Lita Violet Shepard v Agnes Nyambura Munga [2018] eKLR

REPUBLIC OF KENYA

THE COURT OF APPEAL

AT NAIROBI

(CORAM: WAKI, WARSAME & MURGOR, JJ.A)

CIVIL APPEAL NO. 91 OF 2017

BETWEEN

LITA VIOLET SHEPARD.................................................APPELLANT

AND

AGNES NYAMBURA MUNGA.....................................RESPONDENT

(An appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Musyoka, J.) dated 25th September, 2015

in

Succession Cause No. 1327 of 2010)

*************************

JUDGMENT OF THE COURT

1. LITA VIOLET SHEPARD, (the appellant) brought this appeal against the ruling and order of the High Court of Kenya at
Nairobi (Hon. Mr. Justice W. Musyoka) delivered on the 25th September, 2015 dismissing the application for review of the
judgment by Hon. Mr. Justice L. Kimaru delivered on the 5th April, 2014. The said application for review had been filed by the
appellant against AGNES NYAMBURA MUNGA, (the respondent).

2. Briefly the facts of this matter are that, the respondent by an application brought under Section 26 of the Law of Succession
Act, sought provision as a dependant of the estate of the late BRYAN WALTER SHEPARD (the deceased). The deceased died on
the 29th March, 2010 as a result of a plane crash. The deceased died testate having left behind a Will he executed on the 29th
January, 1999. Under the said Will the deceased appointed the appellant, who was his wife, as the executor of the Will and
bequeathed all his property to the appellant and their daughter, Jeneatte Dorothy Labonte.

3. The appellant, as executor of the Will, petitioned the court for grant of probate of the deceased’s estate. The respondent upon
learning of this petition by the appellant filed an objection thereto. Contemporaneously with filing the objection, the respondent
filed an application under Section 26 of the Law of Succession Act (the Act) under which he sought to be provided for by the estate

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 Lita Violet Shepard v Agnes Nyambura Munga [2018] eKLR

of the deceased as a dependant thereto. In the affidavit in support of the application the respondent deposed that she was a common
law wife of the deceased having been married under the Kikuyu Customary Law. The respondent contended that before the demise
of the deceased she was his dependant within the meaning of Section 29 of the Act. The respondent further contended that she had
cohabited with the deceased for 20 years prior to his death and that the deceased used to cater for all her financial needs. She
deposed that the estate of the deceased was worth approximately KShs.1,000,000,000/= and stated that she did not know why the
deceased did not provide for her under the Will.

4. The appellant swore a replying affidavit opposing the application and denied that the deceased was cohabiting with the
respondent at the time of his death and further denied the existence of any marriage between the deceased and the respondent. The
appellant deposed that she was the only dependant of the deceased. She denied that the estate of the deceased was valued at
KShs.1,000,000,000/= as alleged by the respondent. The parties then filed witnesses’ statements in support of their cases and agreed
that the application be disposed of by written submissions. Kimaru J, after considering the application, the affidavits, witness
statements as well as the submissions filed by the parties, ruled that the respondent had satisfactorily established that she was the
wife of the deceased. The learned Judge further held that the respondent was a dependant of the deceased pursuant to Section 29 (a)
of the Act and that she had established that she was entitled to reasonable provision from the net estate of the deceased. The learned
Judge proceeded to order the appellant to make provision for the respondent for the sum of KShs.50,000,000/=. It is this judgment
of Kimaru, J that provoked the appellant to file an application for review of the judgment on the ground that there was a
mistake/error apparent on the face of the judgment because the estate of the deceased was not worth the value attributed to it by the
learned Judge. The said application was heard by Musyoka, J. The appellant contended that most of the assets listed in the Will of
the deceased had been disposed of by the deceased prior to his death and that therefore the estate of the deceased could not afford to
pay the respondent the KShs.50,000,000/= as ordered. Upon hearing the application, the trial Judge dismissed the same on the
grounds that the appellant had failed to demonstrate that there was an error apparent on the face of the judgment.

5. Aggrieved by the ruling, the appellant preferred this appeal against the entire ruling raising nine grounds of appeal in her
memorandum of appeal. Parties filed written submissions in support of their positions and respective counsel highlighted the
submissions before us. The appellant submitted that in dismissing her application for review of the judgment, the learned Judge
ignored her submissions and adopted the view that there was no error apparent on the face of the record to invoke the provisions of
Order 45 Rule 1 of the Civil Procedure Rules. The appellant contended that contrary to the wide unfettered discretion afforded to
the Judge under Order 45, he took a restrictive approach. She contended that while the learned Judge appreciated that provision
should be made from the net estate, he did not bother to first ascertain the net estate before making the award of KShs.50,000,000/=.
She further contended that she opposed and controverted the assertion by the respondent that the estate was valued at
KShs.1,000,000,000/= and that therefore the onus rested on the respondent to prove that the estate was worth that amount. The
appellant argued that contrary to Section 107 of the Evidence Act, Kimaru J, shifted the onus of proving the net worth of the estate
to her. The appellant submitted that in her application for review she adduced evidence to show that the value of the estate of the
deceased was not as high as envisaged by Kimaru, J but Musyoka J, declined to review the judgment after making a finding that
there was no error apparent on the record. She asserted that both judges failed to consider her rebuttal in her replying affidavit in
which she disputed the alleged value of the deceased estate.

