J), the deceased was survived by his mother only. The court held that the law allows and specifically states that where the deceased has no spouse or children the next in line by way of consanguinity are the parents, and the mother was therefore the sole survivor and heir of the deceased. In In the Matter of the Estate of Joseph Muchiri Komu (deceased) Nakuru HCSC No. 441 of 1998, Ondeyo J held that section 39 recognises the rights of sisters of a deceased person who dies intestate without a wife or children and parents. In the Matter of the Estate of Beatrice Amalemba HCSC No. 2610 of 2000 (Koome J), the deceased, a married woman, had been pre-deceased by her husband  and died without children. A dispute erupted between her father and her in-laws on who was entitled to inherit and administer her estate. In determining the matter the court followed section 39 of the Act and held that the father of the deceased had priority in law to be issued with the grant of letters of administration for the administration of the estate of his deceased daughter, the fact of marriage notwithstanding. In In the Matter of the Estate of Wamuhu Murimi (deceased) Nairobi HCSC No. 460 of 2002) (Koome J), the deceased, who died single and without children, was survived by a nephew and three nieces. The court directed that the estate fell for distribution under section 39 to the nephews and nieces in equal shares. The property the subject of Mwathi vs. Mwathi and another should have been divided in accordance with section 39 following the invalidation of the will of the deceased.

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 another (2005) 1 EA 363 (Omolo, O’Kubasu and Waki JJA), the 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 In the Matter of the Estate of Benson Ndirangu Mathenge (deceased) Nakuru HCSC No. 231 of 1998 (Ondeyo J), 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[c]. In the Matter of the Estate of Nelson Kimotho Mbiti (deceased) HCSC No. 169 of 2000, Koome J directed that the estate of a polygamist be divided in accordance with the provisions of section 40 of the Act.  The estate was divided into units according to the number of children in each house with the widows being added as additional units.[ci]

In In the Matter of the Estate of Mwangi Giture (deceased) HCSC No. 1033 of 1996 (Koome J), the quarrel between the two houses was over the distribution of the estate.  One house argued for equal distribution in accordance with customary law, while the other favoured distribution according to section 40 of the Act. It was held that the court had no discretion in the matter and was bound to follow section 40 of the Act, which provides that the estate be divided between the houses taking into account the number of children in each house. The court, however, decried the unfairness of the provision to the widows who are treated the same as the children. This unfairness is particularly glaring where the first wife participated in the acquisition of the greater part of the estate, but in the end has to take a share equal to that of the younger wife who is married many years after the acquisition of the bulk of the estate, and who has contributed very little to the acquisition of the assets making up the estate..

In Kuria and another vs. Kuria (2004) eKLR  (Musinga J), the dispute was on the distribution of the estate of the deceased between a son of deceased first wife of the deceased and surviving widow of the deceased on one hand and a married daughter of the deceased on the other. The son and widow based their claim on customary law arguing that since the daughter was married she was not entitled to inherit any share of the deceased’s land even if her disband died and she went back to her father’s land. The court ruled that the applicable law was section 40(1) of the Law of Succession Act, which does not discriminate between daughters and sons of a deceased person in matters of intestate succession. The estate was divided among the two houses according to the number of children in each house, adding the surviving widow as an additional init to the number of children. The children and the widow were altogether nine. The land was divided into nine equal units and each one of the nine survivors given a share each. It was further ordered that it was upon the married daughters to choose to surrender their shares to their siblings.

There is a trend by a section of the High Court where polygamists’ estates are distributed following the principles set out in section 28 of Part III of the Act and customary law, instead of section 40 of the Act. In In the Matter of the Estate of Chumo Arusei, Eldoret HCP&A No. 26 of 1998 (Nambuye J), the court applied customary law to the estate although the deceased died after the commencement of the Law of Succession Act. The court in distributing the estate did not follow section 40, but instead followed section 28 of the Act. The correctness of the court’s decision is doubtful. The law applying to the distribution of an intestate polygamist’s estate is section 40 in Part V of the Law of Succession Act and not African customary law. Section 28 of the Law of Succession Act will also not apply, except in cases where the court is handling an application under section 26 by a person asking for reasonable provision from the estate.

The court similarly wrongly applied African customary law and section 28 of the Act to an intestate polygamist’s estate in In the Matter of the Estate of Sila Kibiwott Rono Eldoret HCP&A No. 130 of 2000 (Nambuye J), where the polygamist’s family was unable to agree on the mode of distribution and invited the court for orders on distribution. Although the deceased had died in 2000, and therefore after the Act came into force, the court chose to apply Nandi customary law on distribution instead of section 40 of the Act. Further, the court expressed itself as being guided by section 28 of the Act, instead of sections 40, 41 and 42 of the Law of Succession Act. This was improper since section 28 of the Law of Succession Act only applies where the court is ruling on an application under section 26 for reasonable provision.[cii]

Juma J in In the Matter of the Estate of Wairia Muhoro (deceased) Nyeri HCSC No. 3 of 1999, Ondeyo J in In the Matter of the Estate of Evanson Kiragu Mureithi (deceased) Nakuru HCSC No. 163 of 1995 and Rimita J in In the Matter of the Estate of Amos Kiprono Sirma Nakuru HCSC No. 231 of 1994 improperly applied customary law in the division of estates of intestate polygamists who died after the Law of Succession Act came into force. In both matters it was ordered that the estates be divided equally between the two houses of the deceased, instead of being shared out in accordance with the provisions of section 40, 41 and 42 of the Act.[ciii]

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 (Willingstone Muchigi Kimari vs. Rahab Wanjiru Mugo Nairobi CACA No. 168 of 1990 (Gachuhi, Muli and Akiwumi JJA). In Re Barnett’s Trust (1) (1902) 1 Ch 847 (Kekewich J) it was stated that the state steps in and takes the property because there is no one who can claim the same through the deceased. It 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. In the instant case, an Austrian bastard, who was entitled to some property in England, died in Austria intestate and without heirs. The Austrian government claimed the property under Austrian law, but the English court held that the right claimed was not in the nature of a succession and that the British Crown was entitled to the property bona vacantia. In the Tanzanian case of Re Yusuf bin Simbani (Deceased) (1962) EA 623 (Horsfall Ag. CJ), a deceased person died intestate leaving no widow or kindred, and it was held that under the relevant law the property of an intestate who died in those circumstances devolved upon the state in bona vacantia.

The state holds a radical title to property which does not have an owner. In Dyke vs. Walford (2) (1848) 5 Moo P.C.C. 434 it was said that the origin of the right by the state to such property existed from the foundation of the monarchy and the right of the state to property which has no 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,[civ] 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 Willingstone Muchigi Kimari vs. Rahab Wanjiru Mugo Nairobi CACA 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 (Legitimacy Act)

(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 Willingstone Muchigi Kimari vs. Rahab Wanjiru Mugo Nairobi CACA No. 168 of 1990 (Gachuhi, Muli and Akiwumi JJA), 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.[cv] Under section 3(2) of the Law of Succession Act, the child has the same inheritance rights as the legitimate children of the intestate.

Usually no problem arises in relation to the  inheritance rights of children born as a result of invalid marriages as they are treated as if their parents were validly married. The problem usually concerns children born out of wedlock. Such children are entitled to inherit their mother’s property and her kindred’s property and they rank equal with the mother’s legitimate children. The illegitimate child is capable of inheriting from their natural father or from any person who regards him as his child. In the circumstances a child should be capable of inheriting the property of any man who has either officially adopted them or who has taken them into his household as his own. Where a child has not been adopted or where the mother has not married thus giving rise to the adoption of the child into her husband’s husband, the illegitimate child inherits from his natural father, if known or has expressly recognised the child as his. In other cases the court has to decide whether a particular person is the father of the child on a balance of probability. Where the child is known to be the illegitimate child of the deceased, he should rank equally with the legitimate children of the deceased for the purposes of inheritance to property. Such child is entitled to apply to court under section 26 as a dependant of the deceased where the deceased fails to adequately provide for the child by his will or the child is not adequately catered for in intestacy.

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.[cvi] Under the provision, the doctrine does not apply as between spouses, who are presumed in the circumstances to have died simultaneously.



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FOUR: PROTECTION OF ESTATES

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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, said 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.[cvii] 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, who had not yet taken out a grant, 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, the orders were presumably made 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.[cviii]

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.

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. 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, who has not taken a grant, is through the procedure for seeking accountability.


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 was 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.

Under section 8(1) of the Public Trustee 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.

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.

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

10.5 Protection under the Penal Code[4]

The Penal Code provides criminal sanctions for  protection of estates. Section 276 of the Penal Code makes the stealing of a testamentary instrument, whether the testator is living or dead, a crime, punishable by imprisonment for ten years. Concealing a will, with intent to defraud, is an offence under section 287 of the Penal Code. Under section 327 of the Penal Code any person who, being an executor, including an executor de son tort, or an administrator of the estate of a deceased person, destroys any property making up the estate with intent to defraud or with the intent to defraud converts the property to any unauthorised use, is guilty of a felony. The malicious damage of a testamentary instrument is a criminal offence under section 339(4) of the Penal Code. It is an offence under section 350 to forge  a will,[cix] while under section 358 it is criminal to demand payment upon a forged testamentary instrument.

(Francis Kamau Mbugua and another vs. James Kinyanjui Mbugua Nairobi HCCC No. 111 of 2004 (OS)




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PART FIVE: GRANTS OF REPRESENTATION

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CHAPTER ELEVEN

11. GRANTS 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 (In the Matter of the Estate of James Kiarie Muiruri (deceased) Nairobi HCSC No. 2413 of 2003 (Koome J).  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 court may limit a grant of representation as to property, purpose or time. It may also, in circumstances where the original personal representatives have not completed administration, issue a grant limited to completion of 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. He steps into the shoes of the deceased in the sense of being able to lawfully do such things as the deceased himself may have done if he were alive. The office of personal representative is one for life.

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.

Khamoni J in In the Matter of the Estate of Joseph Muchoki Muriuki (deceased) Nyeri HCSC No. 396 of 1999, stated that 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. Ang’awa J in In the Matter of Habakuk Ochieng Adede (deceased) Nairobi HCSC No. 721 of 2000 pointed out that the person who petitions for grant of representation is not necessarily the one who will inherit the deceased’s property. According to the court 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 & another (1991) KLR 105 (Gachuhi, Gicheru JJA and Cockar Ag. JA) 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. In Muigai vs. Muigai and another1995-1998) 1 EA 206 (Amin J) the court ordered that the grant be made to the Kenya Commercial Bank Limited.

(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 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 (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. In Re Russell’s Goods (1892) P. 380 trustees 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 Adamson (1875) LR 3 it 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.  In In the Matter of the Estate of Gathii Gatimu (deceased) Nairobi HCSC No. 599 of 1994 (Koome J) 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 grant made to 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 Musyoka (2005) eKLR  (Ang’awa J), a 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. (In the Matter of the Estate of Joseph Ogada Olunga (deceased) Nairobi HCSC No. 2517 of 2002) (Ang’awa J), In the Matter of the Estate of David Wahinya Mathene (deceased) Nairobi HCSCS No. 1670 of 2004 (Koome J))[cx].

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 Nairobi HCSC No. 967 of 1988 (Khamoni J). Where there are several personal representatives they all should be made parties to any suit by or against them (Sargent vs. Gautama (1968) EA 338 (Sir Clement de Lestang VP, Duffus and Spry JJA)).   

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 in In the Matter of the Estate of Charles Muigai Ndung’u (deceased)  of Karinde Kiambu District Nairobi HCSC No. 2398 of 2002 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.[cxi] According to Koome J in In the Matter of the Estate of Gathii Gatimu (deceased) Nairobi HCSC No. 599 of 1994, section 66 provides for preferences to be given to persons who should become administrators.

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. In In the Matter of the Estate of Aggrey Makanga Wamira Mombasa HCSC No. 89 of 1996, Waki J stated that priority in taking a grant should be given to the surviving spouse followed by the children by virtue of section 35, while the other relatives set out in section 39 take only where there is no surviving spouse and children. In Re Kibiego (1972) EA 179, Madan J said that a widow is the most suitable person to obtain representation to her deceased husband’s estate. According to the judge in the normal course of events she is the person who would rightfully, properly and honestly safeguard the assets of the estate for herself and her children. In In the Matter of the Estate of Beatrice Amalemba Nairobi HCSC No. 2610 of 2000, the contest for grant of letters of administration was between the father of the deceased on one hand and the mother-in-law and brother-in-law of the deceased on the other. Koome J held that grant be made to the father after considering who between the claimants would be entitled to inherit the estate by virtue of section 39 of the Law of Succession Act.

