The crime of attempted suicide is unconstitutional for violating the rights to dignity, the right to the highest attainable standards of health and the right to equality, and freedom from discrimination.

Headnote:      The petitioners contend that section 226 as read with section 36 of the Penal Code that criminalized attempted suicide unconstitutional. The High Court held that the crime of attempted suicide was unconstitutional for violating the rights to dignity, the right to the highest attainable standards of health and the right to equality, and freedom from discrimination. The court also held that persons who attempted suicide would be deemed to be suffering from a mental illness and thus lacked the intention (mens rea) to commit the crime of attempted suicide.

Kenya National Commission on Human Rights & 2 others v Attorney General; Director of Public Prosecutions & 3 others (Interested Parties); Law Society of Kenya (Amicus Curiae) (Constitutional Petition E045 of 2022) [2025] KEHC 6 (KLR) (Constitutional and Human Rights) (9 January 2025) (Judgment)

Neutral Citation: [2025] KEHC (KLR)

High Court at Nairobi

LN Mugambi, J

January 9, 2025

Reported by John Ribia

https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/6/eng@2025-01-09

Constitutional Law – fundamental rights and freedoms – right to dignity – right to equality and freedom from discrimination – crime of attempted suicide – constitutionality of said crime - whether section 226 as read with section 36 of the Penal Code that criminalized attempted suicide was unconstitutional for violating the rights to dignity, equality, and freedom from discrimination - Constitution of Kenya articles 27, and 28; Penal Code (cap 63) sections 36 and 226

Constitutional Law – social economic rights – right to the highest attainable standard of health – standards of health available to persons who have attempted suicide – criminalization of attempted suicide – whether the crime of attempted suicide was unconstitutional for denying the survivors the highest attainable standards of health  as the stigmatization associated with crime hindered the victims from seeking help - Constitution of Kenya articles 27, 28, and 43; Penal Code (cap 63) sections 36 and 226

Criminal Law – elements of a crime - mens rea (intention) – crime of attempted suicide – capacity of survivors of attempted suicide to intend to commit suicide – claim that such persons suffered from a mental illness - whether persons who attempted suicide would be deemed to be suffering from a mental illness and thus lacking the intention (mens rea) to commit the crime of attempted suicide – Constitution of Kenya articles 27, 28, and 43; Penal Code (cap 63) sections 36 and 226

Statutes – constitutionality of statutory provisions - section 226 as read with section 36 of the Penal Code – criminalization of attempted suicide - whether section 226 as read with section 36 of the Penal Code that criminalized attempted suicide was unconstitutional for violating the rights to dignity, equality, and freedom from discrimination on the basis of health and disability - whether the crime of attempted suicide was unconstitutional for denying the survivors the highest attainable standards of health - Constitution of Kenya articles 27, 28, and 43; Penal Code (cap 63) sections 36 and 226

Brief facts

The petitioners contend that section 226 as read with section 36 of the Penal Code that criminalized attempted suicide unconstitutional. The petitioners’ case was that section 226 revictimized victims of mental illness which was manifested through attempted suicide. The provisions went against the provisions of non-discrimination on the basis of health and disability, the right to human dignity, the right of persons with disabilities, and the protection of the best interest of the child as well as the rights of the child. That the provisions impeded the right to the highest attainable standard of health as the stigmatization associated with crime hinders the victims from seeking help hence was an obstacle to the right to equality before the law. The petitioners also contended that individuals who attempted suicide were persons with disabilities arising from mental health issues.

There respondents in opposition contended that there had have been various attempts to amend the Penal Code. As such they argued that the High Court lacked jurisdiction over a policy/legislative issue that was before Parliament. The respondent and the 5th and 6th interested parties also argued that the impugned section was crucial to prevent self-harm especially by criminals.

Issues

  1. Whether section 226 as read with section 36 of the Penal Code that criminalized attempted suicide was unconstitutional for violating the rights to dignity, equality, and freedom from discrimination on the basis of health and disability.
  2. Whether the crime of attempted suicide was unconstitutional for denying the survivors the highest attainable standards of health as the stigmatization associated with crime hindered the victims from seeking help.
  3. Whether persons who attempted suicide would be deemed to be suffering from a mental illness and thus lacking the intention (mens rea) to commit the crime of attempted suicide.

