Expert opinions on Intermeddling with property are to be well founded and admissible in assisting the Courts in determining matters

Christopher Ndaru Kagina v Esther Mbandi Kagina & another

Succession Cause No 300 of 2013

High Court of Kenya at Nyeri

JM Mativo J

September 20, 2016

Reported by Phoebe Ida Ayaya & Nowamani Sandrah

Law of Succession-administration of estates -Intermeddling- whether the Respondents were guilty of intermeddling with the free property of the deceased -Law of succession Act (cap 160) section 45

Evidence Law- opinions- opinions of experts-scope of opinion of experts  as to hand writing- admissibility of expert witness opinions- whether the expert’s opinions were well founded to be of assistance to court in determining the matter- Evidence Act

Words and phrases-definition-definition of free property in relation to a deceased person- the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.

Brief facts

In the application it was alleged that the Respondents colluded with third ties to intermeddle with the estate of the deceased and crafted fictitious and false sale agreements purporting to have been drawn by the deceased during his lifetime. It was alleged that the Respondents disposed off to themselves or to third parties Land parcel numbers. Further, it was alleged that the first Respondent sub-divided parcel in Mbeere/Mbita/ and created two parcels namely Mbeere/Mbita/ which was transferred to the District Commissioner, Mbeere South and Mbeere/Mbita/ to herself. It was also alleged that she also fraudulently transferred Embu /Municipality to herself while the second Respondent was alleged to have fraudulently transferred to herself Embu /Municipality.

Issues

       i.         Whether or not the Respondents in any manner intermeddled with the deceased's estate and if it amounted to an offence

      ii.         Whether the expert’s opinions in issues of intermeddling were well founded and admissible to be of assistance to the Court in determining matters

     iii.         What were the criteria for assessing an expert’s evidence focused on the quality of the expert’s reasoning?

Relevant provisions of the law

Law of Succession Act

Section 45

 (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

 (2) Any person who contravenes the provisions of this section shall-

(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and

 (b) be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.

Section 47

Enjoins the High Court to entertain any application and determine any dispute under the Law of Succession Act and pronounce such decrees and make such orders therein as may be expedient.

Probate and Administration Rules

Rule 73

Provides that "Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court."

Rule 49

A person desiring to make an application to court relating to the estate of a deceased person for which no provision is made elsewhere in the Rules shall file a summons supported if necessary by affidavit

Held

1.     Section 45 of The Law of Succession Act provided that anyone who had no authority under the Act, or by any other written law, or had grant of representation under the Act took possession or disposed of or otherwise intermeddled with any free property of a deceased person for any purpose was guilty of an offence under the said section.

2.     A reading of the law revealed that there were properties, which the deceased could not freely dispose of during his lifetime, and in respect of which his interest had been terminated by his death; such property did not form part of the free property of the deceased. Also, if a deceased person had during his life time sold, transferred, disposed or in any manner given out his properties either in exchange of consideration or as gifts inter vivos, such gifts or properties whether transfer had been registered or not did not form part of the deceased’s estate. In fact, the Law of Succession protected and preserved transactions made by the deceased during his lifetime.

3.     The evidence on record was that of Emanuel Kenga (PW 1), a document examiner whose evidence was that the signatures appearing on the transfer of lease and sale agreements did not match the known signatures of the deceased. The Applicant had attached great reliance to that evidence. Even though the above witness claimed to have been trained in various places he did not specify the exact nature of the training he underwent or the qualifications (if any) he attained. The said evidence formed the basis upon which the Applicant stated that the transfers or transactions pertaining to the above properties were affected fraudulently and that the said properties formed part of the deceased estate.

4.     The evidence fell under the category of expert evidence and the general rule was that questions regarding the admissibility, qualifications, relevancy and competency of expert testimony were left to the discretion of the trial court.  Expert testimony had to be subjected to vigorous cross-examination and ought to be weighed along with all other evidence.

5.     The duty of an expert witness was to provide independent assistance to the Court by way of objective, unbiased opinion in relation to matters within their expertise. That was a duty that was owed to the Court and overrode any obligation to the party from whom the expert was receiving instructions.