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 93(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 (Gitau and two others vs. Wandai and five others (1989) KLR 231 (Tanui J). The term is usually taken to refer to someone who is not the deceased’s personal representative, but who is acting as though they are (Mawji Narsi vs. Premji Purshottam (1918-22) 2 ZLR 47 (Reed J, Pickering J and Morris-Carter CJ) and Raphael Jacob Samuel vs. The Public Trustee and others Nairobi CACA No. 16 of 1980 (Law JA). 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 (Panayotis Nicolaus Catravas vs. Khanubai Mohamed Ali Harji Bhanji (1957) EA 234 (Lowe J). 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 as stated in Lalitaben Kantilal Shah vs. Southern Credit Banking Corporation Ltd Nairobi Milimani HCCC No. 543 of 2005 (Kasango J). 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.[cxii]  

In Kothari vs. Qureshi and another (1967) EA 564 Rudd 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 another (No 4.)  (1987) KLR 407(Nyarangi, Platt and Gachuhi JJA) where 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 Lalitaben Kantilal Shah vs. Southern Credit Banking Corporation Ltd Nairobi Milimani HCCC No. 543 of 2005, under 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.[cxiii]

11.7 Grant of  Letters of Administration with Will Annexed

A grant of letters of administration with the will annexed (also referred to as grant cum testamento annexo) is made in circumstances where the deceased dies leaving a valid will, but there is no proving executor (section 53(a) (ii) of the Law of Succession Act). This is usually the case where: the will does not appoint an executor (or executors) or the executor (or executors) appointed has pre-deceased the testator or the executor (executors) has renounced executorship or the executor (executors) appointed has been cited to take out a grant of probate and has failed to do so (section 63 the Law of Succession Act).

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 (sections 63, 64 and 65 of the Law of Succession Act).

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.[cxiv] 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. Each category is listed in priority; with preference being to spouses, descendants and ascendants in that order. Under section 66 the order of priority is as follows: the surviving spouse or spouses; the children of the intestate; the parents of the deceased; brothers and sisters of the whole blood and the issue of any deceased brother or sister who died before the intestate; brothers and sisters of the half-blood and the issue of any deceased brother or sister the half-blood who died before the intestate; and the relatives who are in the nearest degree of consanguinity up to and including the sixth degree.[cxv]In Re Kibiego (1972) EA 179 Madan 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 (section 66 (c)(d) the Law of Succession Act).

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[cxvi].

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.[cxvii]In Otieno vs.  Ougo and another(No. 4) (1987) KLR 407 (Nyarangi, Platt and Gachuhi JJA)[cxviii] 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.[cxix] In Troustik Union International and another vs. Mrs Jane Mbeyu and another. Nairobi CACA. No. 145 of 1991 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.

The decision in Troustik Union International and another vs. Mrs Jane Mbeyu and another. Nairobi CACA. No. 145 of 1991 was followed in Martin Odera Okumu vs. Edwin Otieno Ombajo HCSC No. 9479 of 1996 and  Coast Bus Services Limited vs. Samuel Mbuvi Lai  Nairobi CACA. No. 8 of 1996 (Gicheru, Tunoi and Shah JJA).[cxx] In Coast Bus Services Limited vs. Samuel Mbuvi Lai  Nairobi CACA. No. 8 of 1996, the Court of Appeal stated that an administrator is no entitled to bring an action as administrator before he has taken out letters of administration. If he does the  suit would be incompetent as at the date of inception. The doctrine of relation back of an administrator’s title, on obtaining a grant of letters of administration, to the date of the intestate’s death, cannot be invoked as to render the action competent. The court held on the facts of the case that the party lacked the standing to present a suit for the benefit of the deceased’s estate without a grant of representation at the time of filing suit. Mwera J in Peter Maundu Mua vs. Leonard Mutunga and another Machakos HCCC No. 305 of 1995, stated that for a person in law to represent an estate of a deceased person  he must be given such capacity and authority by the law, which capacity and authority comes by way of grant of representation. . Accordingly, a person without such grant cannot be termed a legal representative of an estate of a deceased person.[cxxi] The decision of Tuiyot J in Ann Kathanga vs. Mohamed Mjahid t/a C-Line Company and another Meru HCCC No. 74 of 1998, where he held that a widow does not need a grant of representation to sue on behalf of her deceased husband’s estate, is not good law..

The authority in Roman Carl Hintz vs. Mwang’ombe Mwakima (1982 -1988) 1 KAR 482 was held in the Troustik Union International and another vs. Mrs Jane Mbeyu and another. Nairobi CACA. No. 145 of 1991 to be bad law.  It had been held in Roman Carl Hintz vs. Mwang’ombe Mwakima (1982 -1988) 1 KAR 482 that one need not obtain grant of letters of administration before commencing action, but should have the grant to entitle him to receive the decretal or judgement sum.  The right to sue or respond to a suit derives from the grant of representation and certainly without it a person would have no standing in law to sue or be sued on behalf of the estate. The dissent of Kneller JA in in Roman Carl Hintz vs. Mwang’ombe Mwakima (1982 -1988) 1 KAR 482  reflects the correct legal position, which view was subsequently upheld by the bench of five in the Troustik Union International and another vs. Mrs Jane Mbeyu and another. Nairobi CACA. No. 145 of 1991.   

In The Public Trustee vs. Jotham Kinoti and another Nairobi HCSC No. 3111 of 1985, 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 (Willingstone Muchigi Kimari vs. Rahab Wanjiru Mugo Nairobi CACA No. 168 of 1990 (Gachuhi, Muli and Akiwumi JJA).

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 the Public Trustee’s role as administrator ends when the registrar’s certificate is issued under rule 3 of  the Public Trustee’s Rules. The certificate renders the Public Trustee functus officio and the grant stands revoked.

11.10 Limited Grants

A limited grant is a grant that does not give the personal representative authority (or confirm the authority, in the case of a grant of probate) to act with respect to the whole estate in all respects until the administration is completed (Re Succession – Limited Grant (2000) 2 EA 495 (Ang’awa J)). 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 to special purpose, or property, or time, or it may be one of the various special types. The various classes of limited grants are set out in the 5th 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 5th Schedule. There are several types of grant that are each limited as to purpose in different ways.

(i)     grant ad colligenda bona

It is provided for under section 67 of the Law of Succession Act, and rules 36 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.[cxxii] 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 Muia Kalii (deceased) Mks HCSC No. 81 of 1995.[cxxiii] 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 standi to 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) grant ad litem

It is granted to enable someone represent the estate where the estate has been sued or intends to sue (paragraph 15 of the 5th 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 5th 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.[cxxiv] 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 5th 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 bonis non.[cxxv]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 Elieza Ngware (deceased) and In the Matter of the Estate of Mary Wairimu Ngware (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 bonis non the court should be guided by same rules as applying to original grants.

 (v) cessate grant

This is made under paragraph 21 of the 5th 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 5th 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 5th Schedule and section 49 of the Act.

(i) grant durante aetate minore

This is taken out under paragraph 7 and 8 of the 5th 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 5th 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 5th Schedule, until the original or more authentic copy is found or availed. [cxxvi]

(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 5th 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 5th 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 bona[cxxvii]or 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.[cxxviii]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.[cxxix] 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.[cxxx]

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 and administration 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[cxxxi]’.  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) 1 EA 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[5]. 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.[6]


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.

Under section 11 of the Public Trustee Act where grant of representation has been made to the Public Trustee under the Public Trustee Act the court has jurisdiction, on a petition by the Public Trustee or any person interested in the estate, to determine all disputes, matters, claims and demands and to make such orders as it thinks fit concerning the collection, sale, investment, disposal or administration of the estate. Where, however, the estate is valued at less than Kshs. 8, 000.00 any such disputes, claims, matters and demands should be decided by the Public Trustee. 

(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[cxxxii]. 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)).

Ondeyo J in In the Matter of the Estate of Karanja Gikonyo Mwaniki (deceased) Nakuru HC Misc. 245 of 1998, correctly 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. 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.

The resident magistrate has the same powers as the High Court for the purpose of section 11 of the Public Trustee Act, as defines the court to mean any court having jurisdiction in the matter in question under the Law of Succession Act.

(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[cxxxiii]. 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[cxxxiv] 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[cxxxv], 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[cxxxvi].

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[cxxxvii].

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[cxxxviii].

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 to 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, and the provisions of the Civil Procedure Act cannot be invoked in succession matters, unless there is express provision in the Law of Succession Act for it. Onyancha J held similarly in Shah vs. Shah (No. 2) (2002) 2 KLR 607, with respect to matrimonial proceedings.

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 In the Matter of the Estate of Joseph Mwinga Mwaganu (deceased) Nairobi HCSC 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, under section 49 of the Law of Succession Act, supervisory jurisdiction over the resident magistrate in succession matters. 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.

12.6  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  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. In succession causes, 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. According to Onyancha J in Shah vs. Shah (No. 2) (2002) 2 KLR 607, where any proceedings are governed by special legislation, the provisions of the special legislation must be strictly construed and applied and that the provisions of the Civil Procedure Act and Rules do not apply unless expressly provided by such special legislation, and the position remains the same even if the special legislation is silent about and does not exclude the Civil Procedure Act and 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[cxxxix], 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. These deal with service of summons, interrogatories, discovery, inspection, consolidation of suits, summoning and attendance of witnesses, affidavits, security for costs, review and computation of time.

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 said, in 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 probate proceedings are governed by their own rules of procedure, specifically the Probate and Administration Rules,[cxl]and added that 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 section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules and not section 3A of the Civil Procedure Act.

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 made under Order XLV of the Civil Procedure  Rules for the setting aside of an order 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 of1997. 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 prohibiting the 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’.

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.[cxli]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 a party to sign certain documents within a specified period failing which the documents be signed by the Deputy Registrar of the High Court.

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 similarly 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 Ag. JJA), 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.

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 which include 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), 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. On the other hand, the Court of Appeal has held, in 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),[cxlii] 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.

The Civil Procedure Act and the Civil Procedure Rules are not of application to succession causes, except where allowed by rule 63 of the Probate and Administration Rules. The provisions of the Civil Procedure Rules imported into succession practice by rule 63 apply only in proceedings brought under the provisions of the Law of Succession Act. The Civil Procedure Act and the rules made under it have elaborate provisions which set out the procedures for the bringing of administration proceedings and suits. The relevant provisions are Order XXX and Order XXXVI rules 1 and 5 of the Civil Procedure Rules. 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. Such proceedings are not governed by, and are therefore not subject to, the Law of Succession Act.  The rationale being that probate proceeding are not suits in the ordinary sense of civil actions, and orders and decrees issued by the probate court under the provisions of the Law of Succession Act are, therefore, not capable of execution under the provisions of the Civil Procedure Act and the Civil Procedure Rules.  The Law of Succession Act and the Probate and Administration Rules do not carry provisions for the enforcement of orders and decrees issued under the Law of Succession Act. Therefore, a party wishing to obtain a court order or decree on probate or administration matters capable of enforcement by the court must bring action under the provisions of the Civil Procedure Act and the Civil Procedure Rules.


CHAPTER THIRTEEN

13 NON-CONTENTIOUS PROBATE

13.1 Introduction

Both the High Court and the resident magistrates deal with non-contentious business.[cxliii]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 In the Matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias Mwaura Mbura (deceased) Nairobi HCSC No. 935 of 2003,[cxliv] Kamau Ag. J stated that it is mandatory that all these details be disclosed.

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. 

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[cxlv]. 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  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)[cxlvi].

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)[cxlvii].

(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[cxlviii].

13.5 Renunciation

Both executors and an administrator may renounce their right to apply for a grant[cxlix]. 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).[cl]. 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 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))[cli].

13.7 Making of Grants

(a) Procedure

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.

According to Githinji J in Karanja and another vs. Karanja (2002) 2 KLR 22, the principal duty of a probate court at this stage 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.

(b) Notices

Under rule 26 of the Probate and Administration 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).

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.[clii]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.

(c) Persons entitled to a grant

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.[cliii]The surviving spouse has priority in applying for and being granted grant of letters administration.[cliv]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,[clv]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. 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.

A grant of representation should only be made in respect of one estate. Koome J in In the Matter of the Estate of James Kiarie Muiruri (deceased) Nairobi High Court HCSC No. 2413 of 2003,  revoked a single grant of letters of administration made in respect of two deceased persons.  A grant should also only be made to persons who have applied for the same. 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.

(d) Solvency of the proposed administrator

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.

(e) Limited grants

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.  

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 5th 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 Bank 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[clvi].  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

(a) Procedure

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.[clvii]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.

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.  According to the court in In the Estate of Njoroge and another (2003) KLR 73 (Etyang J) and In the Matter of the Estate of Kihagi Wamai (deceased) Nyeri HCSC No. 266 of 1995 (Okwengu J), confirmation should only be applied for by and be made to the holders of the grant.

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.[clviii]

(b) Effect of a confirmation of grant

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 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.


 (c) Identity and shares of all persons beneficially entitled

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.[clix]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).[clx]

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).[clxi]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.

(d) Adjudication of competing proposals

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.[clxii]

(e) Effect of pendency of application under section 26 of the Law of Succession Act
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 appropriate remedy. The appropriate remedy ought to be an application for the revocation of the grant.[clxiii]  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.

13.11 Other Non-Contentious Proceedings

(a) Applications under Section 61(1) or Section 75 of the Law of Succession Act

Where a codicil is discovered after the grant of probate or of letters of administration with will annexed or after the confirmation of such grant, and the codicil does not repeal the appointment of the executors made by the will or appoint different executors, a separate probate may be granted to the executor or the codicil may be added to the grant in the case of grant of letters. The application for the separate probate or for the addition of the codicil to the grant of letters is made under rule 47 of the Probate and Administration Rules by way of summons, supported by an affidavit, in the cause in which the will was proved and in the registry that granted the original grant.

(b) Applications under Section 61(2) of the Law of Succession Act

Where the codicil discovered after the making of the grant appoints different executors, the probate of the will should be revoked and a new probate granted of the will and codicil together. The application for the revocation of the grant and the making of a fresh one under section 61(2) is by summons brought under rule 48 of the Probate and Administration Rules, supported by an affidavit.

