Lita Violet Shepard v Agnes Nyambura Munga [2018] KECA 127 (KLR)
The bottom line
#Kenya's Court of Appeal overturned a KShs.50 million dependant award because the judge never established what the estate was actually worth before deciding.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge took into consideration the value of the estate of the deceased in making the award of KShs.50,000,000/= to the dependant
- 2.Whether the gifts made by the deceased to the respondent during his lifetime should have been taken into account under Section 28(d) of the Law of Succession Act
- 3.Whether there was an error apparent on the face of the judgment justifying review, such that Musyoka J erred in dismissing the application for review
Key legal issues
#Whether the trial court properly exercised its discretion under Section 26 of the Law of Succession Act
The award of KShs.50,000,000/= was made without ascertaining the value of the net estate, its liabilities, or gifts made to the respondent during the deceased's lifetime; the discretion was therefore exercised arbitrarily and the decision had no legal or factual basis.
Section 28 requires the court, before ordering reasonable provision, to consider among other factors the nature and amount of the deceased's property, listed first. Kimaru J did not obtain a valuation by a qualified valuer, did not determine net worth, did not consider liabilities against the estate, and did not determine the extent of lifetime gifts. The figure of KShs.50,000,000/= was not derived from any evidence or reasonable inference, amounting to a total misapprehension and misapplication of Section 26.
Whether gifts made by the deceased to the respondent during his lifetime were gifts inter vivos to be disregarded or advancements to be considered under Section 28(d)
The trial judge erred by importing, suo motu, the characterization of the transfers as gifts inter vivos when this was not contended by the respondent, and by failing to explain why the gifts should not be treated as advancements under Section 28(d).
By the respondent's own admission the deceased had advanced properties including a house and car to her during his lifetime. The judge labelled these gifts inter vivos without any party having raised it, and further declared them inadequate on his own motion. The value of those gifts was never determined. Section 28(d) expressly obliges the court to consider any advancement or gift made to the dependant during the deceased's lifetime before deciding whether reasonable provision was made.
Whether Musyoka J erred in dismissing the application for review
The errors in Kimaru J's judgment were errors and mistakes apparent on the face of the judgment, and the appellant was entitled to review; Musyoka J erred in casually dismissing the application.
Since Kimaru J's judgment misapprehended Section 26 by awarding provision without ascertaining the net estate, the value of the estate and the lifetime gifts, those flaws were apparent on the face of the judgment. The appellant's grievances were loud and clear, and had Musyoka J addressed his judicial mind to them he would have allowed the review and reached the same conclusion as this Court.
Legal principles established
#- In making provision for a dependant under Section 26 of the Law of Succession Act, the court must first determine the value of the net estate and its liabilities, and must consider all factors in Section 28, including gifts or advancements made to the dependant during the deceased's lifetime; a provision awarded without ascertaining the net estate is legally and factually unsound.
- The nature and amount of the deceased's property is the first consideration under Section 28, and a finding of a substantial estate must be supported by cogent evidence such as a valuation by a qualified valuer.
Court orders
#- 1.The ruling of Musyoka J delivered on 25th September 2015 is set aside
- 2.The judgment of Kimaru J delivered on 5th April 2014 is set aside and substituted with an order dismissing that judgment
- 3.The appellant to have the costs of this appeal and in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Succession Cause No. 1327 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 29(1) of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appellant shall have the costs of this appeal and in the High Court.
The court whilst making provision for a dependant exercises its discretion, which must however, be exercised judicially taking into account the factors provided under section 28 of the Act.
As can be seen above the nature and extent, that is the value, of the deceased’s property is the first consideration.
The Will read together with the undisputed conduct of the deceased in first distributing portions of the property to the respondent, constitute a single project of harmonious and integral transaction, which provided for both sides of the coin – a reflection of what the deceased intended.
The appellant shall have the costs of this appeal and in the High Court.
Issues in the judgment
#The judgment states the respondent sought to be provided for and is referred to with both male and female pronouns and inconsistent characterizations (e.g. 'his dependant' then 'she was his dependant'; 'he sought' vs 'she deposed'); the gender references are internally inconsistent.
The judgment describes the deceased's estate as worth approximately KShs.1,000,000,000/= as a figure deposed to by the respondent, which the appellant denied, yet the final order dismisses the judgment awarding provision without determining the actual value, leaving the estate's worth unresolved.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lita Violet Shepard v Agnes Nyambura Munga [2018] KECA 127 (KLR)", Case Analysis (2018). Civil Appeal No. 91 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/127/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.