Held

  1. The High Court had jurisdiction to determine the mater. The petitioners want the High Court to determine if section 226 of the Penal Code met constitutional threshold which would be an issue falling under article 165(d)(i) of the Constitution.
  2. To the extent that courts must be slow to interfere on policy matters falling within other branches of Government but that was only if the said policies were consistent with constitutional principles and values. For instance, a policy decision that went against article 10 by Parliament or the Government for being discriminatory in its application or in violation of human rights cannot escape scrutiny by the court. Application of article 10 applied across the board. The court had a constitutional obligation to scrutinize the policy or the law in question for conformity with the Constitution.
  3. The 5th and 6th interested parties were approached but rejected the said proposal to consider making changes on section 226 of the Penal Code albeit from a different party which did not mean it would have different had it been the petitioners who had done it. Article 119(1) of the Constitution did not preclude the jurisdiction of the High Court to determine the constitutionality of impugned legislation.
  4. Subject to article 259 of the Constitution, the Constitution was to be construed liberally to give effect to the values it embodied and the purpose for which its makers framed. In examining the constitutionality or lack thereof of a Statute, Courts were also to bear in mind the general presumption that deems every Act of Parliament to be constitutional unless otherwise established.
  5. Section 2 of the Mental Health (Amendment) Act defined a person with mental illness as a person diagnosed by a qualified mental health practitioner to be suffering from mental illness, and included a person diagnosed with alcohol or substance use disorder; and a person with suicidal ideation or behaviour. Persons subject to section 226 of the Penal Code were persons suffering from mental illness. Section 226 of the Penal Code existed notwithstanding the above definition of mental illness which included suicide ideation thereby making it a health issue. Further the Kenya Mental Health Policy 2015 – 2030 recognised persons with mental illnesses as persons living with disabilities.
  6. The argument that the existence and retention of section 226 of the Penal Code insisting that it in consonance with protecting the right to life by deterring and preventing self-destructive behaviour flew in the face in view of the very evidence that suicide ideation was mental health issue hence it was not a ‘willed act’ by made by human being of sound mind. The Ministry of Health had classified it as a disability.
  7. Persons who attempt suicide were victims of mental illness and not criminals who possessed the requisite mens rea (intention) to commit the offence. The 5th and 6th interested parties have had the power to amend or repeal to reflect to the reality but had failed to do so.
  8. Applying the purpose and effect principle of constitutional interpretation, section 226 of the Penal Code offended article 27 of the Constitution by criminalising a mental health issue thereby endorsing discrimination on the basis of health which was unconstitutional. It also indignified and disgraced victims of suicide ideation in the eyes of the community for actions that were beyond their mental control which was a violation of article 28. The existence of section 226 exposed the survivors of suicide and potential victims with suicide ideation to possible reprisals thereby eroding the right to have the highest attainable standard of health envisaged in article 43 (1) of the Constitution.

Petition allowed.

Orders

  1. A declaration was made that section 226 of the Penal Code was unconstitutional for violating articles 27, 28 and 43 of the Constitution.
  2. Each party was to bear their own costs.

 

Authentication and proof of the signature of a deponent in an affidavit taken outside the Commonwealth can be done other than by way of an affidavit

Headnote; In the instant case, counsel for the 1st defendant implored the court to find that the plaintiff had failed to comply with terms of the court’s order directing them to respond to interrogatories within seven days. The court held the fact that the affidavit predated the interrogatories did not ipso facto invalidate the affidavit in response. The court further held that the authentication and proof of the signature of the deponent in affidavit taken outside the Commonwealth, could certainly be done other than by way of an affidavit.

 

Lakeview Development Limited v Belgo Holdings Limited & another (Environment & Land Case E064 of 2020) [2023] KEELC 19199 (KLR) (27 July 2023) (Ruling)

Neutral citation: [2023] KEELC 19199 (KLR)

 

Environment and Land Court at Nairobi

JO Mboya, J

July 27, 2023

Reported by Kakai Toili

https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19199/eng@2023-07-27

 

Civil Practice and Procedure – affidavits – validity of affidavits - validity of affidavits taken outside the Commonwealth - authentication and proof of the signature of the deponent - whether the authentication and proof of the signature of a deponent in an affidavit taken outside the Commonwealth could be done other than by way of an affidavit - whether an affidavit in response of interrogatories which predated the interrogatories invalidated the affidavit – Civil Procedure Rules, 2010, Order 19 rules 7 and 8.

 

Brief facts

The 1st defendant took out and served interrogatories dated June 21, 2023; and in respect of which same sought to have the plaintiff respond to the interrogatories within the timelines prescribed and/or alluded to thereunder. The plaintiff failed to respond and or answer the interrogatories within the prescribed timeline. Consequently, counsel for the 1st defendant implored the court to set and circumscribe timelines for purposes of filing the requisite response to the interrogatories. The court issued among other orders; that the plaintiff was granted 7 days within which to file and serve the requisite response.