6. The appellant submitted that the evidence she tendered proved that the estate of the deceased was not worth
KShs.1,000,000,000/= and this was sufficient reason to review the award of KShs.50,000,000/=. She further submitted that Kimaru,
J erred when he ruled that the provision of KShs.50,000,000/= should exclude the claims made by the respondent against the estate
of the deceased for $500,000/= and a debt of $40,000/= which the respondent had made against the estate of the deceased as the
executor of the estate of William Earl Nelson. She argued that that finding went against Section 26 of the Act which provides that a
provision can only be made from net assets of the estate. She further argued that if the claims against the estate of the deceased were
to succeed, the estate of the deceased would have been diminished further and therefore the Judge erred when he made the provision
for KShs.50,000,000/= without ascertaining and deducting the estate’s liabilities.

7. The appellant contended that the learned Judge ignored the parameters set out in Section 28 of the Act and the Judge did not
bother to ascertain the value of the gifts given by the deceased to the respondent. The appellant while relying on the case of In the

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Estate of James Karanja alias James Koi (Deceased) 2-14 eKLR, further contended that the learned Judge ignored the wishes of
the deceased and re-wrote the Will.

8. On her part the respondent in opposing the appeal submitted that, in the application for review, the appellant took the
position that the court ought to have re-evaluated the evidence tendered in her application to be provided for from the deceased’s
estates. According to the respondent this would have been tantamount to the court sitting on an appeal of its own judgment. The
respondent contended that the application for review was an attempt by the appellant to introduce new evidence to guide the Judge
and that it was on the strength of this new evidence that she has filed the appeal. She further contended that it was incumbent upon
the appellant to demonstrate to the court that there was an error apparent on the face of the record. She asserted that she provided the
court approximate worth of the estate of the deceased; however, the appellant did not give an indication of the value of the estate but
only provided the court with a list of assets that had either been sold or were in the joint names of the appellant and the deceased.

9. The respondent submitted that the appellant was appealing the judgment of Kimaru, J under the guise that she was appealing
against the ruling of Musyoka, J that dismissed her application for review. While placing reliance on Chairman Board of
Governors Highway Secondary School vs William Mmosi Moi [2007] e KLR, the respondent argued that the appellant having
chosen to apply for review of the judgment she cannot appeal once the review is declined.

10. We have considered the record; respective submissions by learned counsels and the authorities cited by learned counsel and
are now at an opportune moment to render our decision. Our mandate on a first appeal is set out in Rule 29 (1) of this Court’s Rules
namely to re-appraise the evidence and to draw inferences of fact. Where the exercise of judicial discretion is involved the exercise
of which is called to our interrogation, we remain guided by the principles enunciated in Selle vs. Associated Motor Boat Company
Ltd [1968] EA 123; that will not interfere unless we are satisfied that the Judge misdirected self in some matter and as a result
arrived at a wrong decision, or that it be manifest from the case as whole that the Judge was clearly wrong in the exercise of
discretion and occasioned injustice by such wrong exercise.

11. We are of the view that there is only one issue and that is whether the learned Judge took into consideration the value of
the estate of the deceased. Section 26 of the Act provides as follows:

Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the
provisions of this Act, then on the application by or on behalf of a dependent, the court may, if it is of the opinion that the
disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or
the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such
reasonable provision as the court thinks fit shall be made for that dependant out of the deceased’s net estate.”

12. Section 28 of the Act provides for factors that a court ought to consider before making an order under section 26 as
follows:

“In considering whether any order should be made under this Part, and if so what order, the court shall have regard to –

(a) The nature and amount of the deceased’s property;

(b) any past, present or future capital or income from any source of the defendant;

(c) the existing and future means and needs of the dependant;

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(d) whether the deceased had made any advancement or other gift to the dependant during his lifetime;

(e) the conduct of the dependant in relation to the deceased;

(f) The situation and circumstances of the deceased’s other

dependants and the beneficiaries under any will;

(g) the general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making
provision for the dependant.”

As can be seen above the nature and extent, that is the value, of the deceased’s property is the first consideration. In fact, in the
ruling by Musyoka J, he notes that the value of the estate is the most significant factor to consider. However, Kimaru, J in rendering
his decision did not consider this critical factor at all. There was no valuation of the estate by a qualified valuer. The learned Judge
did not determine the net worth and did not consider the liabilities against the estate as he ought to have done.

The finding by the learned Judge that the deceased left behind a substantial estate is not backed by any cogent evidence.

