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Court of AppealDismissedSuccession Appeal from Succession Cause No. 300 of 2013

Kagina v Kagina & 2 others (Civil Appeal 21 of 2017) [2021] KECA 242 (KLR)

Court of Appeal of Kenya
3 December 2021
RNR. N. NambuyeWKW. KaranjaAMA. K. Murgor
7,487 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that property a deceased person gave away while alive is not part of the estate, even if the transfer was never finished.

What this practically means

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Executive summary

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This is a first appeal against the ruling of J. M. Mativo, J. dated 20th September 2016 in Succession Cause No. 300 of 2013, dismissing a co-administrator's application alleging that his co-administrators had fraudulently intermeddled with numerous parcels of land and a motor vehicle belonging to the deceased's estate. The appellant contended the transfers occurred after the deceased's death and were founded on forged sale agreements, supporting his case with a forensic document examiner's report. The respondents maintained the deceased had given out or sold the properties during his lifetime. The Court of Appeal affirmed the trial Judge on every ground. It confirmed jurisdiction under section 47 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules. It endorsed the position that a deceased person may divest property during his lifetime by gifts inter vivos, whether perfect or imperfect, and that incomplete transfers do not amount to intermeddling under section 45(1). It held the expert opinion was not binding, that the examiner failed to prove his credentials, and that his forgery findings were contradicted by the appellant's own witnesses (the Land Registrar and Adjudication Officer). It reiterated that fraud must be strictly proved to a standard above balance of probabilities. The bias complaint failed for want of particulars. The appeal was dismissed with no order as to costs, the parties being members of one family.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court was properly seized of jurisdiction under section 47 of the Law of Succession Act and Rules 73 and 49 of the Probate and Administration Rules
  2. 2.Whether the trial Judge misapplied the law on intermeddling under section 45(1) of the Law of Succession Act and gifts inter vivos
  3. 3.Whether the Judge erred in discounting the forensic document examiner's report in the absence of contrary expert opinion
  4. 4.Whether the Judge ignored or failed to consider the appellant's evidence
  5. 5.Whether the Judge exhibited bias against the appellant

Key legal issues

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01

Jurisdiction of the High Court over succession disputes

Holding

The High Court was properly seized of the application under section 47 of the Law of Succession Act and Rules 73 and 49 of the Probate and Administration Rules

Reasoning

Section 47 donates power to the High Court to determine disputes under the Act; Rule 73 confers inherent power for the ends of justice; Rule 49 governs presentation of applications for which no other provision is made. The Court affirmed the trial Judge's conclusion on jurisdiction.

p. 8
02

Intermeddling and gifts inter vivos

Holding

Transactions divesting property during the deceased's lifetime, whether complete or incomplete, do not amount to intermeddling; gifts inter vivos are protected under the Law of Succession Act

Reasoning

The Court agreed with the trial Judge's application of section 45(1) and the Gitau vs. Wandai threshold: property given out by the deceased during his lifetime, whether by sale or gift, does not form part of the distributable estate, and incomplete transfers may be perfected by the grant holder or sanctioned by the court.

p. 8
03

Expert evidence – qualification and weight

Holding

An expert's opinion is not binding on the court; the expert must prove credentials and the underlying facts; unqualified or contradicted expert testimony may be rejected even without contrary expert opinion

Reasoning

The forensic document examiner failed to tender proof of his qualifications, and his opinion that signatures were forged was contradicted by the Land Registrar and the Adjudication Officer called by the appellant himself. The court may reject expert evidence where it is not founded on a substratum of proved facts.

p. 9
04

Standard of proof for fraud

Holding

Allegations of fraud must be strictly proved to a standard higher than the balance of probabilities but below beyond reasonable doubt

Reasoning

Relying on Central Kenya Ltd vs. Trust Bank and related authorities, the Court endorsed the trial Judge's finding that the appellant neither pleaded particulars of fraud with sufficient clarity nor proved the alleged fraud to the required heightened standard.

p. 6
05

Alleged judicial bias

Holding

A party alleging bias must give instances and particulars; the court then tests the allegation against the 'real danger' threshold. The appellant's bare complaint failed

Reasoning

The Court adopted the Standard Chartered Financial Services parameters, including the test that the court determine whether there is a real danger the judge might have unfairly favoured one party. The appellant provided no particulars, and the record showed the Judge balanced the parties' cases properly.

p. 12
06

First appeal – appellate court's mandate on facts

Holding

A first appellate court must reassess the evidence and reach its own conclusions but will not lightly differ from the trial Judge's findings of fact

Reasoning

Citing Selle vs. Associated Motor Boat Company and Jabane vs. Olenja, the Court restated that it has neither seen nor heard the witnesses and should interfere with factual findings only where they are based on no evidence or the Judge is plainly wrong.

p. 9

Legal principles established

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  • An expert witness must demonstrate proof of credentials; mere assertion of expertise is insufficient and unqualified expert testimony may be excluded
  • A complaint of judicial bias must be supported by instances or particulars; a mere allegation without particulars cannot succeed
  • A deceased person has capacity to divest himself of property during his lifetime by gifts inter vivos, whether perfect or imperfect; lack of completion of transfer does not of itself invalidate the gift

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RN
majority
WK
majority
AM
majority
On appeal from
High Court of Kenya
Succession Cause No. 300 of 2013
Jurisdiction invoked
Sections 47 and 48 of the Law of Succession Act, Cap 160; Rules 73 and 49 of the Probate and Administration Rules

Relief refused

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Allowance of the appeal and setting aside of the impugned ruling with substitution of orders allowing the appellant's application in its entirety

No sufficient justification to interfere with the learned Judge's exercise of discretion; expert evidence failed the qualification test and was contradicted by the appellant's own witnesses; no particulars of bias were given

p. 12

Costs

As parties are members of one family, we make no order as to costs.

Quotable passages

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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 upshot is that this appeal has no merit and is therefore dismissed.
p. 12Disposition – appeal dismissed
As parties are members of one family, we make no order as to costs.
p. 12Costs order
The position in law is that it was not suficient for the witness to merely assert that he was an expert. It was not only imperative to the witness but he was also obligated to show proof of the source and extent of his expertise, a test the appellant's witness failed to satisfy.
p. 11Expert evidence – qualification
lack of completion of the process of transfer does not of itself render the gift inter vivos invalid. It can be perfected by the grant holder if there is no contest over it, or alternatively sanctioned by a court where proven.
p. 8Gifts inter vivos and intermeddling
Herein, all that we have before us and on the basis of which the appellant has invited us to vindicate him is a mere complaint. No instances or particulars of the alleged bias were given by the appellant.
p. 12Bias – need for particulars
This being a first appeal to this court, is to reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect....
p. 7First appeal mandate

Issues in the judgment

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minor

The judgment describes the appeal as one in which 'There was no appearance for the firm of Mulwa Isika on record for the respondents', yet portions of the judgment recite 'the respondents' assertions' as if contested – the appeal was effectively undefended/unopposed

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kagina v Kagina & 2 others (Civil Appeal 21 of 2017) [2021] KECA 242 (KLR)", Case Analysis (2021). Succession Appeal from Succession Cause No. 300 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/242/eng@2021-12-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.