On July 17, 2023, the matter came up for mention with a view to ascertaining and/or confirming whether the plaintiff had duly complied and filed the requisite response/ answer. In the course of the proceedings, counsel for the 1st defendant implored the court to find and hold that the plaintiff had failed to comply with the express terms of the court order made on the July 6, 2023. Counsel for the 1st defendant urged the court to invoke the default clause and mark the suit as dismissed.

 

Issues

  1. Whether an affidavit in response of interrogatories which predated the interrogatories invalidated the affidavit.
  2. Whether the authentication and proof of the signature of a deponent in an affidavit taken outside the Commonwealth could be done other than by way of an affidavit.

 

Relevant provisions of the law

Civil Procedure Rules 2010

Order 19 - Affidavits

Rule 7 - Irregularity in form of affidavit

The court may receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality.

Rule 8 - Affidavit sworn before suit filed

Unless otherwise directed by the court an affidavit shall not be rejected solely because it was sworn before the filing of the suit concerned.

 

Held

  1. From Order 19 rules 7 and 8 of the Civil Procedure Rules, an affidavit was not rendered invalid and in admissible in proceedings before a court of law, merely because an affidavit was taken earlier than the suit or better still prior to the event, which same sought to respond to. Even though the affidavit in response predated the interrogatories; which were being responded to, the fact that the affidavit predated the interrogatories did not ipso facto invalidate the affidavit in response.
  2. The question of the date when the affidavit in response was taken, could not by itself deprive the court of the jurisdiction to admit that affidavit and to refer thereto. The court was bestowed with discretion to admit and rely upon any such affidavit in an endeavor to achieve substantive justice. Additionally, to find and hold that the predating to the affidavit would render it inadmissible, would be tantamount to superseding and/or disregarding the express provisions of the law.
  3. The anomaly and defect, relating to predating of an affidavit, did not render the impugned affidavit invalid. In any event, the court was bestowed with the requisite discretion to accept and admit any such affidavit. Consequently, the wider interests of justice and in particular, the provisions of article 159(2)(d) of the Constitution obliged the court to admit the impugned affidavit despite the anomaly relating to the date thereunder.
  4. The ratio decidendi in the case of Pastificio Lucio Garofalo S. PA v Security & Fire Equipment Company Zazeco (K) Ltd (2001)eKLR, did not exclude verification of the signature by such other document generated and made/executed by the designated notary public before whom the affidavit in question was taken and/or sworn. From the ratio decidendi, the proof of execution of the affidavit taken outside the Commonwealth and the authentication thereof, could be undertaken by way of an affidavit made by the notary public before whom the affidavit was taken or by such other manner, in the instant case, vide a document, which must nevertheless have the signature of the notary public and the seal thereof affixed thereto.
  5. The verification/authentication could either be proved by affidavit or otherwise. For good measure, the inclusion of the term otherwise, denoted that the law allowed the usage of such other document, so long as the document under reference bore the signature and the seal of attestation affixed by the designated notary public. The authentication and proof of the signature of the deponent in affidavit taken outside the Commonwealth, could certainly be done other than by way of an affidavit.
  6. A court of law dealing with an affidavit taken and/or sworn outside the Commonwealth was called upon to ascertain whether the signature of the deponent had indeed been authenticated and in that regard, the court was obligated to ascertain the existence of an authentication document; which must bear the signature and the seal of attestation affixed thereto by the notary public.
  7. In respect of the subject affidavit in response to the interrogatories, there was a document which had been attached thereto and wherein the notary public authenticated that the deponent of the impugned affidavit in response indeed appeared before him and that upon ascertaining the identity of the deponent, the notary public proceeded to and notarized the affidavit in question. The document which had been attached to the affidavit in response to the interrogatories, did not only bear the signature of the notary public in authentication, but the same also had the seal affixed thereto.
