Kariuki v Kiore & 4 others
The bottom line
#Kenya's Court of Appeal upheld a decision invalidating a Will for being vague and procured by undue influence, but ordered the related succession cases to be heard separately.
What this practically means
#Executive summary
#Key legal issues
#Whether determination of a Will's validity by affidavit evidence and written submissions, without cross-examination, is lawful
It is lawful and raises no jurisdictional issue; it is a procedural matter anchored in Order 19 of the Civil Procedure Rules, and cross-examination must be sought by a party on proper foundation.
The Court held that proving facts by affidavit is anchored in Order 19 of the Civil Procedure Rules, which permits any court, for sufficient reason, to allow proof by affidavit. Cross-examination of a deponent is discretionary and available at the instance of a party who lays a proper legal foundation. Here the parties consented to written submissions, so the appellant could not complain of the procedure she agreed to. However, in contested issues dependent on oral evidence, good practice favours viva voce evidence.
Whether the trial court erred in invalidating the Will
No. The Will was general, grossly lacking in specificity, had no schedule of property, cited an incorrect passport number, and the trial court's findings on capacity and undue influence were not shown to be based on no evidence or wrong principles.
Applying the Mkube v Nyamuro principles, the Court re-evaluated the evidence under Rule 29(1)(a) of its Rules but found it difficult to depart from the learned Judge's findings. The Will lacked a schedule of property and did not adequately describe the 'foreign Estate' bequeathed, leaving unclear whether litigated and jointly-owned property was covered. The trial court's conclusion that the Will was procured by undue influence was affirmed, and the appeal failed on validity.
Whether consolidation of the two succession causes was proper
The consolidation was erroneous; the causes had different parties and different claims (testacy versus intestacy) and ought to have been heard separately.
Although consolidation may have appeared efficacious, the two causes were different: the parties were different, one cause proceeded on intestacy and the other on a Will, and the claims differed (a purchaser's beneficial interest versus beneficial entitlement to the whole parcel). The Court directed that the causes be heard separately before a judge with jurisdiction other than Kimaru J.
Legal principles established
#- Conducting succession proceedings by way of affidavit evidence rather than viva voce evidence raises no jurisdictional issue; it is purely procedural, and cross-examination of a deponent is available only at the instance of a party who lays a proper foundation.
- Leave to cross-examine a deponent is not a matter of right; the applicant must lay a proper legal foundation justifying the cross-examination.
- An appellate court will not interfere with findings of fact by a trial court unless they are based on no evidence, on a misapprehension of the evidence, or the judge acted on wrong principles.
- Parties cannot confer jurisdiction on a court by consent where none exists, but consenting to a procedural mode of hearing binds them to its repercussions.
- Succession causes involving different parties and different claims (testate versus intestate, beneficiary versus purchaser's interest) ought to be heard separately rather than consolidated.
Court orders
#- 1.The appeal is dismissed with costs to the 1st, 2nd and 3rd respondents
- 2.The two succession causes are remitted to the Family Division of the High Court to be heard separately before any Judge with jurisdiction, other than Kimaru J.
- On appeal from
- High Court of Kenya (Probate and Succession Court) at Nairobi
- Succession Cause No. 1788 of 2009
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Rule 29(1)(a) of the Court of Appeal Rules invoked for re-evaluation of evidence)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nakumatt Holdings Limited v Board of Trustees National Social Security Fund & another[2023] KEELC 17858 (KLR)8 Jun 2023
Cite this brief
#Cite this brief
Caselaw, "Kariuki v Kiore & 4 others", Case Analysis (2022). Civil Appeal 171 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/864/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.