(c) Applications not otherwise Provided for

Rule 49 of the Probate and Administration Rules allows a person desirous of making an application to the court relating to the estate of a deceased person where no provision is made under the Probate and Administration Rules. It takes the form of a summons supported if necessary by affidavit. An example of a non-contentious application that may be made under this rule is under section 37 by a surviving spouse during life interest for the consent of the court to sell any of the property subject to life interest for their own maintenance.

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.

14.2  Objections to the making of  grants

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).

(a) Procedure

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.

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. Objection proceedings and revocation proceedings are distinct and separate procedures, and one should not be mistaken for the other.

(b) Grounds upon which objections may be  premised

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.

(i) validity of a will

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) Nairobi 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.

(ii) right to administration or entitlement to a grant

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[clxiv]. 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[clxv]. 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 (Madan, Kneller and Nyarangi JJA), both of which were succession disputes where the issue of presumption of marriage fell to be decided[clxvi]. 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[7]. 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[clxvii]. 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.

(iii) deceased died testate

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.

(iv) suitability or competence of the proposed administrator

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), when 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 Swaboa Nassor Salim Hadi vs. Swaleh Salim Hadi HCP&A No. 52 of 1990 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.

14.3 Protests at 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 and 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 protestor 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 th deceased in keeping with section 38 of the Law of Succession Act.[clxviii]

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.[clxix]

(a) 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)).

(i) defective proceedings

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.[clxx]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.[clxxi]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.

(ii) false statements or concealment of material information

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[clxxii] 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.[clxxiii] 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[clxxiv]. 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.  

(iii)  grant has become inoperative or useless  

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.

(iv) lack of diligence in administration

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)).

(b) Procedure for revocation of grant

(i) the procedure

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).[clxxv]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.

Ang’awa J in In the Matter of the Estate of Ruth Wamucii (deceased) Nairobi HCP&A 1012 of 1992, sets out in detail the various stages of and steps that should be taken between the filing of an application for revocation and its hearing. Upon the filing of the application, the probate registry sends out a notice to the applicant to appear before the judge for directions. The directions are given ex-parte, mainly on who should be served with the summons and the supporting affidavit and the manner of effecting service. Thereafter a notice issues for service upon all the persons who ought to be served as directed by the judge. The persons served are required to file an affidavit indicating whether they support or oppose the application and on what grounds. The matter is then listed for hearing after notifying all the parties concerned. No party should file any before being served with the requisite notices under the Probate and Administration Rules. The Court of Appeal in Florence Okutu Nandwa and another vs. John Atemba Kojwa Kisumu CACA No. 306 of 1998 (Kwach, Shah and O’Kubasu JJA) emphasised the importance of all interested parties during the revocation proceedings being notified of the proceedings.

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  Matheka and another vs. Matheka Nairobi (2005) 1 EA 251 (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 on its own motion 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, as Rimita J did in In the Matter of the Estate of Amos Kimondo Ngotho (deceased) Nakuru HCSC No. 287 of 1998.

(ii) who may apply for revocation

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 those set out in section 66 of the Law of Succession Act and the order of preference is as set out in the provision[clxxvi]. 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 Ag. 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))[clxxvii]. To Kamau J such an applicant would have the requisite locus standi.

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[clxxviii].  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.

(iii) revocation or annulment?

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.[clxxix] 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.

(iv) the court’s discretionary power

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.[clxxx]

(v) time limit for the application

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.

 (c) 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 as was the case in In the Matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias Mwaura Mbura (deceased) Nairobi HCSC No. 935 of 2003 (Kamau Ag. J)[clxxxi] 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 as was ordered in 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). In In the Matter of the Estate of Eunice Wanjeri Kibia (deceased) Nairobi HCSC No. 926 of 1997 (Osiemo J), after the revocation of the grant the applicant sought to have the deceased’s property, which had been sold under the revoked grant, revert to her name. It was held that section 93 protects the interest of a purchaser of immovable property in the event the grant is revoked. In the circumstances the property which had been sold and transferred to lawful purchasers could not revert back to the estate of the deceased.

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 Review

For applications brought under order XLIV of the Civil Procedure Rules, it was held by Koome J in In the Matter of the Estate of Waruru Kairu Nairobi HCSC No. 2525 of 1997 that the party applying for review of a decree or order issued by the probate court has to draw up the decree or order that is sought to be reviewed and attach it to the application.[clxxxii]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.[clxxxiii]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. 

14.6 Applications under section 35(3) of the Law of Succession Act for Appointment

A child who is aggrieved by the exercise of the power of appointment by a surviving spouse is allowed by section 35(3) of the Law of Succession Act to move the court for the appointment of his share. Under rule 46 of the Probate and Administration Rules, the application takes the form of a summons supported by an affidavit setting out the facts and the particulars required in section 35(4) of the Law of Succession Act. In deciding whether to make the appointment, the court should have regard to the matters set out in section 35(4). Section 35(4) is on all fours with section 28 of the Law of Succession Act which sets out the guidelines to be followed by the court in deciding whether to make reasonable provision or not. The principles that the courts have developed for the purpose of section 28 should more or less be of equal application for the purpose of section 35(3)(4) of the Law of Succession Act.[clxxxiv]

14.7 Applications under Section 61 or Section 75 of the Law of Succession Act       

The applications brought pursuant to sections 61 and 75 of the Law of Succession Act, under rules 47 and 48 of the Probate and Administration Rules, following the discovery of a codicil and seeking the incorporation of the same in the grant already issued or confirmed by the court are often contentious. Particularly, where any of the persons beneficially interested in the estate challenges the validity of the codicil.

14.8  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 elsewhere.[clxxxv]

14.9 Applications not Otherwise Provided for

Rule 49 of the Probate and Administration Rules allows the filing of applications relating to the estate of a deceased person for which no provision is made under the Probate and Administration Rules. Such applications take the form of a summons supported by an affidavit. Applications brought under this rule would, in most cases, be premised on section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules, which save the court’s general and inherent power.

14.10  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)).

14.11 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[clxxxvi]. 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.

14.12  Costs

As a rule, the costs of the action follow the event, that is they are to be borne by the losing party. It was stated by the Court of Appeal in Abdulla Rehemtulla Waljee vs. Alibhai Hajj and another (1943) 10 EACA 6 (Sir Norman Whitley CJ, Wilson Ag CJ and Hayden J) that 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.[clxxxvii] 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.[clxxxviii]  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.[clxxxix]

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.[cxc] 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) Naitobi HCP&A No. 320 of 1991 sosts 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, which sparked off the appeal, 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.

14.13 Enforcement of Orders and Decrees issued by the Probate Court

The Law of Succession Act, and the rules made under it, does not have provisions for the enforcement of orders and decrees issued by the probate court in exercise of its jurisdiction under the Act.[cxci] Contempt of court is the only plausible mode of enforcing the orders and decrees issued by the probate court under the Law of Succession Act. A personal representative, and any other party to the proceedings is liable for contempt of court for disobeying an order made by a probate court. The contempt proceedings can be commenced by a beneficiary or any other person beneficially interested in the estate and the same have to comply with the general law of contempt of court.[cxcii] 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.[cxciii]

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PART  EIGHT: ADMINISTRATION OF ESTATES

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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 are in Part VIII of the Law of Succession Act, that is sections 44 to 95. These provisions are, however, not exhaustive. Administration of estates is also dependent on the Trustee Act, the Public Trustee Act, the Trusts for Land Act and the Civil Procedure Act and Rules.

15.2 Powers and Duties of Personal Representatives

Under section 79 of the Law of Succession Act, the executor or administrator who has received a  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.[cxciv] 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. These include the power to enforce all causes of action that survive the deceased or arise out of his death for his estate, to sell all or any part of the assets vested in them, 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.
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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.[cxcv] 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. Waki J made similar remarks in In the Matter of the Estate of Huseinbhai Karimbhai Anjarwalla (Mombasa HCP&A No. 118 of 1989), where it was emphasised that it is an offence under section 95 of the Law of Succession Act to wilfully or recklessly neglect to get in any asset forming part of the estate. 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[cxcvi].

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[cxcvii]. 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[cxcviii]. 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[cxcix]. 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.

Section 15 of the Public Trustee Act

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  according to 79 of the Law of Succession Act[cc]. 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. Under section 39(1)(a) of the Cooperative Societies Act, 2001, for example, upon the death of a member, the cooperative society should transfer the share or interest of the deceased member to the person nominated by the deceased in accordance with the Act. The share or interest of the deceased member should only be paid to the personal representative of the deceased member where no nomination has been made under the Act.

(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, 1882

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.

15.5 Power to Enforce Causes of Action

There is the power, under section 82(a) of the Law of Succession Act, to enforce all causes of action that survive the deceased or arise out of his death for his estate. The Court of Appeal, in Wambugi w/o Gatimu vs. Stephen Nyaga Kimani (1992)2 KAR 292 (Hancox CJ, Masime and Kwach JJA), pointed out that such power is by virtue of section 80 subject to any limitation in the grant of letters of administration which becomes effective only after the date it is issued. Case law shows that no person has a right to enforce any cause of action, or defend any suit, which survives the deceased or arises out of his death, without a grant of letters of administration.[cci] 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 so 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 of letters to administer the estate of the deceased before suing for trespass. 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.

Suits to recover from third parties property belonging to the estate are brought under the provisions of the Civil Procedure Act and the Rules, which deal with civil suits generally, as such claims are really civil actions against the debtors of the deceased. Such suits are, however, subject to the general limitation law set out in the Limitation of Actions Act.[ccii] Such property is not recoverable under the provisions of the Law of Succession Act, as the said law does not have provisions governing recovery of the estate’s property from third parties. It was, in the circumstances, wrongful for the court in In the Matter of the Estate of Sammy Gidraf Mugo (deceased) Nairobi HCSC No. 3152 of 2003 (Rawal J)  to have made orders in succession proceedings directed at a third party. In the matter an administrator of the estate of a deceased person asked the probate court to compel the former employer of the deceased to release to the administrator all the benefits due to the deceased and all the proceeds on insurance policies that the deceased had taken out. The proper course of action should have been the filing of an ordinary suit by the administrator against the former employer of the deceased. Furthermore, orders made in proceedings brought  under the Law of Succession Act against third parties cannot be enforced since the Act lacks enforcement provisions.[cciii]

Under Order XXIII rule 3(1) of the Civil Procedure Rules where a plaintiff dies and the cause of action survives or continues, the court, on the application made in that behalf, should cause the legal representative of the deceased plaintiff to be made a party and should proceed with the suit. A similar provision on the death of a defendant is made in Order XXIII rule 4. Where no application is made in that behalf within one year the suit abates. 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.[cciv]Legal representative is defined in section 2 of the Civil Procedure Act to mean the personal representative of a deceased person.

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 made to more than one personal representative.

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.

In The Public Trustee and another vs. Kamau Wanduru (1982-1988) 1 KAR 498 (Madan, Kneller JJA and Chesoni Ag. JA), the Public Trustee, as administrator of the deceased’s estate, applied to the High Court for a declaration that one of the heirs in intestacy had become entitled by adverse possession for twelve years to be registered as the sole proprietor of a piece in place of the defendant in the matter.

Enforceable causes of action include claims arising from the death of the deceased. It could  claims under the Workmen’s Compensation Act.[ccv]Section 5(1) of the Act makes employers liable to pay compensation for the death of their employees resulting from an accident arising out of or in the course of their employment. Such compensation may be  paid, by virtue of section 2(3) of the Act, to the legal personal representative of the deceased workman, among others. Similar claims can be brought under the Fatal Accidents Act[ccvi]against the person causing the death of the deceased through a wrongful act. Under section 4(1) of the Act action may be brought on behalf of the family of the deceased by the executor or administrator of the deceased person. The court may, in addition to assessing compensation for the death and loss of dependency, award damages in respect of the funeral expenses of the deceased person. In the event of death of the person against whom an action would be maintainable under the Fatal Accidents Act the action is maintainable against his estate.[ccvii] The Law Reform Act[ccviii]provides for the survival of certain causes of action, which subsist against or for the benefit of the estate of a deceased person. Both the Fatal Accidents Act[ccix] and the Law Reform Act[ccx] provide that in the event of the insolvency of an estate against which proceedings are maintainable any judgment obtained against the estate is a debt provable in the administration of the said estate. Under sections 18 and 19 of the Pensions Act[ccxi]gratuity for public officers who die in service and pensions for officers killed in service are payable to the personal representative.

Under Order VII rule 4(1) of the Civil Procedure Rules where a suit is commenced by a personal representative in his representative capacity the plaint should state the capacity in which he sues and where the defendant is a personal representative the plaint should state the capacity in which he is sued, and in both cases it should be stated how that capacity arises. According to Order VIII rule 4 if any party to a suit wishes to deny the right of  any other party to claim as executor or personal representative, he should deny the same specifically. Under Order II rule 4 a claim by or against an executor or administrator, as such, should not be joined with claims by or against him personally, unless the last-mentioned claims are alleged to arise with reference to the estate in respect of which the party sues or is sued as executor or administrator, or are such as he was entitled to, or liable for, jointly with the deceased person whom the represents.

According to the former Court of Appeal for East Africa in Sargent vs. Gautama (1968) EA 338 (Sir Clement de Lestang VP, Duffus and Spry JJA), any suit filed by or against personal representatives must name all the personal representatives as parties, in keeping with Order XXX rule 2 of the Civil Procedure Rules.