  8. The authentication of the signature of the deponent of the affidavit in response to the interrogatories vide the documents attached thereto met and complied with the prescription of section 88 of the Evidence Act, Chapter 80 Laws of Kenya. Nevertheless, even assuming that the provisions of section 88  were stringent on the verification being done by way of an affidavit (which was not the case), the decision in the case of Pastificio Lucio Garofalo S. PA v Security & Fire Equipment Company Zazeco (K) Ltd (2001)eKLR and by extension section 88 must be read in accordance with the provision of the Constitution of Kenya, 2010 and in particular, articles 48, 50(1) and (2) and 159 (2) (d).
  9. The drafters of the Constitution endeavored to and indeed underscored the necessity of a court of law to venture forward and to render substantive justice and not be held hostage by procedural technicalities, including form of documents to be filed, in certain instances and particularly, where form did not go to the root of the issue in dispute.
  10. There were instances where undue adherence to procedural technicalities, may very well end up driving litigants from the seat of justice and thereby infringing upon the Constitution right of access to justice in terms of article 48 of the Constitution. The impugned affidavit in response to the interrogatories had been duly verified and authenticated vide a suitable document duly signed and sealed by the designated notary public. The impugned affidavit complied with and satisfied the ingredient espoused vide section 88 of the Evidence Act.
  11. The plaintiff ventured forward and duly filed and served an affidavit in response to the interrogatories. The affidavit in response to the interrogatories was filed and served within the stipulated 7 days period. If the court had to ascertain whether there was a compliance with the court order or otherwise; then what the court had to authenticate was the filing and service of an affidavit in response to the interrogatories. In that regard, there was an affidavit in response, which had been duly filed and served within the stipulated timeline. Consequently, the plaintiff had complied with the orders of the court made/issued on July 6, 2023.
  12. In answer to interrogatories, the concerned party against whom interrogatories had been served; had a freedom of expression as espoused and entrenched in article 33 of the Constitution. In responding to the interrogatories, the plaintiff must not be put in a straight jacket and panel- beaten to adopt a particular perspective or set of answers that favored the adverse party. Simply put, the plaintiff whilst responding to the interrogatories had and enjoyed the constitutional rights and fundamental freedom relating to expression.
  13. The court was never invited to strike out and/or expunged the impugned affidavit in answer to the interrogatories. A court of law could not ignore a legal document which had been duly filed by a litigant. The established position of the law/ jurisprudence was that any offending document ought to be struck out and/or expunged from the record of the court. However, and to the extent that the court was never invited to expunge and/or strike out the impugned affidavit in response to the interrogatories, the affidavit in question remained alive and thus formed part of the record of the court. In the premises, there was no way that a court of law could be invited to shut/close his/her eyes to such a document and thereafter disregard same.
  14. Compliance was separate and distinct from validity. Instructively, the court at that juncture was only concerned with whether there was an affidavit in response to the interrogatories that was filed within the stipulated timelines and not its validity. The court was not at that juncture called upon to undertake a mini-trial to examine in minute details, whether each and every question had been answered and say, answered in the manner that pleased and/ or found favour with the adverse party.
  15. The impugned affidavit was admissible/acceptable, taking into account the provisions of Order 19 rules 8 of the Civil Procedure Rules. Consequently, even if the court were to venture forward and make a determination on the basis of the validity of the affidavit, it would still have come to the same conclusion.

