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]
===================================================================
PART EIGHT: ADMINISTRATION
OF ESTATES
------------------------------------------------------------------------------------------------------------------
CHAPTER FIFTEEN
15. COLLECTION, REALISATION AND MANAGEMENT OF
ESTATES
15.1 Introduction
The administration of an estate entails collection and
preservation of the estate; payment of the deceased’s funeral, testamentary and
administration expenses and all the deceased’s debts and other liabilities; and
the distribution of the estate among the beneficiaries. Apaloo JA in Stephens and another vs. Stephens and
another (1987) KLR 125 stated that a personal representative of the
deceased owes a duty to pay all the debts of the intestate and thereafter
distribute the rest of the estate to the beneficiaries. The administration of
an estate is the responsibility of the personal representatives of the
deceased, whether the deceased died testate or intestate. The provisions
relating to the administration of estates 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.
.
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.
===================================================================
PART NINE: POST-MORTEM ALTERATIONS
===============================================================
CHAPTER NINETEEN
19. DEPENDANCY AND FAMILY PROVISIONS
19.1 Introduction
Section 5(1) of the Law of Succession Act technically gives
a testator total freedom to make a will disposing of any of his property by
will to whomsoever he wishes.[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.
===================================================================
PART FOUR: THE GENERAL PRINCIPLES OF AFRICAN CUSTOMARY
LAW AND
ISLAMIC LAW ON SUCCESSION
==================================================================
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:
- by his father; or if dead or absent,
- 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,
- by the son of his next older brother; or in his absence,
- by his half-brother; or in his absence,
- by the son of his half brother; or in his absence,
- 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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