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Court of AppealAllowedCivil Appeal arising from Succession Cause No. 336 of 2020

Kiragu & 2 others v Kiragu & 7 others (Civil Appeal E471 of 2021) [2024] KECA 1600 (KLR)

Court of Appeal of Kenya
8 November 2024
DMD. K. MusingaASAsike-MakhandiaALAli-Aroni
7,079 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that executors can manage an estate from the date of death, even while a will is being challenged.

What this practically means

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Executive summary

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This Court of Appeal judgment concerned a ruling by the High Court (Mutuku, J.) in Succession Cause No. 336 of 2020, the estate of Lawrence Nginyo Kariuki, who died testate in February 2020. On an application by Brenda Nyambura Kiragu under sections 34, 45, 47 and 83 of the Law of Succession Act, the High Court found that the executors named in the deceased's 2014 Will had intermeddled with the estate by, among other things, withdrawing Kshs.1,158,000 from the deceased's bank account and dealing with estate property without a grant. It restrained further interference, directed the executors to account, and ordered a forensic audit. On appeal, the Court framed the single decisive question as whether the finding of intermeddling was correct, since the forensic audit order rode on it. Reading sections 79 and 80(1) of the Act together, the Court held that a testate deceased's property vests in executors from the date of death and that a grant of probate merely authenticates intermediate acts of executors. Executors derive their authority from the Will itself, not from the grant, and the pendency of objections challenging the Will did not suspend that authority; the Will remained valid until a court determined otherwise. Adopting Gikonyo, J.'s definition in Benson Mutuma Muriungi, the Court held that intermeddling entails dealing with an estate without lawful authority in a manner that diminishes it. The executors' acts were done in good faith and consistent with their duties, so no intermeddling was established. The restraining and forensic audit orders were therefore premature and unfounded. The appeal was allowed, the ruling and orders of 27th July 2021 were set aside, and each party was directed to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the trial court made the correct finding that the executors of the estate of the deceased had intermeddled with it to warrant the restraining orders
  2. 2.Whether the trial court was right in ordering a forensic audit of the deceased's estate since his demise

Key legal issues

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01

Whether executors whose authority under a challenged Will may deal with the estate pending determination of objections

Holding

Yes. Property vests in executors from the date of death under sections 79 and 80(1); the Will remains valid until a court determines otherwise, and executors need no court authority in the interim.

Reasoning

Reading sections 79 and 80(1) together, the Court held a Will takes effect on death and the grant of probate merely authenticates intermediate acts of executors. The pending objections challenging the Will did not suspend the executors' authority; the trial court erred in requiring executors to seek court authority while the validity issues were pending.

p. 11
02

What constitutes intermeddling under section 45 of the Law of Succession Act

Holding

Intermeddling requires dealing with the estate without lawful authority in a manner that diminishes or puts the estate at risk; the acts complained of, done in good faith for the estate's benefit, did not amount to intermeddling.

Reasoning

The Court adopted Gikonyo, J.'s definition in Benson Mutuma Muriungi, including any act which dissipates, diminishes or puts at risk the free property of the deceased. The withdrawal of Kshs.1,158,000 was explained as funding the Kiambu Project initiated by the deceased in his lifetime; no ulterior motive or bad faith was demonstrated by the objector.

p. 11
03

Whether the restraining order and forensic audit order were justified

Holding

No. Both orders were premature and not based on any proved facts once the finding of intermeddling fell away.

Reasoning

Since the executors acted within their authority, the foundational finding of intermeddling was erroneous, and the restraining order and forensic audit order premised on it could not stand. Executors are bound to render a full and accurate inventory and account within six months of the grant and at completion, leaving no room for adverse dealing to go unnoticed.

p. 12

Legal principles established

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  • Executors derive their authority from the Will itself, not from the grant of probate, and may deal with the estate from the date of death even where the validity of the Will is challenged, unless and until the Will is invalidated.
  • Intermeddling occurs where a person deals with a deceased's estate without lawful authority and in a manner that diminishes the estate; acts done in good faith consistent with an executor's duties are not intermeddling.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling and orders of the trial court dated 27th July 2021 set aside
  3. 3.Each party to bear its own costs

The bench

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

DM
majority

Wrote the judgment

AS
majority

Wrote the judgment

AL
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 336 of 2020
Jurisdiction invoked
First appellate jurisdiction under the Law of Succession Act and the Court of Appeal's appellate jurisdiction over High Court succession rulings

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 executors did not need the authority of the court to deal with the deceased's estate since their authority is derived from the Will itself and not from a grant of probate.
p. 11Executor's authority derives from the Will
intermeddling occurs where administrators or any person interested in the estate of a deceased person as a beneficiary or otherwise, deals with the said estate without any lawful authority and in a manner as to diminish such an estate.
p. 10Definition of intermeddling
the acts by the executors were not acts performed in bad faith, neither can the said acts be said to have been in contravention of the Act for them to amount to intermeddling.
p. 11Good-faith executor acts are not intermeddling
Accordingly, we allow the appeal and set aside the ruling and orders of the trial court dated 27th July 2021.
p. 12Final orders - appeal allowed and trial ruling set aside
we direct that each party bears its own costs.
p. 12Costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kiragu & 2 others v Kiragu & 7 others (Civil Appeal E471 of 2021) [2024] KECA 1600 (KLR)", Case Analysis (2024). Civil Appeal arising from Succession Cause No. 336 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1600/eng@2024-11-08

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