Application dismissed.

Orders

  1. The plaintiff had duly responded to the interrogatories served by the 1st defendant in terms of the affidavit in response to the interrogatories sworn on June 12, 2023.
  2. The court declined the invitation to deem the suit beforehand as dismissed for want of compliance with the orders of the court issued on the July 6, 2023.
  3. The instant suit remained alive and the parties and their respective advocates were implored to take suitable steps for purposes of progressing the hearing and eventual disposal of the suit in the conventional way; unless deemed otherwise by the parties.

Decisions made under the Succession Act are not subject to leave requirements prescribed by the Civil Procedure Rules unless expressly provided.

Headnote:      The case involved a succession dispute where the trial court ordered partial distribution of the deceased’s estate before a full accounting of investments made using estate assets. The petitioners argued that the distribution was premature and that the valuation of the estate property, separate from subsequent developments, was necessary for equitable distribution. The Court of Appeal upheld the need for transparency in estate administration, finding that accounts and property valuation were essential to ensure compliance with the Law of Succession Act and fairness among beneficiaries.

Dada v Dada & 3 others (Civil Appeal E090 of 2021) [2023] KECA 1318 (KLR) (10 November 2023) (Judgment)

Neutral Citation: [2023] KECA 1318 (KLR)

Court of Appeal at Mombasa

P Nyamweya, JW Lessit & GV Odunga, JJA

November 10, 2023

Reported by John Ribia

https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1318/eng@2023-11-10

Law of Succession – appeals – appeals to the Court of Appeal – procedural law – requirement for leave under the Civil Procedure Rules – applicability of requirement to disputes arising from the Law of Succession Act - whether the requirement for leave to appeal to the Court of Appeal under Order 43 of the Civil Procedure Rules applied to decisions made under the Law of Succession Act, which were not governed by the Civil Procedure Rules - whether subjecting decisions under the Law of Succession Act to the leave requirement under the Civil Procedure Rules caused injustice or contradicted the purposive interpretation of the Constitution - whether failure to seek leave to appeal to the Court of Appeal within the prescribed time rendered the appeal invalid - whether the Law of Succession Rules took precedence where inconsistencies between the procedural frameworks of the Law of Succession Rules, the Civil Procedure Rules, and the Court of Appeal Rules created ambiguity regarding the requirements for leave to appeal, timelines for filing, and the applicable procedural standards in succession matters - Law of Succession Act (cap 160) section 47; Court of Appeal Rules, 2022 (cap 9 Sub Leg) rule 86; Civil Procedure Act (cap 21) section 66; Civil Procedure Rules, 2010 (cap 21 Sub Leg) order 43; Constitution articles 20(2),(3); 48, 50; 15(2)(d), (e); 163(4); 262(7); Constitution (repealed) section 64(1)

Law of Succession – estate accounts – distributions from funds from an estate – requirement to account before distribution - whether the trial court prematurely ordered the distribution of funds from the estate without a full accounting of the investments made using estate assets - Law of Succession Act (cap 160) section 47

Law of Succession – valuation – valuation of estate property - whether the valuation of the estate property, distinct from subsequent developments, was required to ensure equitable distribution among beneficiaries and compliance with the Law of Succession Act - Law of Succession Act (cap 160) section 47

Brief facts

The case arose from a succession dispute concerning the partial distribution of a deceased’s estate. The trial court had ordered the distribution of funds from the estate without fully accounting for investments made using estate assets. Beneficiaries argued that the distribution was premature, lacked transparency, and failed to adhere to the Law of Succession Act. They further contended that the valuation of the estate property, distinct from developments on it, was necessary for equitable distribution. The trial court’s decision prompted an appeal, focusing on whether proper procedures were followed and whether leave to appeal was required under conflicting procedural rules.

Issues

  1. Whether the requirement for leave to appeal to the Court of Appeal under Order 43 of the Civil Procedure Rules applied to decisions made under the Law of Succession Act, which were not governed by the Civil Procedure Rules.
  2. Whether subjecting decisions under the Law of Succession Act to the requirement to seek leave before filing an appeal to the Court of Appeal under the Civil Procedure Rules contradicted the purposive interpretation of the Constitution.
  3. Whether failure to seek leave to appeal to the Court of Appeal within the prescribed time rendered the appeal invalid.
  4. Whether the Law of Succession Rules took precedence where inconsistencies between the procedural frameworks of the Law of Succession Rules, the Civil Procedure Rules, and the Court of Appeal Rules created ambiguity regarding the requirements for leave to appeal, timelines for filing, and the applicable procedural standards in succession matters.
  5. Whether the trial court prematurely ordered the distribution of funds from the estate without a full accounting of the investments made using estate assets.
  6. Whether the valuation of the estate property, distinct from subsequent developments, was required to ensure equitable distribution among beneficiaries and compliance with the Law of Succession Act.