Under Order XXI rule 18(b) of the Civil Procedure Rules where a decree is obtained against a personal representative of a party to the proceedings the court should issue a notice to the person against whom the execution is applied for requiring him to show cause why the decree should not be executed against him. Section 37(1) of the Civil Procedure Act states that where a judgement debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the personal representative of the deceased or against any person who has intermeddled with the estate of the deceased. Such a personal representative is liable only to the extent of the deceased which has come into hands and has not been duly disposed of.  For the purpose of ascertaining the liability of such personal representative the court may compel the personal representative to produce such accounts as it thinks fit. Under section 39 of the Civil Procedure Act, where a  money decree is passed against a party as the personal representative of a deceased person to be paid out of the property of the deceased, it may be executed by the attachment and sale of any such property. Where no property of the deceased remains in the possession of the personal representative, and he fails to satisfy the court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the property of the personal representative to the extent of the property in respect of which he has failed to satisfy the court in the same manner as if the decree had been against him personally.

15.6 Powers of Sale

Section 82(d) of the Law of Succession Act, one of the main functions of personal representatives is to pay debts and liabilities. 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)). According to Khamoni J in In the Matter of the Estate of Erastus Njoroge Gitau (deceased) Nairobi HCSC No. 1930 of 1997 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 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. 

Section 13 of the Trustee Act empowers personal representatives vested with trust for sale or a power of sale to sell or concur with any other person in the selling of any property by public auction private treaty. There is also the power to vary any contract of sale, buy in at any auction and rescind any contract for sale and to re-sell. The issuance of a receipt by personal representatives for any money, securities or property transferable to him under any trust or power is sufficient discharge to the person paying or transferring or delivering . The method of sale must be one which is to the best advantage of the estate. There power under section 17 to raise money required for any purpose by sale, conversion or mortgage. Where there is doubt as to whether there is authority under the will to sell, the personal representative would exercise statutory authority or in the alternative apply to court for an order approving the sale.

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.

Section 12(1) of the Public Trustee Act empowers the Public Trustee to convert into money movable property of an estate which he administers under the Public Trustee Act, and may, with the consent of the court, convert into money all or any part of immovable property of the estate. The consent of the court will not be necessary where all the parties consent in writing to the conversion or the value of the property does not exceed Kshs. 20,000.00.

15.7 Power of Appropriation

Under section 82(d) of the Law of Succession Act 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.

15.8 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.

15.9 Powers to Insure Assets

The Trustee Act, at section 20, 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.    

15.10 Power of Delegation

Generally, the office of personal representative is one of trust and the powers exercised by the personal 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 section 24 of the Trustee 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 24, but will not be liable where the agents are appointed in good faith by virtue of section 31of the  Trustee Act.

15.11 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.

The Trustee Act, however, gives personal representatives extensive powers of investment. Under section 4 personal representatives are authorised to invest the estate’s funds in their hands in securities, unit trusts, shares of a building society and immovable property. Section 7 allows investment on mortgage of leasehold property, acceptance of legal charges under the Registration of Titles Act[ccxii]and debenture stock. The personal representative may, under section 11,  lend money on the security of any property on which he can lawfully lend. Under section 12 there is power, pending the negotiation and preparation of any mortgage or charge or during any other time when investment is being sought, to deposit money at a bank, where any interest earned should be applied as income.

The courts, however, can also direct that funds be invested particularly in favour of a minor. In In the Matter of the Estate of Clement Albert Etyang (deceased) Nairobi HCSC No. 1099 of 2002, Koome J directed that funds awarded to a minor as reasonable provision be invested in a trust account to be used only for the welfare of the minor.

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

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

15.12 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, as was stated in Marshall vs. Broadhurst (1831) 1Cr&J 403, carry out the deceased’s obligations under a contract made before his or her death  or carry on the business so as to enable it be sold as a going concern,  as was stated in Dowse vs. Gorton (1891) AC 190 so long as this is a proper method of realisation. It was said in Re Crowther (1895) 1Ch 56, that  testator may give the executors of the will either express or implied authority to carry on the business.

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). Under section 38 of the Cooperative Societies Act, 1997 the estate of a deceased member is liable for the debts of the cooperative society as they existed at the time of his death, and proceedings in respect of such debt should be commenced within one year of the death. The personal representative, however, is not liable except in respect of assets in his possession or under his control.

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. Under section 12(2) of the Public Trustee Act, the Public Trustee should cause advertisements to be published in the official gazette and in any other manner he considers expedient inviting creditors of the person whose estate he is administering to come in and prove their debts before him within a specified period of time.  Upon the expiration of the notice the Public Trustee should pay the debts proved or a party of it if it cannot be paid in full.

16.3 Personal Representatives’ Powers in Respect of Debts

Section 16 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). This position stated by section 83(a) is reflection of the English Law on the role of personal representatives in the disposal of the remains of the deceased. 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 Kenyan position on the matter is a little unclear. The Court of Appeal  in Pauline Ndete Kinyota Maingi vs. Rael Kinyota Maingi Nairobi CACA No. 66 of 1984 (Nyarangi, Platt and Kwach JJA)) appeared to hold the position that on matters of burials the personal law of the deceased should be the key determinant, that is to say the customary law and practices of the deceased’s tribal community According to Nyarangi JA, Kenyan Africans like to have real connection with the burial of a deceased person, more especially a family member. There are individual, family and clan interests in the burial of a Kenyan African. Departure from this is unacceptable. Under these circumstances before the wishes of an African in Kenya, regarding the disposal of his body, can be given effect, the executor of his will would be obliged to prove that the African customary law providing that the burial ceremony and the burial place are the sole responsibility of his living family is impracticable, inapplicable, inconsistent with the written law or repugnant to justice and morality.  In James Apeli and another vs. Prisca Buluku (Mrs.) Kisumu CACA No. 12 of 1979 Law JA  took the view that whether looked at from a customary law point of view or the general law of Kenya, the wishes of the deceased, though not binding, must, so far as possible be given effect to. Where those wishes are not contrary to custom nor contrary to the general law or public policy or safety, the High Court has a general discretion to make orders on the removal of the body from one place to another.

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.

16.9 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. In Re Taylor’s Estate (1969) 2 Ch 1245 it was suggested that there is no real difference between testamentary and administration expenses. They come after funeral expenses, but in priority over debts and other liabilities of the estate. These include expenses incurred by the administrator in the usual course of administration. These expenses generally relate to costs of obtaining a grant to administer and relating to administration generally.

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 sell 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.

Under section 13 of the Public Trustee Act the fees payable to the Public Trustee under the Public Trustee Act and any court fees and realisation expenses and other charges incurred by the Public Trustee in collecting and realising the estate of the deceased rank for payment after any funeral expenses and death-bed charges of the deceased, but take priority over all other expenses and debts for which the deceased was liable.





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 as stated by the Court of Appeal in  Okoyana vs. Musi and another (1987) KLR 103 (Platt, Gachuhi JJA and Masime J). Emukule J in Shital Bimal Shah and others vs. Akiba Bank Limited and four others (2005) eKLR stated that, by virtue of section 55 of the Law of Succession Act, capital assets constituting the nett estate cannot be distributed or any property converted unless and until a grant has been confirmed as provided by section 71 of the Act.  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.

Section 12(4) of the Public Trustee Act requires that after payment of all debts, fees and expenses incident to the collection, management and administration of the estate, the Public Trustee should pay over the residue to the persons beneficially entitled to it. Where the persons entitled are outside Kenya payment may be made to their agents or representatives in Kenya.

Under section 12(5) of the Public Trustee Act the estate under the charge of the Public Trustee should be distributed according to the ordinary rules of law within a period not exceeding twelve years from the date of the final completion of the account, and on expiry of that period the estate or part of it in respect of which no claims have been lodged with the Public Trustee lapses and escheats to the state. However, the minister has power to distribute the estate or any part of it among any relatives of the deceased or any other person who, although not having legal claim to the estate, can show a reasonable claim to it in equity.

Section 14 of the Public Trustee Act enables any person beneficially interested in any immovable property vested in the Public Trustee to apply by petition to the court for the partitioning of such property.

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…”

It was held that the executor takes both legal and equitable title subject to the fiduciary duties to the beneficiaries and creditors of the testator for whose benefit he is to administer the estate. In Re Leigh’s Wills Trust (1970) Ch 227 it was held that the nature of the interest of the beneficiary under a will is a right to require the estate to be duly administered.

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.[ccxiii] 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[ccxiv]

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 and section 12(2) of the Public Trustee Act. Under section 12(4)(i) of the Public Trustee Act in the event of the Public Trustee being unable to trace the persons beneficially entitled to the residue of the estate he should transfer the residue or a proportionate part of it to an unclaimed property account.

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. Under section 85(1) the assent of the executor is a mandatory requirement for the completion of the beneficiary’s title. By virtue of section 85(2) the assent may be made orally or it may be inferred from the conduct of the executor, and it is, under section 85(4), effective from the date of the testator’s death.

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 dies 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. The personal representatives hold the real and personal property for the benefit of of the beneficiaries and creditors, and not their own, and they are therefore trustees for the beneficiaries and creditors. The Trustee Act defines a trustee to include a personal representative.

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.

According to Emukule J in Shital Bimal Shah and others vs. Akiba Bank Limited and four others (2005) eKLR where upon the confirmation of grant, the personal representatives have not paid out the specific legacies they constitute themselves into trustees for those legacies. Apart from the specific legacies, the personal representatives upon confirmation become trustees of the residuary estate. Where the estate in question is realty, in addition to the powers and duties under sections 82 and 83 of the Law of Succession Act, the personal representatives are bound by the powers and duties that devolve upon trustees of trusts of land under the Trusts of Land Act.

The 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, basically to wind up the estate. 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. 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 Stephens and six others vs. Stephens and another (1987) KLR 125, Masime JA stated that in intestacy where there is no express trust, a statutory trust arises. 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.[ccxv] 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 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) Nairobi HCP&A No. 920 of 1986).

18.2 Offences by Personal Representatives

These are set out in section 95 of the Law of Succession Act. They include wilful or reckless neglect to get in any asset forming part of the estate, misapplying any such asset or subjecting any such asset to loss or damage. It is also an offence to wilfully fail to produce to the court any inventory or account as is required by the section 83 of the Act, or to wilfully or recklessly produce an inventory or account which is false in any material particular. Waki J in In the Matter of the Estate of Huseinbhai Karimbhai Anjarwalla Mombasa HCP&A No. 118 of 1989 pointed out that this offence can only be committed where accounts or an inventory have been called for by the court under section 83. It is also an offence to continue to administer an estate, knowing or having reason to believe that the same is insolvent, without petitioning for its administration in bankruptcy.

18.3 Remedies through Administration Proceedings

These are brought under Order XXXVI rules 1, 2 and 5 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.

(a) Action for specific relief

The issues for determination under Order XXXVI rule 1 are questions affecting the rights or interests of any person claiming to be a creditor or beneficiary, ascertainment of any class of creditors or beneficiaries, furnishing of any particular accounts personal representatives and the vouching of such accounts, the payment into court of any money in the hands of personal representatives, directions to the personal representatives to do or abstain from doing any particular act in their character as personal representatives, the approval of sale purchase compromise or any other transaction, and the determination of any question arising directly out of the administration of an estate. Under Order XXXVI rule 5 any person interested under a will may take out an originating summons for the determination of any question of construction arising under the will, and for a declaration of the rights of the person interested.

Any person interested in the estate of the deceased may commence administration proceedings. The action is initiated by way of originating summons.[ccxvi] Where the action is brought by creditors or beneficiaries against the personal representatives on grounds of wrongdoing by the latter, the court will normally, under Order XX rule 13(1) of the Civil Procedure Rules, 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 reliefs 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 Nairobi 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)). 

Under rule 41(3) of the Probate and Administration Rules, 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. In Charles Murithi Kungu vs. Anne Njoki Njenga Nairobi HCCC No. 19 of 2004 (OS) Koome J ordered, under rule 43(3), that a dispute as to whether a particular asset formed part of the estate of the deceased or belonged to the applicant be dealt with through an originating summons brought under Order XXXVI rule 1. 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.

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.

In Official Receiver vs. Sukhdev (1970) EA 243 (Madan J), the Official Receiver sought orders against the executor of a will that he transfer land to a beneficiary (who was a bankrupt), that he administer the estate and that he render accounts to the court. In Anarali Museraza (a minor suing by his next friend) Mohamedtaki A. P. Champsi vs. Mohamedali Nazerali Jiwa and others (1966) EA 117 (Wicks J), the beneficiary of a bequest, in a codicil, for his maintenance and education brought an action against the executors after the later refused to pay the bequest to him. In Gurdial Singh Dhillon vs. Sham Kaur and others (1960) EA 795 (Sir Kenneth O’Connor P, Sir Alastair Forbes VP and Crawshaw JA) the eldest son of the deceased by his first marriage brought the action against his step-mother, the administrix of the deceased, and his step-brothers, seeking the determination of the rights and interests of the parties to the estate of the deceased, and that the administrix furnish accounts of the estate and that the respondents make retribution to the estate in respect of funds or other benefits received by them from the estate. In In the Matter of the Estate of Clement Albert Etyang (deceased) Nairobi HCSC No. 1099 of 2002 (Koome J) the proceedings were brought by the administrators for the determination of the apportionment of the estate of the deceased with reference to the share due to a minor grandchild who was wholly dependent on the deceased. The administrators could not agree on the percentage of the share to be apportioned to the minor.

