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Court of AppealPartially AllowedCourt of Appeal Civil Appeal (Succession) — memorandum of appeal containing 43 grounds (exact appeal number not stated in judgment)

Koinange (Suing as legal representative of the Late Dr. Wilfred Koinange and also in her own personal capacity) & 5 others v Karanja & 2 others (Civil Appeal 126 of 2016) [2017] KECA 102 (KLR)

Court of Appeal of Kenya
15 December 2017
10,384 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled the Koinange patriarch died without a valid will, so his estate — including disputed company shares — will be divided under Kenyan succession law.

What this practically means

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Executive summary

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This Court of Appeal judgment (Waki, Asike-Makhandia and Ouko, JJ.A) determined a first appeal arising from a Ruling of Kimaru, J. of 22nd January 2015 in the long-running succession cause over the vast estate of Charles Karuga Koinange, who died on 20th February 2004. The appeal was brought by Rosemary Koinange (widow and legal representative of the eldest son, Dr. Wilfred Karuga Koinange) together with CKK Estates (1973) Ltd and other companies and shareholders. The court addressed three issues: the propriety of the trial court's procedure, whether the deceased died testate or intestate, and whether the shares in CKK Estates formed part of the estate. The court held that the trial court's procedure was untidy and improper — Rule 73's inherent powers could not justify becoming 'a bull in a china shop' — but the consent of 27th February 2014 validly conferred jurisdiction to determine preliminary issues. Affirming the trial court on the medical evidence, the court held that Alzheimer's disease had destroyed the deceased's testamentary capacity, that the Will of 16th June 1999 was invalid, and that the deceased died intestate, his estate to be administered under the Law of Succession Act. On the company shares, the court held that the succession court has jurisdiction over a deceased's shares in a limited company but found the trial court acted precipitately in declaring the 1994 transfer to Wilfred fraudulent; that finding was set aside and the shares issue left for determination during administration. The appeal partly succeeded; as a family matter, each party bears its own costs. The judgment binds lower courts on the burden of proof on testamentary capacity, the limits of Rule 73 inherent powers, and consent-based determination of unpleaded issues.

Questions the Court framed

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

  1. 1.Whether the procedure adopted by the trial court (Kimaru, J.) was proper
  2. 2.Whether the deceased died testate or intestate (validity of the Will dated 16th June 1999 and the alleged 1975 letter-Will)
  3. 3.Whether the shares of CKK Estates (1973) Ltd held by the deceased formed part of the estate and were available for distribution

Key legal issues

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01

Properness of the procedure adopted by the succession court in determining preliminary issues by affidavit and submissions

Holding

The procedure was untidy and not proper, but the consent of 27th February 2014 validly conferred jurisdiction on the trial court to determine the framed preliminary issues

Reasoning

The court found the trial court had outstanding pleadings — caveats, petitions, objections and cross-petitions — that were not addressed before ordering distribution, breaching the LSA, P&A Rules and CPR. Rule 73's inherent powers could not justify becoming 'a bull in a china shop'. However, the consent recorded in the presence of all necessary parties and counsel, coupled with compliance through filing submissions, allowed the court to determine issues outside the pleadings. The appellants' procedural objections were therefore only partially upheld.

p. 10
02

Whether the deceased died testate — validity of the Will of 16th June 1999 for want of testamentary capacity

Holding

The deceased died intestate; the 1999 Will was invalid because Alzheimer's disease had destroyed his testamentary capacity

Reasoning

Medical reports of Drs. Gatere and Mwinzi, together with Githinji J's observation of the deceased in court four months before the Will, discharged the objectors' burden of raising real doubt as to capacity. Once incapacity before execution was proved, the burden shifted to the propounder to establish a lucid interval, which was not discharged. As the matter was decided on affidavit and documentary evidence with no oral testimony, the appellate court's latitude for interference was wider, and the trial court's finding had an evidential basis.

p. 15
03

Jurisdiction of the succession court over shares held by the deceased in a limited liability company

Holding

The succession court has jurisdiction to determine whether shares held by the deceased were validly gifted inter vivos; the trial court acted precipitately in declaring the 1994 transfer fraudulent without cogent evidence

Reasoning

Shares of a deceased in a limited company are distributable assets in a succession cause; a contest as to ownership does not belong exclusively to a 'Companies Court'. Whether the deceased gifted his shareholding in CKK Estates to Wilfred in 1994 was a question of fact requiring cogent evidence. Because the trial court itself had directed that claims of gifts inter vivos be established before distribution, its summary declaration of fraud was premature and was set aside, with the issue left for determination during administration.

p. 17
04

Burden of proof on testamentary capacity and lucid intervals

Holding

The law presumes sanity, but where doubt is raised the propounder must prove capacity; after proof of prior insanity, a lucid interval must be proved by the party setting it up

Reasoning

Relying on Banks v Goodfellow, In Re Estate of Gatuthu Njuguna and the treatise Williams on Wills, the court restated the shifting burden: the objector must first produce evidence of incapacity that disturbs the court's conscience; the burden then shifts to the propounder to show the Will was made after recovery or during a lucid interval. The letters of 1996 and 1998 relied on by the appellant did not discharge that burden.

