Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCourt of Appeal Civil Appeal (Mombasa)· [2023] KECA 1224 (KLR)

Kowalczyk v Kolii (Civil Appeal E004 of 2021) [2023] KECA 1224 (KLR)

Court of Appeal of Kenya
6 October 2023
SKS. Gatembu KairuPNP. NyamweyaGOG. V. Odunga
3,327 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that a son excluded from his father's will got nothing because he failed to prove his needs, means, or income.

What this practically means

#

Executive summary

#
The appellant, sole son of the late Peter Walter Kowalczyk, was excluded from his father's will, which bequeathed the entire estate to the widow, the respondent, as sole executrix. A grant of probate issued in 2016, and in 2019 the appellant applied under sections 26 to 29 of the Law of Succession Act for reasonable provision as a dependant, plus accounts of the deceased's bank and pension assets. Thande, J dismissed the application, holding the appellant a presumed dependant under section 29(a) but finding that the deceased had valid reasons for exclusion: a judgment in HCCC No 346 of 1998 found the appellant had connived in impersonating the deceased to reduce the deceased's share of a plot from half to a third. The Judge also found the appellant had disclosed none of his needs, means, capital or income as required by section 28, and that redistributing the estate would rewrite the will. The Court of Appeal dismissed the appeal. Applying the stricter appellate criteria for disturbing discretionary decisions, the Court held the appellant must, beyond presumed dependency, prove the section 28 factors; his conduct and the testator's stated reasons were legitimate considerations, and the deceased's testamentary freedom under section 5, though to be exercised responsibly, was not shown to have been abused. The Court found no error of law or principle and affirmed the decision below, dismissing the appeal with no order as to costs, noting the Court's duty to promote reconciliation in family disputes.

Key legal issues

#
01

Whether a dependant excluded from a will is entitled to reasonable provision under sections 26 to 29 of the Law of Succession Act despite the testator's testamentary freedom

Holding

Testamentary freedom is not absolute; a dependant may seek reasonable provision, but the court retains complete discretion under section 27 and, where the testator had valid reasons for exclusion and the dependant fails to prove the section 28 factors, no provision will be ordered

Reasoning

Section 26 empowers the court to order reasonable provision for a dependant where the disposition of the estate does not make such provision. The appellant, as son, was presumed a dependant under section 29(a), but the order under section 27 is discretionary and guided by section 28 factors, including the dependant's conduct, needs, means, income and the testator's reasons for exclusion. The deceased expressly stated his reasons in the will, corroborated by the finding in HCCC No 346 of 1998 of impersonation and fraudulent transfer. Redistribution would amount to rewriting the will.

p. 6
02

The standard for interfering with a trial court's exercise of discretion on appeal

Holding

An appellate court will not interfere merely because it would have decided differently; the appellant must show an error of law or principle, taking into account of irrelevant considerations, failure to take account of relevant considerations, or that the decision is plainly wrong

Reasoning

Relying on Apungu Arthur Kibira v IEBC, Kacem v Bashir, Price & Another v Hilder and Kiriisa v Attorney-General, the Court held that discretion must be exercised judiciously and appellate interference requires stricter criteria than a general appeal. The learned Judge took into account relevant considerations and addressed the law correctly, so her decision could not be faulted.

p. 6
03

The duty of a dependant claiming reasonable provision to place material before the court on his needs and means

Holding

A dependant claiming reasonable provision must place before the court evidence of his occupation, existing and future needs, and past, present or future capital or income from any source; failure to do so is fatal to the claim

Reasoning

The learned Judge found, and the Court of Appeal agreed, that the appellant did not state in his affidavit what he did for a living, his existing and future needs, or any capital or income received or expected. He did not challenge that finding on appeal. Without such material the court cannot make a sensible order under section 28, even assuming the deceased had given no reasons for exclusion.

p. 6

Legal principles established

#
  • A son of the deceased falls under section 29(a) of the Law of Succession Act and need not prove dependency, but must still prove the section 28 factors to obtain reasonable provision
  • An appellate court will not interfere with a trial court's exercise of discretion absent an error of law or principle, relevant considerations being ignored or irrelevant ones taken into account, or a plainly wrong decision
  • A testator enjoys unfettered testamentary freedom under section 5 of the Act, and the court will not rewrite a will where the testator had valid reasons for excluding a dependant
  • On a first appeal, the Court of Appeal re-evaluates the evidence and draws its own conclusions while allowing for the trial court's advantage of hearing the witnesses

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.No order as to costs

Authorities

#

Legislation

  • Law of Succession Actsection 26
  • Law of Succession Actsection 27
  • Law of Succession Actsection 28
  • Law of Succession Actsection 28(e)
  • Law of Succession Actsection 28(g)
  • Law of Succession Actsection 29(a)
  • Law of Succession Actsection 5

Cases cited (7)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR
  • Apungu Arthur Kibira v Independent Electoral & Boundaries Commission & 3 Others
    (2019) eKLR
  • Kacem v Bashir
    (2010) NZSC 112; (2011) 2 IVZLR 1
  • Price & Another v Hilder
    [1986] KLR 95
  • Kiriisa v Attorney-General and Another
    [1990-1994] EA 258
  • Elizabeth Kamene Ndolo v George Matata Ndolo
    [1996] eKLR
On appeal from
High Court of Kenya
Succession cause (ruling of Thande, J delivered January 17, 2020); specific cause number not stated
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statute not specifically cited in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kowalczyk v Kolii (Civil Appeal E004 of 2021) [2023] KECA 1224 (KLR)", Case Analysis (2023). Court of Appeal Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1224/eng@2023-10-06

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