Wanja & another v M'Itunga
The bottom line
#Kenya's Court of Appeal confirmed that a valid will controls how property is shared, even unequally, unless dependants were left without reasonable provision.
What this practically means
#Executive summary
#Key legal issues
#Extent of a court's power to interfere with testamentary disposition
A court can only interfere with testamentary freedom where the testator has failed to make reasonable provision for dependants under section 26 of the Law of Succession Act.
Section 5 of the Law of Succession Act confers on a testator of sound mind the power to dispose of property by will as he deems fit, including giving unequal shares or leaving the estate to charity. The only judicial check is section 26, permitting intervention on application where reasonable provision for dependants is lacking. Redistributing a valid will as if on intestacy mocks the deceased's free will.
Whether unequal distribution amounts to discrimination
Unequal distribution is not tantamount to discrimination; the test is whether reasonable provision was made, not whether the testator acted unreasonably.
Relying on John Gitata Mwangi and the testator's freedom under section 5, the court held that the question is whether the will made reasonable provision, not whether the deceased should have made larger provision. A court cannot step into the shoes of the testator and substitute its own view of a fair distribution.
Whether a court may determine an unpleaded issue suo moto
A court cannot raise and determine an issue not raised in the pleadings; doing so denies parties an opportunity to respond and is a reversible error.
In an adversarial system parties set the agenda and are bound by their pleadings. The trial judge raised the discrimination issue suo moto, was 'perturbed', and determined the will invalid on that basis without amendment or notice, denying a party the chance to respond. Citing Ole Tukai and Mutinda Mule, this exceeded the judge's mandate.
Legal principles established
#- A testator has testamentary freedom to distribute property as he deems fit, including unequally among children; a court may interfere only where reasonable provision for dependants has not been made.
- Unequal distribution in a will is not, of itself, discrimination.
- A trial court may not determine a case on issues not raised in the pleadings; doing so is a reversible error.
Court orders
#- 1.The appeal is allowed
- 2.The judgment of Gikonyo, J. dated December 13, 2018 is set aside
- 3.The estate of the deceased be distributed in accordance with the deceased's written Will dated February 22, 2012
- 4.Each party shall bear his/her own costs
- On appeal from
- High Court of Kenya at Meru
- Succession Cause No. 46 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Law of Succession Act / Court of Appeal jurisdiction (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanja & another v M'Itunga", Case Analysis (2022). Civil Appeal 100 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/727/eng@2022-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.