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 by 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.[ccxvii]

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 and  Njoki vs. Mutheru (1985) KLR 871 (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[ccxviii].   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 Re Rufus Ngethe Munyua (deceased) Public Trustee vs. Wambui (1977) KLR 137 (Harris J) the Public Trustee sought an order that an instrument written in Kikuyu language with an English translation annexed should be treated as the last will and testament of the deceased.

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 that involve a serious question[ccxix].

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)).

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.

(b)  Order for administration by the court

Under Order XXXVI rule 2 of the Civil Procedure Rules, any person interested in the estate of the deceased may seek orders for the administration of the estate of the deceased by the court. Order XXXVI rule 2 envisages the taking out of an originating summons for the administration of either the personal estate or real estate of the deceased by the court. The action can also be by plaint if there is a dispute of fact, allegation of fraud or a claim for damages for breach of duty- such as where the personal representatives are guilty of breach of trust or a devastavit. The originating summons is used where the issue leading to the application arises out of a matter of law.

Where the action for the administration of the estate by the court is brought by the creditors or beneficiaries against the personal representatives on the grounds of wrongdoing by the personal representatives, under Order XX rule 13(1) of the Civil Procedure Rules the court makes an order directing that certain accounts be drawn up and certain inquiries made. The accounts may cover property which forms part of the residue of the estate and which has come into the hands of the personal representatives, the deceased’s debts funeral and testamentary expenses and any legacies or annuities. The inquiry would be as to what part of the deceased’s property has not been collected or disposed of, and whether such property is subject to any encumbrances. Once the accounts and inquiry have been completed, the court gives the necessary directions, which include payment of debts and the distribution of the estate to the beneficiaries.

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. Under section 94 when a personal representative neglects to get in any assets forming an estate in respect of which representation has been granted to him, or he misapplies any such assets or subjects it to loss or damage he shall be liable to make good any loss or damage arising from such neglect or misapplication

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.  Where there are no such court orders the party interested or affected may bring administration  suits and proceedings under the Civil Procedure Rules. 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 an executor 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[ccxx].

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.[ccxxi] The correct procedure is by an action to which the parties prejudiced by the will have been made parties. 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.[ccxxii]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.

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[ccxxiii].

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 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 personal representatives 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 representative, 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).[ccxxiv]  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.[ccxxv] 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.

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.

Under Order XXX rule 1 of the Civil Procedure Rules, in all suits concerning assets vested in personal representatives, where the dispute is between beneficiaries and a third person, the personal representative should represent the beneficiaries, and it is not necessary to make them parties to the suit although they may be made parties to the suit by the court. Under Order XXX rule 2, where there are several personal representatives they should all be made parties to a suit against one or more of them. The former Court of Appeal for East Africa in Sargent vs. Gautama (1968) EA 338 (Sir Clement de Lestang VP, Duffus and Spry JJA), stated that any suit filed by or against personal representatives must name all the personal representatives as parties.  Executors who have not proved their testator’s will need not be made parties.

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PART NINE: POST-MORTEM ALTERATIONS

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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.[8] This is called freedom of testation or testamentary freedom. The argument in favour of testamentary freedom is that the testator should be capable of doing what he likes with his property by will, just as he could have during lifetime. 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.[9]The argument against absolute freedom is to guard against the making of irresponsible wills by which members of the testator’s family are deprived completely and the estate is given away to outsiders.

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 provisions are designed to provide a measure of protection to a person’s dependants. According to the Commission on the Law of Succession, the parallel with complete freedom to alienate inter vivos is not identical, since if a person were alive, their dependants could always seek the assistance of the courts in securing their rights to maintenance, and any irresponsible alienation of property during lifetime is always subject to family pressures which are non-existent after a person’s death.[ccxxvi]

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.[ccxxvii].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 let 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: 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 (Sachdeva J) and Re Ogola’s Estate (1978) KLR 18 (Simpson J). 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 Estate1977) KLR 21 (Sachdeva J) and Re Ogola’s Estate (1978) KLR 18 (Simpson J). 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 the Statute Law (Repeals and Miscellaneous Amendments) Act, 1981[ccxxviii], 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 as held in 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 (1977) KLR 21 (Sachdeva J) and Re Ogola’s Estate (1978) KLR 18 (Simpson J), 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.[ccxxix]

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).[ccxxx]

(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 (Koome J)). 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[ccxxxi]and an adopted child.[ccxxxii]According to section 3(2) of the Law of Succession Act it also includes a child whom the deceased has expressly recognised or accepted as his or for whom he has voluntarily assumed permanent responsibility. In the Matter of the Estate of James Ngengi Muigai HCSC No. 523 of 1996 (Koome J) it was held that the children, whose paternity was contested, were children of the deceased since  they had used his name during his lifetime and ‘passed out’ as his children. 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).

Under section 171(1) of the Children Act upon an adoption order being made all the rights, duties, obligations and liabilities of the parents or guardians of the child in relation to the future custody, maintenance and education of the child are extinguished and all such rights, duties, obligations and liabilities vest in and are exercisable by and enforceable against the adopter inside marriage and the child stands to the adopter as a child inside marriage. Under sections 172, 174, 175 and 176 of the Act the child is entitled to a share from the estate of the adopter as if he were the natural or biological child of the deceased adopter. 

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[ccxxxiii]. 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. Children whose mother does not fall under section 35(5), 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. It is considered that other persons may have maintenance obligations for such relatives.

The provision embraces the traditional African practice under which a person is under an obligation to provide not only for members of his immediate family, but also for the extended family. There is an obligation, whether moral or legal, under customary law to maintain a very wide circle of relatives. This tradition is slowly dying out and the obligation to maintain a large body of relatives dies with the deceased. The only rider in the family provisions is 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) NBI 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[ccxxxiv]. 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[ccxxxv].  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 it 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.

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[ccxxxvi]. 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[ccxxxvii], 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[ccxxxviii].  

(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.

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.[ccxxxix] 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[ccxl]. 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.[ccxli]

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) Nairobi 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.

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PART FOUR: THE GENERAL PRINCIPLES OF AFRICAN CUSTOMARY LAW AND
                        ISLAMIC LAW ON SUCCESSION

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CHAPTER TWENTY ONE

21. AFRICAN CUSTOMARY LAW OF SUCCESSION

21.1 Introduction

The Law of Succession Act was meant to codify and consolidate the then existing laws, including African customary law, into one comprehensive statute. The Act has replaced African customary law to some extent and to another embodied some of its principles.

African customary law is the general law that applied to Africans in Kenya in the advent of colonialism. The applicable law was not a uniform body of law, different rules applied to the different tribal groups in Kenya. The general principles were, however, common among all the communities. This body of law continues to apply to indigenous Kenyans, under various circumstances, to this day.

21.2 General Principles of the African Customary Law of Succession

Most traditional African societies in Kenya were patrilineal[ccxlii], except for the Digo and the Duruma who were matrilineal. In most African communities, the heirs are the deceased’s family members.[ccxliii]In patrilineal communities, the term family refers to the surviving spouse, children, the siblings and the parents. Where the deceased is a woman, the heirs include her co-wives and stepchildren. Dependants include the extended family and members of the clan who are to be traced to the same ancestor. In Wambugi w/o Gatimu vs. Stephen Nyaga Kimani (1992) 2 KAR 292 (Hancox CJ, Masime and Kwach JJA) it was emphasised that the term ‘patrilineal’ should be confined to the natural issue of the deceased. In matrilineal communities, reference to family means members of the woman’s family her brothers, their children, her mother, her uncles and aunts and their children.

The rules of distribution among the patrilineal tribes differ, and three general patterns are discernible. One, in some communities there 'is equal distribution among the sons or among the ‘houses’ in a polygamous household. Two, other communities allow equal distribution among the younger sons or junior ‘houses’ with a slightly larger share to the eldest son or the senior ‘house’. Three, unequal distribution among the scions or ‘houses’ on a descending scale, each senior ‘house’ getting a slightly more than its next junior.  The general pattern of inheritance in most African societies appears to be based on the equal distribution of the deceased’s property among his sons. This was the case regardless of whether the deceased was a monogamist or a polygamist. In some cases the eldest or youngest son is entitled to receive a larger share. The widows have a right during their lifetime to use the property of the deceased given to them by the deceased during his lifetime. Daughters usually have not right of inheritance, although in some communities they were entitled to a small share. Among the Pokot, for example, the daughters would be entitled to one cow upon their marriage[ccxliv]. Where the deceased does not have sons, the estate devolves upon the nearest patrilineal relatives: the father, brothers of full blood, brothers of half blood, and paternal uncles.

One major feature of all customary laws is that the rules relating to distribution are not rigid, as is characteristic of African customary law in general. The administrator in customary law has a very wide discretion to vary the rules. In distributing the estate he takes into account:  the means and needs of the beneficiaries; the maintenance of the widows and unmarried daughters; and the fact that certain sons may yet be unmarried and require cattle or other property to pay dowry. The other factor common in all customary laws, is that any distribution to sons during the father’s lifetime is taken into consideration.

In most African communities, property passes according to the rules of intestacy, although the practice of making wills is also recognised. Where a will is made, the same must not depart from the general pattern of inheritance. The property may also be distributed during the deceased’s lifetime to the heirs as they get married.

The distributable estate of the deceased comprises of the following property: land, livestock, traditional movable property and modern property. Traditional movable property includes crops, furniture, spears, shields, ornaments, walking sticks, among others. The modern property would include modern furniture, radios, television sets, motor vehicles, money, bank accounts, company shares, shops, houses, and so on. Apart from property, the deceased’s duties or obligations over various persons, such as widows, minors and other dependants, are also distributed. Obligations over claims by and rights over debts against third parties are also distributed.

21.3 Distribution during lifetime

The deceased has power under customary law to distribute his property during his lifetime. This is usually what happens, particularly where the deceased is an elderly person. In Karanja Kariuki vs. Kariuki (1983) KLR 209 (Madan, Potter and Kneller JJA), it was stated that normally the deceased would allocate to each son upon getting married his share of both land and livestock  Whether the land given inter vivos is taken into account as part of the son’s share of inheritance after the deceased’s death varies from community to community. In some communities, such property is considered, while in others it is not.

Distribution during lifetime enables the person to depart from the general pattern of inheritance upon intestacy, that he may alter the shares to which each heir is entitled to under the intestacy rules. The person may not in the course of the lifetime distribution of his property, for whatever reason, disinherit an heir. Alienation of property, especially land, to strangers was frowned upon. A distribution made during lifetime is final and may not be altered by will.

21.4 Testate succession

The institution of will making is not uncommon among traditional Africans. A person may make his will during old age or on his deathbed.[ccxlv]The purpose of the oral customary will appear to deal more with the appointment of a successor to act as the head of the family with responsibility over the deceased’s property and family, rather than to distribute the estate  Where the testator does allocate shares to the heirs, the general rule is that he cannot depart from the basic rules of intestate succession. In  Koinange and thirteen others vs. Koinange (1986) KLR 23 (Amin J), it was stated although the institution of will making is recognised in Kikuyu customary law the will so made must not depart from the general pattern of inheritance.  The practice is for the person to call a meeting of close relatives, that is: wives, sons, brothers, other relatives, friends and clansmen. He should then declare orally how his property is to be distributed between them item by item. He should also appoint the administrator of his estate, and assign his debts and claims to particular relatives. In Mukindia Kimuru and another vs. Margaret Kanario Nyeri CACA No. 19 of 1999, Shah J stated that under Meru customary law any man or woman who owns property may make a will provided that he is very old or on his deathbed. Such a will would be valid if made in the presence of clan elders, close relatives and friends, by declaring who shall be his elder owner of the home and appointing an administrator. In Re Rufus Munyua (deceased) Public Trustee vs. Wambui (1977) KLR 137 (Harris J), it was held that under Kikuyu customary law a valid oral will may be made when the testator is on his death in the presence of his close relatives by declaring how his property is to be distributed item by item and by appointing the administrator of his estate.

At customary law any person, whether male or female, who owns property may make a will, provided that the person is advanced age, or on his deathbed.[ccxlvi] Normally relatives would not allow a young person to make a will, as doing so would be seen as inviting death. It is not permissible for a person who is drunk, insane or senile to make a will. A will once made does not take effect until the maker’s death, but the will may be revoked or altered by a procedure similar to that followed in making it.

Will making allows the testator to deviate to an extent from the rules of intestacy under customary law. In general, however the testator should not bequeath land to strangers, although in some cases he may make small gifts to strangers. The testator may will property to members of the family who are not entitled in intestacy, but he should not deprive an heir his whole inheritance. He may make gifts to daughters; however, this should not include land. He is at liberty to alter by will the shares of heirs to give more to one than another. He may not however disinherit anybody by will.

21.5 Distribution upon intestacy

The distribution of a person’s property upon intestacy depends largely on the marital status of the deceased. As a rule, the widows lose any rights of inheritance upon their remarriage or upon moving back to their parents.

(a) Estate of a monogamist with sons and daughters

With respect to land, the widow is entitled to remain on the piece of land given to her by the deceased on marriage. On her death, her portion goes to the son who has taken care of her, normally the youngest son. During her lifetime, she will have the right of use and cultivation over this land together with the youngest son. The rest of the land is divided equally among the other sons except that the eldest son may receive a slightly larger share. Daughters are not entitled to a share of the land. In Kanyi vs. Muthiora (1984) KLR 712 (Kneller JA Chesoni and Nyarangi Ag. JJA) it was held that under Kikuyu customary law, land is inherited by sons to the exclusion of married daughters.[ccxlvii] In Mukindia Kimuru and another vs. Margaret Kanario Nyeri CACA No. 19 of 1999, Shah J stated that under Meru customary law women do not inherit land on their father’s side; they play their part in the family or clan in which they marry. In Duncan Gachiani Ngare vs. Joseck Gatangi and others Nairobi HCCC No. 1460 of 1977, Muli J left out the daughters from the sharing of the estate of a deceased person because under Kikuyu customary law  females do not inherit land or property from their fathers.