6.     Under the common law, for expert opinion to be admissible it had to be able to provide the Court with information which was likely to be outside the Courts' knowledge and experience, but it had to also be evidence which gave the Court the help it needed in forming its conclusions. The role of the experts was to give their opinion based on their analysis of the available evidence. The Court was not bound by that opinion, but could take it into consideration in determining the facts in issue.

7.     The expert had to be able to provide impartial, unbiased, objective evidence on the matters within their field of expertise. The fundamental characteristic of expert evidence was that it was opinion evidence. To be practically of assistance to a court, however, expert evidence had to also provide as much detail as was necessary to allow the Court to determine whether the expert’s opinions were well founded.

8.     The test for admissibility of expert evidence differed from jurisdiction to jurisdiction. Judges in all jurisdictions face the common responsibility of weighing expert evidence and determining its probative value. That was no easy task. Expert opinions were admissible to furnish courts with information, which was likely to be outside their experience and knowledge. The evidence of experts had proliferated in modern litigation and was often determinative of one or more central issues in a case.

9.     Expert testimony, like all other evidence, had to be given only appropriate weight. It had to be as influential in the overall decision-making process as it deserved; no more, no less. The weight to be given to expert evidence would derive from how that evidence was assessed in the context of all other evidence and the circumstances of the case including the real likelihood of the expert witness having been compromised or the real possibility of such witnesses using their expertise to mislead the Court by placing undue advantage to the party in whose favour they offered the evidence. The Court had to be alert to such realities and act with caution while analyzing such evidence.

10.  It was important to bear in mind the criteria a court should use to weigh the probative value of expert evidence. That was because, while expert evidence was important evidence, it was nevertheless merely part of the evidence that a court had to take into account. Four consequences flowed from that as reiterated by the Court:

a)   Expert evidence did not trump all other evidence. It was axiomatic that judges were entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it was the primary factual evidence that was of the greatest importance. It was therefore necessary to ensure that expert evidence was not elevated into a fixed framework or formula, against which actions were then to be rigidly judged with a mathematical precision.

b)   A judge could not consider expert evidence in a vacuum. It should not therefore be artificially separated from the rest of the evidence. To do so was a structural failing. A court’s findings would often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence would assist the Court in forming its views on the expert testimony and vice versa. For example, expert evidence could provide a framework for the consideration of other evidence.

c)   Where there was conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accepted in order to decide which expert evidence was to be preferred.

d)   A judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones.

11.  Further criteria for assessing an expert’s evidence focused on the quality of the expert’s reasoning. A court should examine the expert’s testimony in terms of its rationality and internal consistency in relation to all the evidence presented. It was correct to state that a court might find that an expert’s opinion was based on illogical or even irrational reasoning and reject it. A judge might give little weight to an expert’s testimony where he found the expert’s reasoning speculative or manifestly illogical. Where a court found that the evidence of an expert witness was so internally contradictory as to be unreliable, the court might reject that evidence and make its decision on the remainder of the evidence. The expert’s process of reasoning had to therefore be clearly identified so as to enable a court to choose which of competing hypotheses was more probable.

12.  It was a trite principle of evidence that the opinion of an expert, whatever the field of expertise, was worthless unless founded upon a sub-stratum of facts that were proved, exclusive of the evidence of the expert, to the satisfaction of the Court according to the appropriate standard of proof. The importance of proving the facts underlying an opinion was that the absence of such evidence deprived the Court of an important opportunity of testing the validity of process by which the opinion was formed, and substantially reduced the value and cogency of the opinion evidence. An expert report was therefore only as good as the assumptions on which it was based.

