Dr. Symon Wairagu Githae v Albert Njeru Githae
The bottom line
#Kenya's Court of Appeal ruled that an oral will is invalid unless the maker dies within three months, so estranged children cannot be cut out of an intestate estate.
What this practically means
#Executive summary
#Key legal issues
#Validity of the alleged oral will
The alleged oral will was invalid because the deceased died more than three months after it was made, contrary to section 9(1)(b) of the Law of Succession Act.
Section 9(1)(b) provides that no oral will shall be valid unless the testator dies within three months from the date of making it. The deceased allegedly made the oral will on 9th February, 2008 but died on 28th April, 2009, more than a year later. The exception for members of the armed forces or merchant marine on active service did not apply. The oral will therefore could not stand, and the deceased died intestate.
Distribution on intestacy and exclusion of a child
Having died intestate, the estate devolves equally on the surviving children under section 38; the court cannot exclude a child because of bad blood or the deceased's alleged wishes absent a valid will.
Section 38 of the Law of Succession Act applies where an intestate leaves surviving children but no spouse, mandating equal division among the surviving children. The respondent's conduct, including the alleged attempt to kill the deceased and failure to contribute to funeral expenses, does not provide a lawful ground for exclusion. Exclusion is only possible where stated in a valid will, which was not established. The trial judge's equal distribution was therefore affirmed.
Standard of determination on a first appeal
A first appeal is by way of retrial; the Court of Appeal must reconsider and evaluate the evidence and draw its own conclusions, making allowance for not having seen or heard the witnesses.
The court adopted the classic principles in Selle v Association of Motor Boat Co. of Kenya, restating that the Court of Appeal is not bound by the trial judge's findings of fact where he failed to take account of particular circumstances or probabilities or where the impression of a witness's demeanor is inconsistent with the evidence generally. This frames the court's power of review on a first appeal.
Legal principles established
#- An oral will is invalid where the testator does not die within three months of making it, as required by section 9(1)(b) of the Law of Succession Act.
- Where an intestate leaves children but no spouse, the net intestate estate is divided equally among the surviving children under section 38 of the Law of Succession Act, and the law does not permit exclusion of a child for familial estrangement absent a valid will.
Court orders
#- 1.The appeal is dismissed with no order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Succession Cause No. 1106 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Law of Succession Act / appellate jurisdiction of the Court of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dr. Symon Wairagu Githae v Albert Njeru Githae", Case Analysis (2019). Civil Appeal No. 146 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/290/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.