 In some communities, the rules of intestacy allow unmarried daughters to inherit land. In Estate of Mutio Ikonyo Machakos HCP&A No. 203 of 1996, Mwera J stated that under Kamba customary law only unmarried daughters or those divorced (and dowry returned) can claim to inherit.[ccxlviii] In Kanyi vs. Muthiora (1984) KLR 712 (Kneller JA Chesoni and Nyarangi Ag. JJA) it was stated that unmarried daughters were allowed under Kikuyu customary law to inherit land[ccxlix]. Where the unmarried daughter has no child her share is for life, but if she has an illegitimate male child then that child can inherit her share.

The rules on distribution of livestock are the same as those for land. The widow is entitled to keep livestock given to her by her husband, which revert to the youngest son upon her death. The other sons share the livestock equally among themselves, although the eldest son may get a slightly bigger share. The widow will usually retain the furniture, as well as the crops that she had been cultivating and shares them with the youngest son. Crops from the deceased’s land are shared equally among the other sons, with the eldest son receiving a slightly larger share. Ornaments and weapons are inherited by the eldest son. Daughters are not entitled to any share of traditional movable property, but the mother may give them some crops.

(b) Estate of a polygamist with sons and daughters

The widows retain the land allocated to them by the husband during his lifetime, which reverts to each widow’s youngest son upon her death. The rest of the land is divided by reference to each house in equal shares.[ccl] In Kanyi vs. Muthiora (1984) KLR 712 (Kneller JA Chesoni and Nyarangi Ag. JJA) it was held that under Kikuyu custom if a man with two or more wives died without making a will, his land is shared equally by the houses; each wife and her children. The houses never die when there are heirs to the houses and it is irrelevant whether the wives are alive or not. In Koinange and thirteen others vs. Koinange (1986) KLR 23 Amin J) held that the cardinal principle of Kikuyu customary law of inheritance is the observance of equality amongst the different households of the deceased person. It was further held that in the distribution the senior house may receive a slightly larger share.[ccli]  The land is subsequently divided within each house as in a monogamous household. The livestock is similarly divided, except that livestock received as dowry for a daughter automatically goes to the house from which the daughter was married, and is not shared by the other houses. With respect to movable property, each widow retains the furniture in her house. The crops are distributed as in the case of the land on which they stand. The eldest sons of each house share the ornaments and weapons of the deceased.

(c) Estate of a married man with one or more wives, no children or daughters only

Each widow retains her portion of land and the livestock given to her by the husband during his lifetime. Widows also retain crops from the land they were cultivating and the furniture in their houses. The deceased’s brothers inherit the ornaments and weapons. 

(d) Estate of an unmarried man

The property of an unmarried man is usually shared out as follows:
  1. by his father; or if dead or absent,
  2. by his next younger brother; or if dead or absent, by his next older brother; or if dead or absent. by the son of his next younger brother; or in his absence,
  3. by the son of his next older brother; or in his absence,
  4. by his half-brother; or in his absence,
  5. by the son of his half brother; or in his absence,
  6. by his paternal uncles.

In Mwathi vs. Mwathi and another  (1995-1998) EA 229 (Gicheru, Kwach and Shah JJA)), the court held that where Kikuyu customary law applies to an intestate’s estate, the property ought to be shared equally among the deceased’s brothers, to the exclusion of the sisters, if any..

(e) Estate of a widow

The property of a widow, whether inherited from her husband or acquired by the woman, is inherited by her sons usually in equal shares. In some instances however, the youngest son, and in other cases the eldest son, may receive a slightly larger share. If there were no sons, the heir would be her deceased the deceased husband’s brother.

 (f) Estate of a married woman

The property which a married woman holds, whether given to her by her husband or not, is inherited by the husband on her death.

(g) Estate of an unmarried woman

Any property held by an unmarried woman is inherited by her father or in his absence by her full brother. Where there are several brothers the estate is shared equally between them. If the woman had sons, they take priority over everyone else, and share the property equally. In Mukindia Kimuru and another vs. Margaret Kanario Nyeri CACA No. 19 of 1999, Shah JA stated that it was a matter of general notoriety that under Meru customary law the property of an unmarried girl is inherited by her father, or in his absence by her eldest full brother, who is expected to share in unspecified amounts with her other full brothers.

21.6  Administration of Estates

The administrator in customary law may be appointed either by will or by the family elders in intestacy.[cclii] Usually after the burial and mourning, there would be a meeting of the elders, whose agenda would be to appoint or confirm an administrator and to discuss the inheritance and assign debts and claims. The elders usually appoint an elder son as administrator; unless there was good cause to pass him over. If the son is still a minor, the elders would appoint the deceased’s eldest brother as was the case in Ngeso arap Leseret vs. Ibrahim (1929-30) 12 KLR 50 (Sir Jacob Barth CJ).  Where there are no sons, the elders would appoint other male relatives of the deceased into the office.

There are three principal functions of an administrator in customary law of succession. In the first place, he becomes the head of the family of the deceased, and in that respect represents the family for all legal purposes. Secondly, he is the legal guardian of the widow and the children of the deceased in certain cases. Thirdly, he acts as the administrator the deceased’s estate.

The duties, rights, powers and liabilities of a customary law administrator are similar to those of the personal representative under the Law of Succession Act. The main duty of the administrator is to assume control over the property to be distributed. He has power, for example, to as tenants-at-will to vacate land leased to them by the deceased. The administrator is also liable to be sued for debts owed by the deceased, except where such debts have been assigned to particular heirs. The administrator will also be responsible for payment out of the estate of any funeral expenses. It also falls upon the administrator to distribute the shares to the heirs. This should be in accord with the deceased’s wishes as expressed in a will or according to the rules of intestacy as directed by the elders. Where there are minors, the administrator acts as the trustee of the property of minor heirs until they reach the age of majority.  In Gituanja vs. Gituanja (1983) KLR 575 (Potter, Kneller JJA and Chesoni Ag. J) and Njuguna vs. Njuguna (1984) KLR 527 (Madan, Law and Potter JJA), the Court of Appeal held that under Kikuyu customary law upon the death of the father the eldest son assumes title, as trustee over the land, but his rights are no more than that of other family members. He cannot sell the land or dispose of it in any other manner. He is essentially a trustee for his mother and other family members.

The appointment as administrator whether by will or by the elders in intestacy may be revoked by the elders. In that eventuality, the elders appoint another administrator as a replacement. The elders resort to such action where the administrator is not performing his functions effectively. The functions of the administrator of the estate cease on the revocation of the appointment, on death, or on the full administration of the estate.

21.7 Proof of African Customary Law

The law requires that customary law must be proved as a matter of evidence.[ccliii]This means that it should be treated rather differently from legislation, common law and equity. Since customary law is unwritten, witnesses must prove it. The Privy Council in the Ghanaian case of Angu vs. Attah (1916) PC 1874-1928, 43 laid the rule on this point as follows:

As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs have by frequent proof in the courts become so notorious that the courts will take judicial notice of them..

The statutory basis for proof of customary law in Kenya is the Evidence Act (Cap 80 Laws of Kenya) and the Civil Procedure Act. Under section 51 of the Evidence Act, persons who are likely to know of its existence can adduce evidence concerning opinions relating to custom or right. In Ernest Kinyanjui Kimani vs. Muiru Gikanga and another (1965) EA 735 (Newbold VP and Crabbe JA, Duffus JA dissenting) it was held where customary law is neither notorious nor documented it must be established for the court’s guidance by the party intending to rely on it. The witnesses need not be experts as expert evidence is not necessary to establish customary law. The witnesses need not even be Africans.[ccliv]The Civil Procedure Act at section 87 provides that the court may call in the aid of assessors in any cause or matter in which questions may arise as to the laws or customs of any tribe caste or community. The assessors’ duty is to advise the court on matters of which they have special knowledge and in particular of the relevant customary law. Assessors are not expert witnesses.

The powers of the court to take judicial notice of customary law was stated in the rule in Angu vs. Attah (1916) PC 1874-1928, 43 to the effect that where particular customs have frequently been proved in the courts to the extent of being notorious the court will take judicial notice of them. It is not clear whether under the Evidence Act customary law may be judicially noticed. Section 60(1) of the Evidence Act provides that courts should take  judicial notice of all written laws and all other laws, rules and principles , written or unwritten, having a force of law in any part of Kenya. The reference to unwritten law in the provision implies that the courts may take judicial notice of African customary law. In Ernest Kinyanjui Kimani vs. Muiru Gikanga and another (1965) EA 735 (Newbold VP, Crabbe and Duffus JJA), the Court of Appeal for East Africa (with Duffus JA  dissenting)  took the view that the rule in Angu vs. Attah (1916) PC 1874-1928, 43 applies and that customary law cannot be judicially noticed unless it has become notorious. The Court of Appeal in Wambugi w/o Gatimu vs. Stephen Nyaga Kimani (1992) 2 KAR 292 (Masime and Kwach JJA, with Hancox CJ dissenting) held that the Kikuyu custom that a married woman cannot inherit her father’s land was sufficiently notorious for the court to take judicial notice of it: and evidence was not required to establish the custom, which was a salutary one and ensured that the land remained in the family.

By virtue of the rule in Angu vs. Attah (1916) PC 1874-1928, 43 and the decision of the Court of Appeal in Ernest Kinyanjui Kimani vs. Muiru Gikanga and another (1965) EA 735 (Newbold VP, Crabbe and Duffus JJA) judicial precedent is an acceptable mode of ascertaining customary law.[cclv]

The growth in volume of material on customary law in the form of restatements, textbooks, articles, reports and other materials has meant that this aspect of proof of customary has gained importance, Customary law may be proved as a fact by documentary as well as oral evidence. Books or manuscripts purporting to describe customary law are admissible in evidence. Where the statements of law are treated as binding or conclusive then the book is an authority and customary law is administered as law, but where the statements are treated as evidence of what the customary law then the law is ascertained as a fact. The legislative provisions in the Evidence Act on this are in sections 33, 41 and 60.

In Mwathi vs. Mwathi and another (1995-1998) 1 EA 229 (Gicheru, Kwach and Shah JJA), the Court of Appeal treated the statements of law on Kikuyu customs in Eugene Cotran’s Restatement of African Law: 2 Kenya II The Law of Succession regarding the distribution of the estate of an intestate as binding or conclusive on the matter[cclvi]. The Court of Appeal in Atemo vs. Imujaro (2003) KLR 435 (Omolo, Shah and Waki JJA) cautioned against treatment of Cotran’s Restatements as binding on every issue of customary law in Kenya customary law is dynamic and the law as stated in the Restatements  might not be the true position today. In Gituanja vs. Gituanja (1983) KLR 575 (Potter, Kneller JJA and Chesoni Ag. JA) and Mary Wanja Gichuru vs. Esther Watu Gachuhi Nairobi CACA No. 76 of 1998 (Kwach, Shah and Pall JJA) the Court of Appeal similarly treated Jomo Kenyatta’s Facing Mount Kenya: The Tribal Life of the Gikuyu[cclvii] as binding or conclusive on land inheritance among the Kikuyu.  

For the purpose of causes or matters brought under the Law of Succession Act, rule 64 of the Probate and Administration Rules provides that where any party desires to provide evidence as to the application or effect of customary law, he may do so by calling oral evidence or by reference to any recognised treatise or other publication on the relevant customary law.






CHAPTER TWENTY-TWO


22 THE ISLAMIC LAW OF SUCCESSION

22.1 Introduction

Islamic law was, for a long time before colonialism, the law governing Muslims in Kenya. The advent of colonialism saw the continued application of Islamic law to Muslims, especially on their personal law matters. The Law of Succession Act sought to end this practice by providing a uniform code of succession applying to all the residents of Kenya. 

The distributable estate of the deceased includes all rights to property, rights connected with property and other related rights, such as debts, compensation, among others[cclviii]. The duties arising from the estate are those that are capable of being satisfied out of the estate. The residue after payment of funeral expenses and the discharge of all obligations and debts is distributed according to Quranic principles.

22.2 General Principles of Islamic Law of Succession

Inheritance is a matter of great importance to Muslims, and for this reason, the law of succession is a crucial aspect of Islam. Islam is considered a complete way of life. The Islamic legal term for inheritance is mirath, which means the inheritance to be shared from the property of the deceased among his successors. The Islamic law of inheritance is scientific and exact. It guides as to who is inherited, inherits, and in what shares[cclix].

The distributable property will be all the property that the deceased owns, without distinguishing between personal and family property. The main criteria for inheriting property in Islam are blood relationship and marriage. Islamic law recognises both testate and intestate succession. The Quranic rules also give a Muslim the freedom to dispose of his property during his lifetime.

Only a third of deceased person’s estate can be disposed of by will. The remaining two thirds are distributed under the rules of intestacy which are laid out in the Quran. The Quran fixes the shares allocated to the persons identified in the holy book as heirs. In Chelang’a vs. Juma (2002) 1 KLR 339 (Etyang J) it was stated that Islamic law has fixed the shares of each heir  and the said shares cannot be changed modified added to or deleted by anyone. The heirs include the surviving spouse, parents and children of the deceased. Grandparents will usually inherit if heirs in the nuclear family cannot inherit for whatever reason. Generally, both sons and daughters are entitled to a share, although sons take a share larger than that of daughters.