13. Under Section 26 and Section 28 of the Act, the trial court was also under a duty to take into account any advancement or
gift made to the respondent during the lifetime of the deceased, before it can decide whether she had been reasonably provided for.
By the respondent’s own admission, the deceased had advanced to her some properties including a house and car during his
lifetime. The learned Judge stated that these gifts made to the respondent were gifts inter vivos, however, given the extent of the
property given to the respondent and the value which was not determined by the court, can it be reasonably said that these were gifts
inter vivos and therefore ought not to be taken into account as provided under Section 26 of the Succession Act"

14. The learned Judge not only imported the word gift inter vivos which was not common ground and which had not been
contended by the respondent, but should have explained why he deemed the gifts given to the respondent were gifts inter vivos as
opposed to being advancement made to the respondent during the lifetime of the deceased as contemplated under Section 28 (d) of
the Act. Further, the learned Judge suo motu said that the gifts given to the respondent were inadequate. This was also imported by
the Judge and it was not common ground, neither was it the contention by the respondent. Therefore, we are of the view that there
was no sufficient material before the trial court to make the determination that the respondent was entitled to KShs.50,000,000/=. It
is not clear how the learned Judge arrived at this figure and why it was awarded to the respondent. The court whilst making
provision for a dependant exercises its discretion, which must however, be exercised judicially taking into account the factors
provided under section 28 of the Act. In the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36, the Supreme Court of India
rendered itself thus on the issue of judicial discretion:

“Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:

“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He s not a knight-errant roaming
at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a
yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide
enough in all conscience is the field of discretion that remains”.”

15. The deceased left a Will under which he bequeathed property to his legal wife. He did not make provision for the
respondent under the Will as a dependant. The respondent contends that she was living with the deceased for 20 years as a
customary wife prior to his death, can it then be said that the omission by the deceased to provide for her under the Will was an

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accidental omission" Or was it that he provided for her during his lifetime and therefore the exclusion was deliberate and was meant
to benefit the other beneficiaries" All these important questions had to be determined before section 26 kicks in.

16. In our understanding, a Will is just a legal tool or device for determining the fate of a deceased person’s estate after his
death. As with every instrument, the court must evaluate it in its natural environment, meaning that primarily the provisions of the
law of succession were taken into consideration at the time it was made. It is when we place the Will in its proper context, that we
will know how to ask the right questions and those questions will guide the answers we give in the event of a dispute. That is the
starting point. Again to put the Will into a proper perspective, it is important to appreciate that the deceased had provided for the
respondent during his liftetime and the legal wife after death. The sequence is a reflection of the natural environment of providing,
for the heart (alleged customary wife) and mind (the legal wife) is the context and contours of what trial Judge was required to
appreciate and determine. Unfortunately the maps and compass were not looked at by the trial court. The trial court was not required
to look at the Will as a standalone piece of document without giving much or no attention to the circumstances of the whole dispute.
The Will read together with the undisputed conduct of the deceased in first distributing portions of the property to the respondent,
constitute a single project of harmonious and integral transaction, which provided for both sides of the coin – a reflection of what
the deceased intended.

17. The decision to award the respondent KShs.50,000,000/= was therefore, not based on concrete evidence or did not result
from a reasonable inference which could not be displaced by any other evidence. The decision was not based on an objective
analysis of the disputes, and the facts available before the trial court could not lead to the conclusion and the only conclusion that
the respondent was a dependant as a result of a customary marriage. And the question for us is whether the trial court was entitled to
disregard the intention of the testator. With greatest respect to the learned Judge, it can be said that his decision was arbitrary,
unreasonable and had no legal or factual basis. The learned Judge did not consider the clear provisions of section 26 which he was
to apply, i.e. the liabilities of the estate, determine the value of the estate, and consider the gifts made to the respondent during the
lifetime of the deceased. All these were pertinent and important questions. There was therefore a total misapprehension and
misapplication of section 26.

18. These were the issues that were set before Musyoka, J in the application dated the 9th September, 2014. The appellant was
entitled to make the application for review in view of the clear misapprehension of Section 26 and Musyoka, J was obligated to
address his mind to the clear issues captured in error by Kimaru, J. These were errors and mistakes committed on the face of the
judgment and Musyoka, J casually dismissed the grievances of the appellant. Had Musyoka, J addressed his meticulous judicial
mind, he would have arrived at the same conclusion as herein. The issues raised by the appellant were errors on the face of the
judgment rendered by Kimaru, J. With profound respect Musyoka, J ignored the cry of the appellant for justice which was loud and
clear. Again with respect to the learned Judge, there is merit in the grounds of appeal and the submissions made by Mr. Singh
learned counsel for the appellant which can only lead to the conclusion that this appeal should be allowed with the consequence that
the ruling of Musyoka, J delivered on 25th September, 2015 and the judgment by Kimaru, J delivered on 5th April, 2014 are set
aside and substituted with an order, dismissing the judgment of Kimaru, J. delivered on 5th April, 2014 which triggered the present
appeal. The appellant shall have the costs of this appeal and in the High Court.

Dated and Delivered at Nairobi this 9th day of November, 2018.

P. N. WAKI

………………………..

JUDGE OF APPEAL

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 Lita Violet Shepard v Agnes Nyambura Munga [2018] eKLR

M. WARSAME

………………………..

JUDGE OF APPEAL

A. K. MURGOR

………………………..

JUDGE OF APPEAL

I certify that this is the

True copy of the original.

DEPUTY REGISTRAR

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