p. 15

Legal principles established

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  • The shares of a deceased person in a limited liability company are assets distributable in a succession cause; a dispute over ownership of such shares does not oust the succession court's jurisdiction
  • Where a dispute or doubt of sanity exists, the person propounding a will must affirmatively prove the testator's capacity; if the objector proves incapacity before the date of the will, the burden shifts to the propounder to show it was made during a lucid interval
  • The inherent powers saved by Rule 73 of the Probate and Administration Rules may only be invoked in deserving cases where no specific provisions exist; they do not permit a court to disregard the prescribed procedure
  • A court may, with the consent of the parties, determine issues not raised in the pleadings, and such consent confers jurisdiction on the court to decide those issues
  • A memorandum of appeal must comply with Rule 86 of the Court of Appeal Rules; prolix and repetitive grounds may attract a striking-out order

Court orders

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  1. 1.Declaration that the procedure followed by the trial court was not proper but that the consent recorded on 27th February 2014 for determination of preliminary issues was valid
  2. 2.Declaration that the deceased died intestate and his estate shall be administered in accordance with the Law of Succession Act and the Probate and Administration Rules
  3. 3.Confirmation that Isabella Wanjiku Karanja, William Kihara Karuga, Samuel Karuga Koinange and Peter Mbiyu Koinange are lawfully appointed administrators and shall be issued with the full grant of letters of administration
  4. 4.Setting aside of the trial court's finding that the 1994 transfer of the deceased's shares in CKK Estates (1973) Ltd was fraudulent and a nullity, with the shares issue to be determined, if not agreed, on available evidence during administration of the estate
  5. 5.Order that, as a family matter, each party shall bear its own costs of the appeal

The bench

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

majority
majority
William Ouko
W. OukoJA
Currently serving
majority
On appeal from
High Court of Kenya (Succession Cause)
Succession Cause in the estate of Charles Karuga Koinange, deceased — impugned Ruling of Kimaru, J. dated 22nd January 2015 (exact cause number not stated in judgment)
Jurisdiction invoked
First appeal under the Court of Appeal Rules, 2010 (including Rule 29) against a Ruling of the High Court in a succession cause under the Law of Succession Act (Cap 160) and the Probate and Administration Rules

Relief refused

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Finding that the deceased died testate under the Will of 16th June 1999

Medical evidence of Alzheimer's disease established incapacity and no sufficient rebuttal evidence (such as proof of a lucid interval) was adduced

p. 15

Appeal against the consent of 27th February 2014 and the framing of preliminary issues

The consent was recorded in the presence of all necessary parties and complied with; the appellants' plea that it be set aside was rejected

p. 12

Implied plea that the procedural irregularities vitiate the entire ruling and the matter be sent back de novo on the procedure complaint

The court found that although the procedure was untidy, the consent gave the trial court jurisdiction to determine the framed preliminary issues

p. 11

Costs

As this is a family matter, each party shall bear its own costs of the appeal.

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.

(i) The procedure followed by the trial court was not proper but the consent recorded on 27th February, 2014 for determination of preliminary issues was valid.
p. 18final orders — procedure and consent
(ii) The deceased died intestate and his estate shall be administered in accordance with the Law of Succession Act and the Probate and Administration Rules.
p. 18final orders — intestacy
(iii) Isabella Wanjiku Karanja, William Kihara Karuga, Samuel Karuga Koinange and Peter Mbiyu Koinange are lawfully appointed as administrators of the estate of the deceased and shall be issued with the full grant of letters of administration.
p. 18final orders — administrators
(iv) The issue of the shares held by the deceased in the 2nd appellant, and any other limited liability companies, shall, if not agreed, be determined on available evidence during the administration of the estate in accordance with the law.
p. 18final orders — shares
As this is a family matter, each party shall bear its own costs of the appeal.
p. 18final orders — costs
This court therefore holds that the deceased lacked the mental capacity to make an elaborate Will running to nine (9) pages.
p. 15testamentary capacity
There can be no argument that the shares of a deceased in a limited liability company are assets which the family has power to distribute in a Succession Cause.
p. 16jurisdiction over company shares in succession
the process is as important as the result.
p. 10procedure

Issues in the judgment

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minor

Internal inconsistency in the date of the alleged 1975 letter-Will: the judgment refers to a letter 'written by the deceased on 8th May, 1975' but later describes Kimaru J's finding on 'the letter dated 5th May, 1975'

minor

The company is referred to inconsistently as 'CKK Estates (1973) Ltd' and 'CCK Estate Ltd' in different passages

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Koinange (Suing as legal representative of the Late Dr. Wilfred Koinange and also in her own personal capacity) & 5 others v Karanja & 2 others (Civil Appeal 126 of 2016) [2017] KECA 102 (KLR)", Case Analysis (2017). Court of Appeal Civil Appeal (Succession) — memorandum of appeal containing 43 grounds (exact appeal number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/102/eng@2017-12-15

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