The rules regulating succession in Islam are founded on the principle that the deceased’s property should devolve on those, reason of consanguinity or marital relations, have the strongest claim. Where there are many claimants and it is difficult to settle the claims the estate would be distributed among the claimants in such order and proportions as are in harmony with the natural strength of their claims.


22.3 Distribution during lifetime

Islamic law permits a person to give away all his property by gift inter vivos. It is, however, expected that the person would think of his dependants, and not give away his property in a manner which leaves them destitute

22.4 Testate succession

Will making is allowed, and even encouraged, under Islamic law. However, the testamentary capacity of a Muslim is subjected to two limitations, namely: he can only bequeath one-third of his property by will, and even then, he cannot give any part of the one-third to his heirs as stated in Re the Estate of the Late Suleman Kusundwa (1965) EA 247 (Sir Ralph Windham CJ), W. B. Keatinge vs. Mohamed bin Seif Salim and others (1929-30) 12 KLR 74 (Thomas J) and In the Estate of Faiz Khan, deceased (1929-30) 12 KLR 74 (Thomas J).[cclx]The one-third can only be willed to outsiders or strangers, but the willable one-third may be bequeathed to the testator’s heirs with the consent of heirs. Testamentary power is exercisable by any Muslim who is sane, rational and above the age of fifteen. A will is vitiated by undue influence or fraud,[cclxi] and can be revoked at any time by the testator before his death or by the operation of the law.
                                                                
According to Sir Clement de Lestang in Mohamed Thabet Ali Maktari vs. Mohamed Rageh Mohamed Saleh Maktari and others ((1966) EA 35 under Islamic law a will may be made either orally or in writing. It does not have to take any particular form. If oral it must be made in the presence of two male adult Muslim witnesses. If it is in writing it need not be signed and if signed it need not be attested[cclxii]. In W. B. Keatinge vs. Mohamed bin Seif Salim and others (1929-30) 12 KLR 74 (Thomas J)) it was held that an oral will would require two male adult Muslim witnesses, but in the absence of witnesses the will would stand good if approved by the heirs. A similar holding was made in In the Estate of Faiz Khan, deceased (1929-30) 12 KLR 74 (Thomas J), where it was held that where there is a reputable witness supported by other witnesses, the court may accept the evidence of the reputable witness where it differs from that given by the other witnesses. The will of a Muslim need not be attested as the Quranic injunction regarding witnesses is considered to be a mere recommendation, it is not mandatory. What really matters is the intention of the testator, so long as the intention of the testator is reasonably clear the will takes full effect. It was, however, held in Mohamed Thabet Ali Maktari vs. Mohamed Rageh Mohamed Saleh Maktari and others ((1966) EA 35 (de Lestang Ag. VP, Duffus and Law JJA) that where the alleged will is neither written nor signed by the maker and its validity depends solely on oral evidence the court should treat such evidence with caution and act on it only if it is reliable.

What is available for distribution by will is a third of the residue of the estate after the payment of debts and other liabilities.[cclxiii]The Quranic rules require that the subject matter of the bequest be in existence at the time of the testator’s death, and not at the time of the making of the will. If the gifts exceed the allowed one-third, they would not take effect. The gifts in excess of the one-third may take effect with the consent of the heirs, which must be obtained after the testator’s death. If the consent is not available then the gift fails or abates.[cclxiv]

As mentioned above the one-third of the estate should be bequeathed to strangers. This can be to any person who is capable of holding property, regardless of his religion. A bequest can also be made to an institution or for a religious or charitable object that is not opposed to Islam. The beneficiary must be alive or in existence at the time of the bequest, and not necessarily at the time of the testator’s death. A bequest to an heir is invalid. The killer of the testator cannot inherit from the deceased, and a gift to the killer therefore lapses. The death of a beneficiary before that of the testator automatically results in the lapse of the gift. 

22.5 Intestacy

The other two-thirds that are not subject to testate succession are disposed of in accordance with the rules of intestacy. The Quran contains rules for the disposal of intestate property. It provides for inheritance by both male and female relatives of the deceased and for a share for everyone entitled however small the estate.[cclxv]Under these rules all kinds of property are subject to the Islamic law of intestacy, but the issue of inheritance only comes up when the deceased has left some property. The nearer relative precludes the distant relative from inheritance. The distribution in intestacy is after the payment debts and legacies.

The shares of the various heirs are fixed under the Quranic rules of intestacy, and cannot be interfered with or exceeded. In Manser bin Simba vs. H. Fitzgerald Reece as Trustee for Mwana Aisha binti Juma 1918-22) 2 ZLR 30 (Reed Ag. CJ, Barth CJ and Pickering J) it was held that a Muslim heir may sell his interest in the estate, but the heir in the circumstances cannot sell more than their Quranic share in the estate. The Quran gives the son a portion equal to that of two daughters. In Juma bin Mwenyezagu vs. Mwenye bin Abdulla (1897-1905) 1 EALR 95 Hamilton J stated that under Islamic law a son is entitled to inherit the estate of his deceased father on the ground of the acknowledgement of paternity only by the deceased. It was also said that the proof of the marriage of the son’s mother with the deceased is not necessary.

The fixed shares are laid down in the Quran for each of the deceased’s relatives. The precise shares are specified as follows: for the widow (one-eighth) and widower (one-quarter), for the father (one-sixth) and mother (one-sixth), for daughters (one-half), for full and consanguine sisters (one-half) and for uterine brothers and sisters (one-sixth).[cclxvi]If there are only daughters, their share is equivalent to two-thirds of the estate subject to intestacy. If the only child is a daughter, her share is one-half of the estate available for distribution in intestacy. Each surviving parent is entitled to a sixth of the intestate estate if the deceased leaves children. If there are no children and the parents are the only heirs, the mother takes one third while the father takes the other two thirds of the available estate. If, however, the deceased is survived by parents and, but no children siblings, the mother of the deceased will take a sixth.[cclxvii]

Heirs are divided into seven classes: three principal and four subsidiary classes. The three principal classes are Quranic, agnatic and uterine heirs.[cclxviii]The subsidiary classes are: successor by contract, acknowledged relative, sole legatee and the state. The intestate property goes in the first instance to the Quranic heirs. If the Quranic heirs do not exhaust the estate or there are no such heirs, it goes to the agnatic heirs. In the absence of Quranic and agnatic heirs the property is divided among the uterine heirs. The heirs in the subsidiary category inherit only if the principal heirs were not there.

There are certain impediments to inheritance. These may be complete or partial. There are three general categories of persons who are barred or excluded from benefit.

The first category is that of persons who are excluded from inheritance because of their conduct or attributes. In this category are the killer of the deceased whose estate is the subject of inheritance. Homicide bars the killer absolutely from inheriting the property of the victim.[cclxix]Difference or change of religion is the other consideration.[cclxx] A non-Muslim may not inherit in intestacy. In Chelang’a vs. Juma (2002) 1 KLR 339 (Etyang J) it was held that under Islamic law a non-Muslim cannot inherit the estate of a Muslim. In that matter a daughter and siblings of the deceased Muslim, who confessed to be Christians, were excluded from benefit because of their being non-Muslims. It was held, however, that the mother of the deceased who was a non-Muslim was nevertheless entitled to a share of the estate under Islamic law as a dependant. It is, however, permissible for a Muslim to benefit a non-Muslim by will.

Islamic law recognises certain marriages between Muslim men and non-Muslim women. Where a Muslim man contracts a marriage with a kitabia, that is with a Jewess or Christian woman, but not with a pagan or idolatress, the marriage will be valid.  In Re Salum (1973) EA 522, Mfalila Ag. J held that a Christian widow in the matter was entitled to a share of the deceased’s estate as Islamic law recognised her marriage to the deceased.

Slavery is another bar to inheritance.[cclxxi] This is, however, of no relevance today since slavery has been outlawed.

The second category is of potential heirs who are excluded from inheritance because of the immediacy of certain other recipients who are closer to the deceased[cclxxii]. Relatives of the second grade do not inherit if there is a relative, among the survivors, who is of the first grade. The general rule is that an heir who relates to the deceased through another, or who is remoter, does not inherit if the latter are among the survivors. In In the Matter of the Estate of Robert Napunyi Wangila (Nbi HCSC No. 2203 of 1999 (Koome J), it was held that  according to the principles of Islamic law step-relations of a Muslim are precluded and disqualified from inheriting the deceased’s estate. Likewise, illegitimate children have no right of inheritance under Islamic law. It was on this ground, inter alia, that the illegitimate daughter of the deceased in Chelang’a vs. Juma (2002) 1 KLR 339 (Etyang J), whom the deceased recognised has his own and supported during his lifetime, was excluded from benefit.

The third category is of heirs whose shares may vary, but who are not entirely excluded from benefit. This called partial exclusion whose effect is a wider distribution of the property in smaller shares[cclxxiii].  A father’s share depends on whether or not the deceased wife is survived by any children. If children survive the wife the father’s share is reduced from one-half to one-quarter of the net estate. A sister of the deceased may be excluded from one-half to one third if there is another sister to join her, but she will be excluded entirely if there is a son of the father of the deceased among the heirs.

22.6 Administration of Estates

According to the general principles of Islamic jurisprudence, there was no administration but a mere distribution of the estate by the heirs or by the state. The notion was that the estate did not vest in the personal representative of the deceased or the state, but in the heirs from the moment of the death of the deceased. 

Administration of estates, in the sense of the recognition of executors or the appointment of an administrator is alien to Islamic law or jurisprudence. The duty of distributing the estate of the deceased lies with the state or the heirs. This is so because the estate of a deceased Muslim vests upon the heirs immediately upon death[cclxxiv]. Probate is generally not necessary for the admission of the will of a Muslim as evidence, and a grant of letters of administration in intestacy is unnecessary except for the recovery of debts due to the estate of the deceased.

The duties of the administrator, whether the state or the heir, include arranging a decent funeral and burial ceremony for the deceased, discharging the just debts from the whole of heirs remaining effects and paying legacies out of one third of what remains after his debts are paid. In Administrator General vs. Abdul Hussein (4 EALR 26 (Hamilton J) it was stated under Islamic law strict proof of claims against the estates of deceased persons is required It also the duty of the administrator to distribute the residue among the deceased’s successors who are identified in the Quran and in accordance with the shares stated in the scripture. The shares of the heirs are settled from the net estate after payment of funeral expenses, debts and legacies.



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PART FIVE: CONFLICT OF LAWS

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CHAPTER TWENTY THREE

23. CONFLICT OF SUCCESSION LAWS

23.1 Introduction

The multiplicity of autonomous legal systems within a country and the legal consequences that follow give rise to conflicts of laws and the legal consequences that follow. It is often referred to as competition of laws. Where a choice has to be made between two or more bodies of laws applying in the same country it is called internal conflict of laws.

Internal conflict of laws in Kenya is a heritage of her colonial past. The Kenya legal system is comprised of various distinct bodies of law that apply concurrently. These are set out in section 3(1) of the Judicature Act; and include statutes, common law and equity, African customary law and Islamic law. Kenya’s legal system reflects the contradictions in the country. The system symbolises the conflicting social conditions in the society making conflicts of laws inevitable.

There are different levels of conflict. Conflicts between statutes themselves, especially between general statutes and specific statutes. There are also conflicts between African customary law and the applicable English common law, mainly where the particular dispute is not subject to statutory regulation. Conflicts are common between statutes and African customary law, between different African customary laws and between African customary law and Islamic law.

The Kenyan law on conflict of laws, section 3(1) of the Judicature Act, is  a fairly vague provision. It lists the general laws applicable in Kenya and directs the courts on which law to turn to and in what situations. The provision requires that the English common law and equity should apply ‘so far as the circumstances of Kenya and its inhabitants permit’. It is not clear what these circumstances are. Section 3(2) state that the courts should be guided by African customary law. Likewise, it is not clear what ‘guided’ means. It is not clear if African customary law is to be applied in all cases where one or two of the parties are subject to it or affected by it.

23.2 Areas of Conflict of Succession Laws

Conflicts in this area manifest themselves in several ways. Conflicts arising from the interaction of  the different  systems of succession laws applicable to the various cultures of the Kenyan peoples. The other area of conflict arises from the application of the Law of Succession Act to the administration of the estates of those persons who died before the Act came into force on the one hand and those who wrote their wills before that date, but died after the Act had come into force.  There are also conflicts between the Law of Succession Act and other statutes that have a bearing on probate and administration. The application of foreign laws to property in Kenya is another area of possible conflict.

23.3 Different Succession Systems

The main cause of the conflicts arises from the fact that Kenya does not have a homogeneous community with the same culture, religion and language. Instead, it has peoples of different cultures, each with their own set of succession laws or principles. Interaction between the African peoples and other races resident in Kenya has also created a further dimension to the conflict.

When faced with this conflict the colonial court attempted to find a solution by making three main assumptions. The first assumption was expressed in section 39 of the African Christian Marriage Divorce Ordinance, 1902. This provision assumed that once an African contracted a marriage under the statute he automatically abandoned the African way of life, African culture and African laws including those pertaining to succession. The law made applicable to such African was the English law of succession.