Held

  1. Jurisdiction was an issue that has to be determined in limine (at the threshold) since if a court had no jurisdiction in a matter it could not take further steps in the matter. A court’s jurisdiction flowed from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It could not arrogate to itself jurisdiction exceeding that which was conferred upon it by law. 18.
  2. Where the law provided that an appeal only lay with leave, the failure to seek and obtain leave deprived the court of jurisdiction to entertain the appeal. A court of law could only exercise jurisdiction as conferred by the Constitution or other written law.
  3. The jurisdiction of the Court of Appeal was derived from article 163(4) of the Constitution to determine appeals from the High Court and any other court or tribunal as prescribed by an Act of Parliament. The position must be contradistinguished from section 64(1) of the repealed Constitution which had jurisdiction and powers in relation to appeals from the High Court as may be conferred on it by law.
  4. The Court of Appeal under the 2010 constitutional regime had the jurisdiction to entertain appeals from the High Court, unless there exist a law restricting or limiting that jurisdiction. The prevailing pre- 2020 jurisprudence was that since jurisdictional mandate of the court was restricted to matters in which the law conferred jurisdiction on the court, unless there was a specific legal provision expressly conferring jurisdiction to the court, the court had no jurisdiction. The law was not quite settled.
  5. The requirement for leave to appeal to the Court of Appeal was prescribed in Order 43 of the Civil Procedure Rules which provided for orders from which an appeal lay as of right and those from which leave was required. However, that order applied to orders made under the rules. Since decisions made under the Law of Succession Act were not orders made under the Civil Procedure Rules, order 43 did not apply to such decision in so far as the requirement for leave to appeal was concerned.
  6. Subjecting the decisions made under the Law of Succession Act to the requirement of leave under the Civil Procedure Act was likely to cause injustice and defeat the objective of seeking leave set out above. Since decision under the Law of Succession Act were not made pursuant to the Civil Procedure Act and rules made thereunder, there argument that since there was no express right of appeal provided by the Law of Succession Act, even an application for leave to appeal may not be sought since it was not one of those decisions for which leave to appeal was permissible under the Civil Procedure Act would run counter the purposive interpretation of article 163(4) of the Constitution. The court must adopt an interpretation which did not impose a forced and strained interpretation of the provisions of the Law of Succession Act leading to a result which seems contrary to the constitutional provisions and principles and common sense on one hand and on the other hand, one which did no violence to the language used and yet furthers the true intention of the Legislature and the Rules Committee.
  7. Where it was alleged that leave to appeal ought to have been sought and obtained but was not so sought, it would follow that no appeal lay and that was an issue that fell squarely within the ambit of rule 86 of the Court of Appeal Rules. The proviso to rule 86 required that in those circumstances an application for striking out ought to be made within 30 days of service of the Notice or Record of Appeal. The proviso to the rule was introduced by the 2010 version of the Court of Appeal Rules and its rationale was that the provisions of the proviso to rule 80 of the Court of Appeal Rules were applicable to both the Notice of Appeal and the appeal and that must be plainly so from the logic of it, although the wording could have been, expressly, better put. The starting point was the mischief that the amendment of the rule was intended to address and that was the practice by parties, either by design, negligence or pure inaction, waiting for days, months or even years until the very minute when the appeal was called out for hearing, only to seek the striking out of either the Notice of Appeal or the appeal or both. If a person affected by an appeal chose to strike out the Notice of Appeal or the appeal or either of them, they were free to do so under the amended rule, but only within 30 days of service thereof; if it was an application in respect of the Notice of Appeal, then the challenge should be made within 30 days of service thereof and if it was the appeal itself, the same limitation applied. The appellant did not require the leave of the court to file the instant appeal.
  8. Being the first appeal, the first appellate was to reconsider the evidence, evaluate it and draw its own conclusion of facts and law. The first appellate court would only depart from the findings by the trial court if they were not based on evidence on record; where the trial court was shown to have acted on wrong principles of law.
  9. Where the estate of a deceased person had been distributed to the beneficiaries and each beneficiary had been given his or her share of the estate, further developments or improvements of the respective shares of the beneficiaries whether individually or collectively, could no longer be subject of distribution as if the property was still part of the estate of the deceased. However, where there was no distribution but the estate property was invested, the proceeds of that investment still formed part of the estate of the deceased since the administrators as trustees of the estate are properly within their mandate to invest the property in a manner that improves the value of the estate. In this case, the learned Judge found that there was no transparency in the management of the estate of the deceased and that the material before the court was inadequate to establish how the estate was administered and whether it was administered in accordance with the wishes of the deceased.
  10. The court was not satisfied that the estate of the deceased had been distributed. In those circumstances it cannot be said that the trial court erred in her decision directing that accounts be taken. None of the beneficiaries stand to be prejudiced as the accounts, if properly presented would reveal who had been fully paid and whether or not the investments in the flats ought to inure to the benefit of all the beneficiaries or to only a few who ploughed their entitlements into the said developments.
  11. The plot on which the flats were constructed belonged to the estate and hence the need to undertake the valuation of the said plot separate from the developments. The trial court having expressed reservations as to the manner in which the estate was administered ought not to have partly distributed the estate at that point in time by ordering that the executrix distributes of Kshs 14,846,797.00 and that Kshs 6,279,159 be shared amongst the beneficiaries in accordance with the will of the deceased. It would have been more prudent that the partial distribution be kept in abeyance pending the rendering of the account in which event the matter would be clearer for the purposes of final distribution.
  12. The court upheld the decision of the trial court save that the Court of Appeal set aside the order directing the executrix to distribute of Kshs 14,846,797.00 and that Kshs 6,279,159.00 be shared amongst the beneficiaries in accordance with the will of the deceased.

Appeal partly allowed, no order as to costs.