GPR3/146279/2023

QUESTION 1(A)

In Lita Violet Shepard v Agnes Nyambura Munga Civil Appeal No. 91 of 2017, Lita Violet
Shepard, the deceased’s wife, appealed against the ruling of the High Court which dismissed her
application for review of an earlier judgment. The initial judgment had ordered the appellant to
make provision for Agnes Nyambura Munga, who claimed to be the deceased's common law
wife and a dependant from the deceased's estate.

Bryan Walter Shepard, the deceased, died testate, leaving his property to his wife (the appellant)
and their daughter. The respondent filed an application under Section 26 of the Law of
Succession Act, seeking provision as a dependant claiming to be the deceased's common law
wife and having been financially supported by him for 20 years. She estimated the estate's value
at approximately KShs. 1,000,000,000. The appellant denied the marriage, cohabitation, the
respondent's dependency, and the estate's value.

Hon. Mr. Justice L. Kimaru determined that the respondent had established she was the
deceased's wife and a dependant under Section 29(a) of the Law of Succession Act. He found her
entitled to reasonable provision and ordered the appellant to pay her KShs. 50,000,000 from the
estate.

The appellant sought a review of this judgment before Musyoka, J., arguing there was an error
regarding the estate's true value therefore the sum of money was unsustainable. Musyoka, J.
dismissed the review application, stating the appellant failed to demonstrate an error apparent on
the face of the judgment.

The appellant then appealed to the Court of Appeal arguing that both High Court judges failed to
properly ascertain the net value of the deceased's estate before making or refusing to review the
award.

The Court of Appeal found that Hon. Mr. Justice L. Kimaru. failed to consider the value of the
estate and the liabilities against it as required by Sections 26 and 28 of the Law of Succession
Act which provides for dependants not adequately provided for by will or on intestacy and
circumstances to be taken into account by court in making order respectively.

There was no valuation and the finding that the estate was "substantial" was not supported by
evidence. The court also found error in the judge's treatment of gifts the deceased made to the
respondent during his lifetime, noting the judge imported the term "gifts inter vivos" without
basis and failed to consider them as potential advancements under Section 28(d) of the Law of
Succession Act. The Court of Appeal stated it was unclear how the KShs. 50,000,000 figure was
reached without sufficient material and proper consideration of the factors provided for under
Section 28.

The Court of Appeal concluded that the issues raised by the appellant regarding the
misapprehension and misapplication of Section 26 by Hon. Mr. Justice L. Kimaru were errors
apparent on the face of the judgment. They found that Musyoka, J. erred by dismissing the
review application and failing to address these clear errors.

The gist of the Court of Appeal's decision is that the High Court judges erred by failing to
properly ascertain and consider the value of the net estate and gifts made during the deceased's
lifetime when determining whether the respondent was entitled to provision and the amount of
such provision under Sections 26 and 28 of the Law of Succession Act. This failure constituted
errors apparent on the face of the initial judgment, which should have been reviewed.

QUESTION 1(B)

The Law of Succession Act requires the court to consider the nature and amount of the
deceased’s property when determining if and how to make reasonable provision for a dependant
as provided for under Section 28(a).

Land economists and valuers are needed to professionally determine the true value of the estate's
assets and potentially its liabilities thus their valuation provides the cogent evidence that the
court requires to assess the estate's value. Without such expert input, the court lacks the
necessary factual basis to make a non-arbitrary decision on the amount of provision as illustrated
in the Lita Violet Shepard v Agnes Nyambura Munga case that failure to consider a proper
valuation leads to an error in applying the law

Therefore, their role is crucial for the court to properly apply the statutory requirements of the
Law of Succession Act by establishing the quantifiable value of the estate from which any
provision would be made.

QUESTION 2(A)

The variables distinguishing categories of dependants according to the Law of Succession Act as
interpreted in the judgment include:

 Nature of the relationship to the deceased, Section 29 of Law of Succession Act

categorizes potential dependants based on their relationship to the deceased.
  Financial maintenance by the deceased immediately prior to death, for spouses and
children, this is not a requirement for dependant status but as for other relatives as listed
in Section 29(b) is a mandatory requirement.
 Destitution, while the High Court in the original decision wrongly considered destitution
as a necessary condition for a dependant to seek reasonable provisional the Court of
Appeal noted that this requirement is not incorporated in the Law of Succession Act as a
limitation. Therefore, not being destitute does not by itself disqualify a dependant under
Section 29(a) from seeking reasonable provision from the estate.

QUESTION 2B

The Court of Appeal judges, Akiwumi and Shah JJ.A., determined that the 4th and 5th
respondents, who were the deceased's grandchildren, were not entitled to seek reasonable
provision from the estate because they did not qualify as "dependants" under section 29(b) of the
Law of Succession Act. The judges found that the evidence did not show the deceased was
maintaining them instead, their mother was maintaining them from income derived from land the
deceased had provided to her. Simply providing land to their mother did not mean the deceased
was maintaining the grandchildren for the purposes of section 29(b). They also noted that, unlike
section 33 of the Act which deals with intestacy, section 29(b) is not qualified by considerations
of cultural or customary law regarding maintenance obligations.

Furthermore, the judges concluded that the other respondents had not demonstrated that they
were not reasonably provided for in the deceased will as required by section 26. When
considering applications for reasonable provision, the court must regard factors provided for
under Section 28 of the Law of Succession Act. The judges found that the first respondent had
significant assets and income from his life in Australia and received a substantial bequest despite
a strained relationship with the deceased. The second respondent failed to provide evidence of
his needs and the testator's decision to leave property in trust for Peter's family likely reflected
concerns about Peter's habits. The judges emphasized that the respondents' motivation appeared
to be obtaining an equal share of the estate based on the concept of houses in a polygamous
family rather than seeking reasonable provision based on their needs, and that the court's power
under section 26 is limited to ensuring reasonable provision not re-writing the will to achieve
perceived equality.

Regarding the relevance of African customary law to applications for reasonable provision under
a will, the judges determined that it was generally not applicable under sections 26 to 29 of the
Law of Succession Act. While the Judicature Act allows courts to be guided by customary law
where it is applicable and not inconsistent with written law, the Court found that sections 26 to
29 are intended to operate independently of customary distribution principles. They highlighted
that the Act incorporates customary law in other parts such as section 33 concerning certain
intestacies and section 40 regarding the distribution in polygamous intestacies based on the
number of houses but notably omits such qualifications in sections 26 to 29 of the Act.
Therefore, relying on customary concepts like equal sharing among polygamous houses as the
basis for an application for reasonable provision under a valid will was deemed inconsistent with
the Act.