The leading case to illustrate this assumption is Yinska vs. Y (1972) Journal of African Law 86. Nigeria, being then a British colony, had legislation in pari materia with the Kenyan African Christian Marriage and Divorce Ordinance, 1902. In the Nigerian case, the deceased was a Muslim who died testate having written his will in accordance with the Wills Act, 1887 of England. By following the English statute, he disposed of his property in a manner inconsistent with the Quran, which requires a Muslim to dispose only a third of his property by will, leaving the rest to be disposed of according to the Quranic principles. The will was challenged on this ground. It was held that since the deceased chose to write his will according to English law, he intended thereby that Muslim law would not apply and the proper law was the Wills Act, 1887.[cclxxv]

In Cole vs. Cole (1898) 1 NLR 15  a Nigerian Christian married a Christian woman. They had a son who was of unsound mind. Upon the death of the man, a dispute arose over his estate. His elder brother argued that the law of succession governing the deceased was African customary law under which women did not inherit the estates of their deceased husbands. The widow argued that since she and the deceased had married under the Marriage Ordinance they had by so doing removed themselves from the operation of African Customary law and had instead adopted the English law of succession. Consequently, she and her son were the sole heirs of the deceased person. The deceased’s brother lost. The court held when the deceased and his wife celebrated marriage under statute they thereby removed themselves from the operation of African customary law and the operative law was the relevant English law of succession.

The other assumption used to resolve the conflict was that even upon conversion into Christianity the African retained certain aspects of his culture and kept his way of life as before, except in those situations expressly provided by statute. This assumption was resorted to as a compromise measure in those situations where it was clear that despite embracing the Western faith and way of life the African did not intend to be governed completely by Western law. The dispute in Otieno vs. Ougo and another (No. 4) (1987) KLR 407 (Nyarangi, Platt and Gachuhi JJA) was a conflict between the application of customary law and statutory law on a burial where the applicable law is not clear. The widow grounded her claim on statute and the common law, while the extended family/clan relied on customary law. The Court of Appeal resolved the dispute by choosing African customary law. The court’s key finding was that an African person in Kenya cannot possibly opt out of his customary law, unless the dispute is subject to statute.

This conflict also touches on the validity of a customary law marriage contracted in spite of a persisting statutory marriage. In Anastacia Mutheu Benjamin vs. Lakeli Benjamin and another Nairobi CACA No. 6 of 1979 (Madan, Law and Potter JJA) the deceased was survived by two widows. The deceased had married the first widow under statute; at the time of death, the two were estranged but not divorced. The second widow was not married to the deceased under any system of law and she was therefore a cohabitee. She had been married previously by someone else under both statute and customary law, and whereas the customary law marriage had been dissolved that under statute was still subsisting.  The Court of Appeal concluded that the second widow was not a widow of the deceased as she lacked capacity, by virtue of section 4 of the African Christian Marriage and Divorce Act and section 37 of the Marriage Act, to marry the deceased; and she was therefore not entitled to inherit his estate.[cclxxvi]The High Court made similar decisions in Re Ruenji’s Estate (1977) KLR 21 (Sachdeva J) and Re Ogola’s Estate (1978) KLR 18 (Simpson J)[cclxxvii].

The other assumption was that the African remained an African even if he adopted the Western way of life. With regard to succession this meant that African customary law would apply even to the African who had embraced and led the Western way of life. This assumption was given legislative recognition by the Native Christian Marriage and Divorce Ordinance, 1904, which provided that African customary law was applicable to all Africans irrespective of their way of life or religion.  It was on the basis of this law that in Benjawa Jembe vs. Priscilla Nyondo  (1912) 4 EALR 120  (Barth J) the court held that marriage under the rites of the Anglican church did not affect the succession to the estate of the deceased which  remained subject to African customary law.

When conflicts arise between African customary law and Islamic law the courts resolve them in favour of  Islamic law. In Ali Ganyuma vs. Mohamed Ali (1927-1928) 11 KLR 30 (Sir Charles Griffin CJ, Sir Alison Russell CJ and Guthrie-Smith J) the issue was whether succession to the estate of a Mdigo who had converted to Islam and practised the Islamic faith, should be according to African customary law or Islamic law. It was held that where Africans were Muslims, Islamic law applied to them.  This decision was founded on a special legislation, section 4 of the Mohammedan Marriage Divorce and Succession Ordinance, which provided that where a person contracted a marriage under Islamic law, upon his death the law of succession applicable to his estate was Islamic law. In Re Salum (1973) EA 522 (Mfalila Ag. J) the issue was whether customary law or Islamic law applied to the estate of the deceased African of the Hehe tribe who was brought up a Muslim, had married a Christian outside his tribe, did not live according to tribal customs and brought up his children as Muslims. The court, after considering the deceased’s lifestyle, found that customary law did not apply to the estate, Islamic law instead applied. In Re the Estate of the Late Suleman Kusundwa (1965) EA 247 (Sir Ralph Windham CJ) it was stated that there are two systems of law which may apply in an African muslim community, Islamic law in matters peculiarly personal, such as marriage, and customary law which may apply in all other spheres of life. On the facts of the case, it was held that the status and rights of a wife after her husband’s death must be governed by the same corpus of law as governed them before his death. Her rights of inheritance are bound up with her rights, or comparative lack of them, during matrimony[cclxxviii].

The Ismailia Muslims and Memons provided another dimension to the conflict, they were subject to both Islamic law and Hindu customary law. It was not clear which law should be applied to the estate of a deceased Ismaili muslim. In Anarali Museraza ( minor by his next friend) Mohamedtaki A. P. Champsi vs. Mohamedali Nazerali Jiwa and others (1966) EA 117 (Wicks J) it was held that the law governing succession for Muslims belonging to the Khoja sect was Islamic law of succession because these people were Muslims even though they were also governed by Hindu customary law. In Abdurahim Haji Ismail Nathu vs. Halimabai[cclxxix] (1916) 6 EALR 113 (Earl Loreburn, Viscount Haldane and Lord Wrenbury) the Privy Council held that that a Hindu family, being themselves Muslims emigrate from India and settle among Muslims the presumption arises that they have accepted the law of the people whom they have joined, if their actions are such as to raise the inference that they have cut themselves from their old environments. On the facts of the case it was held that an inference arose that the law governing succession to intestate estates amongst Memons domiciled at Mombasa must be taken to be Islamic law.[cclxxx]

The other theatre of conflict is between customary law and statute law. In Kivuitu vs. Kivuitu (1991) KLR 248 (Gachuhi and Masime JJA, and Omolo Ag. J) the Court of Appeal underscored the supremacy  of written law over customary law and held that in the event of a conflict between statute and customary law the same ought to be resolved in favour of the statute. In Re Kibiego (1972) EA 179 Madan J disregarded Nandi customary law, which required elders to appoint the eldest son of the deceased as administrator, applied the statute, and held that a widow of whatever race is the proper person to obtain representation to her husband’s estate.

23.4 The Law of Succession Act and Conflict of Laws

(a) African customary law

The Law of Succession Act provides under section 2(1) of the Law of Succession Act that the statute has universal application to all Kenyans in matters of testate and intestate succession and that it applies to all persons who died after 1st July 1981. In Francis Njoroge Muigai and another vs. Johnson Njoroge Muigai Nairobi HCCA No. 18 of 2001 (Kamau Ag. J) it was impliedly held that section 2(1) of the Act effectively excludes the application of customary law to the estates of deceased Africans. Section 2(2) provides that for those persons who died before that date the governing succession to their estates is the law which was in force at the time of their death.[cclxxxi] However, in matters of administering the estates of such persons the applicable law is the Law of Succession Act. In other words for persons who died before 1st July 1981 the substantive law of succession applicable to them is the law which was in force at the time of their death. However, the procedural law applicable to their estates is the Law of Succession Act. In In the matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias Mwaura Mbura (deceased) Nairobi HCSC No. 935 of 2003 Kamau Ag. J stated that since the deceased in the matter died prior to the commencement of the Act the distribution of his estate was to be strictly governed by the applicable customary law.[cclxxxii]

The other provisions which seek to resolve conflicts between customary law and the Act are sections 32 and 33 of the Act, which exempt sections of the Kenyan society from the intestacy provisions and allow the application of customary law. In In the Matter of the Estate of Mwaura Gathari (deceased) HCSC No. 1678 of 1999 Rawal J said that the only provisions in the Act which allow the application of customary law to estates of persons who die intestate after the commencement of the Act are sections 32 and 33, but limited to those areas gazetted as required in law.

Although the Act is clear on the circumstances under which customary law may apply to the estate of a deceased intestate, the courts often overlook the Act and apply customary law. In Mwathi vs. Mwathi and another (1995-1998) 1 EA 229 (Gicheru, Kwach and Shah JJA), the Court of Appeal overlooked Part V of the Act and applied Kikuyu customary law to the estate of an intestate who died in 1987. The court asserted, quite erroneously, that ‘the intestate succession of a deceased Kikuyu is governed by Kikuyu customary law’.[cclxxxiii]In Estate of Mutio Ikonyo (deceased) Machakos HCP&A No. 203 of 1996, Mwera J decided that a married daughter was not entitled to inherit from her father’s estate, despite the deceased having died after the Law of Succession Act came into force, which does not discriminate between male and female children whether married or not.

(b) Family law statutes

The Law of Succession Act has sought, through section 3(5), to resolve the conflict presented by the marriage of a wife under customary law in spite of a persisting statutory marriage, by recognising wives married under customary law by a man who had previously or subsequently contracted a statutory marriage. Section 3(5) seeks to circumvent section 37 of the Marriage Act and section 4 of the African Christian Marriage and Divorce Act. 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. J) stated that section 3(5) was intended to reverse the position taken by the courts in Re Ruenji’s Estate (1977) KLR 21 (Sachdeva J) and Re Ogola’s Estate (1978) KLR 18 (Simpson J). In Muigai vs. Muigai and another (1995-1998) 1 EA 206 Amin J held that in view of section 3(5) of the Law of Succession Act, section 37 of the Marriage Act is not a bar to subsequent wives for purposes of succession. Section 3(5), however, does not provide an ideal solution to the conflict between customary law and the family law statutes, but creates another conflict between the family law statutes and the Law of Succession Act so long as the former remain in force.

(c) Islamic law

The other dimension is the possible conflict between Islamic law and the Law of Succession Act. Section 2(3) of the Law of Succession Act resolves any such conflicts by disapplying the substantive provisions of the Act, those relating to testamentary and intestate succession, to the estate of a deceased Muslim, and instead subjects the estate of a deceased Muslim exclusively to Islamic 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. This position was analysed in detail in  Chelang’a vs. Juma (2002) 1 KLR 339 (Etyang J).

(d) Movable and immovable property

A third possible conflict is in respect of succession to immovable and moveable property, with respect to the law applicable to property situated in Kenya, but owned by a foreigner. Will the law of the country where the deceased comes from or the law of Kenya where the property is situate govern succession to such property? Section 4 of the Act attempts to resolve this conflict by providing that matters of succession relating to immovable property situated in Kenya are governed by the Law of Succession Act, regardless of the domicile of the deceased at the time of death. On the other hand, succession to movable property is governed by the law of the country where the deceased was domiciled at the time of his death. It is further provided that a person who immediately before his death was ordinarily resident in Kenya is to be presumed to have been domiciled in Kenya at the time of his death, unless there is evidence to the contrary. In In Re Estate of Naftali (deceased) (2002) 2 KLR 684, Waki J that  the law of succession that applies with regard to moveable property is the law of the country where the deceased is domiciled, and 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.

The rationale behind this provision is that it is an accepted principle under the conflict of laws that matters relating to land are best governed by the law of the country where the land in question is situate. This is because there are usually numerous national legislation regulating the use and disposal of land, which may not allow the operation of foreign laws. Regarding movable property, it is generally accepted that most of this is the deceased’s personal property and his personal law, that is the law of his domicile, should govern its disposal. 

 (e) Foreign grants

There is also the conflict between local grants and grants made by foreign courts or authorities. A grant made by a Kenyan court only enables the administrator to deal with the property in Kenya. Where there are assets located in foreign countries, a grant obtained in those countries will be necessary to deal with such property in accordance with the laws of the relevant country, unless such laws expressly allow the use of grants issued in Kenya. Pickering J in National Bank of India Ltd vs. The Administrator General of Zanzibar (1924-1926) 10 KLR stated that it is the law that no suit can be brought against an administrator in his official capacity except in the courts of the country from which he derives his authority. In Keshavlal Bhoja vs. Tejalal Bhoja (1967) EA 217 (Fuad J) it was held that a suit filed in a Ugandan court, on the strength of a grant made in Kenya, was not maintainable.[cclxxxiv]

The domicile of the deceased is often a criterion used to resolve conflicts of laws. In In the Matter of the Estate of Gerald Felix Nyawira Otiso (deceased) Nairobi HCCC No. 2715 of 1996 (Ang’awa J) the court held that in deciding whether to apply for grant in Kenya in respect of the estate of a Kenyan dying abroad or to apply for the grant in the country of death and thereafter seek the resealing of the foreign grant, the key determinant should be the domicile of the deceased. Where the Kenyan resides abroad but his domicile is in Kenya the grant should be sought in Kenya. In the instant case the deceased was a civil servant working in the Kenyan mission in South Africa, who met his death in a motor accident there. It was held that his domicile was not South Africa, which was merely his work station, but Kenya. His estate should be subject to a grant issued in Kenya, which can then be resealed in South Africa for the purpose of dealing with any property situate in South Africa.[10]

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