13.  An expert gave an opinion based on facts. Because of that, the expert had to either prove by admissible means the facts on which the opinion was based, or state explicitly the assumptions as to fact on which the opinion was based. The factors which the Court might take into account in determining the reliability of expert opinion, included:-

a)    the extent and quality of the data on which the expert’s opinion was based, and the validity of the methods by which they were obtained;

b)    if the expert’s opinion relied on an inference from any findings, whether the opinion properly explained how safe or unsafe the inference was (whether by reference to statistical significance or in other appropriate terms);

c)    if the expert’s opinion relied on the results of the use of any method (for instance, a test, measurement or survey), whether the opinion took proper account of matters, such as the degree of precision or margin of uncertainty, affecting the accuracy or reliability of those results;

d)    the extent to which any material upon which the expert's opinion was based had been reviewed by others with relevant expertise (for instance, in peer-reviewed publications), and the views of those others on that material;

e)   the extent to which the expert's opinion was based on material falling outside the expert's own field of expertise;

f)     the completeness of the information which was available to the expert, and whether the expert took account of all relevant information in arriving at the opinion (including information as to the context of any facts to which the opinion related);

g)   if there was a range of expert opinion on the matter in question being the signatures appearing on the transfer documents , where in the range the expert's own opinion lay and whether the expert's preference had been properly explained; and

h)     Whether the expert's methods followed established practice in the field and, if they did not, whether the reason for the divergence had been properly explained.

14.  In considering reliability, and especially the reliability of expert evidence, the Court should be astute to identify potential flaws in such opinion which detracted from its reliability, such as:-

a)    being based on a hypothesis which had not been subjected to sufficient scrutiny (including, where appropriate, experimental or other testing), or which had failed to stand up to scrutiny;

b)    being based on an unjustifiable assumption;

c)   being based on flawed data;

d)    relying on an examination, technique, method or process which was not properly carried out or applied, or was not appropriate for use in the particular case; or

e)   Relying on an inference or conclusion, which had not been properly reached.

15.  The expert evidence was not built on a sub-strum of facts, which were proved to the satisfaction of the Court according to the appropriate standard of proof. Such evidence had to be read together with the rest of the evidence but not independently. The evidence by the document examiner did not establish that it was highly probable that the documents in question were forged.

16.  Courts were enjoined to apply caution before accepting handwriting expert evidence. They had duties and responsibilities as experts in relation to the court which included the following:-

a)    Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation.

b)   An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within their expertise.

c)    An expert witness should state the facts or assumption on which their opinion was based. They should not omit to consider material facts which could detract from their concluded opinion.

d)   An expert witness should make it clear when a particular question or issue falls outside their expertise.

e)    If an expert's opinion was not properly researched because they considered that insufficient data were available then that had to be stated with an indication that the opinion was no more than a provisional one. In cases where an expert witness who had prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification that qualification should be stated in the report.

f)      If, after exchange of reports, an expert witness changed their view on the material having read the other side's expert report or for any other reason, such change of view should be communicated (through legal representative) to the other side without delay and when appropriate to the Court.

g)   Where expert evidence referred to photographs, plans, calculations, analyses, measurements survey reports or other similar documents, these had to be provided to the opposite party at the same time as the exchange of reports.

17.  The laws permitted a person to give gifts inter vivos and once given such gifts were protected by the law as valid and also the law protected and preserved wishes of a deceased person made during his lifetime. The transfers were registered as required and the lands office accepted them and had no reason to doubt the authenticity of the signatures of the deceased. No application had been made to annul the said titles on the basis of the alleged fraud. The fact that the records at the council offices had not been up dated was not a ground to challenge the titles. The Court took judicial notice of the fact that in practice local authorities take time to update their records after titles change hands and that had never been a ground in law to challenge the validity of a title.

18.  The Applicant accused the Respondents of having transferred the properties in question fraudulently. It was trite law that he who alleged fraud had to prove fraud. Allegations of fraud had to strictly be proved. Great care needed to be taken in pleading allegations of fraud or dishonesty.  In particular the pleader needed to be sure that there was sufficient evidence to justify the allegations.

19.  Fraud had to be proved as a fact by evidence and, more importantly, the standard of proof was beyond a balance of probabilities.  The Applicant alleged fraud but had not provided particulars nor had it been proved to the required standard. The report by the document examiner was not conclusive nor could it be said to be convincing if analysed independently or together with the rest of the evidence. Some of the witnesses called by the Applicant were clear that the transfers were affected legally. The Applicant failed to prove any of the allegations of fraud against the Respondents. There was no basis to grant prayers sought.

Application dismissed.