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Court of AppealPartially AllowedCivil Appeal No 20 of 1990· [1991] KECA 14 (KLR)

Sewe v Sewe & another (Civil Appeal 20 of 1990) (Civ) [1991] KECA 14 (KLR)

Court of Appeal
19 January 1991
GAGachuhiGIGicheruCOCockar
771 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled family land estates should have joint administrators, not one person, to protect all beneficiaries' interests.

What this practically means

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Executive summary

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The appellant applied under section 51 of the Law of Succession Act (cap 160) for appointment as sole administrator of the estate of his father, Ishmael Sewe Miyumo, without consulting his mother or elder brother. The respondents objected, and the High Court (judgment dated 4th September 1986) appointed the respondents as administrators and dismissed the appellant's application. The appellant appealed, contending that the judge failed to consider section 29(a) of the Act and that the first respondent had contravened section 45(1). During the hearing of the appeal it transpired that the estate property should be held on trust as all parties had an interest in it, and there was fear that a sole administrator might sell the land on which the mother resides. The Court of Appeal, in a single judgment of the court, held that where a continuing trust exists and all parties have an interest, a grant should not issue to one person but to all parties under section 58(1). The court additionally stated, obiter, that the appointment of an administrator is not the same as distributing assets to those entitled to inherit; beneficiaries must return to court at the time of distribution. The appeal was allowed, the High Court order varied so that the appellant, his brother and the mother were all directed to apply to be appointed joint administrators, and each party was ordered to bear his or her own costs of the appeal. No cases were cited.

Key legal issues

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01

Number of administrators where the estate property is subject to a continuing trust

Holding

The grant should issue to all interested parties jointly rather than to a sole administrator, in terms of section 58(1) of the Law of Succession Act (cap 160).

Reasoning

During the appeal it transpired that the property must be held on trust since all parties had an interest in it. The respondents feared that a sole administrator would sell the land on which the mother lives without their knowledge. To safeguard the property from waste and alienation and maintain peace among the family, all three were directed to apply jointly as administrators.

p. 2
02

Distinction between administration and distribution of an estate

Holding

Obiter: the appointment of an administrator is distinct from the distribution of assets to those entitled to inherit; beneficiaries must return to court at the time of inheritance.

Reasoning

The court sought to make clear to the parties that being appointed administrator does not confer entitlement to inherit. Questions of who inherits the land and in what proportion are deferred to a later stage, when the parties will have sorted out the shares and must come to court for distribution.

p. 2

Legal principles established

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  • Where there is a continuing trust and all parties have an interest in the estate, the grant of letters of administration should not issue to one person but to all the interested parties under section 58(1) of the Law of Succession Act.

Court orders

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  1. 1.Appeal allowed
  2. 2.Rosebella Sewe, George Zablon Angungo Sewe and George Ouko Sewe alias John Ouko Sewe shall apply to be appointed administrators of the estate of Ishmael Sewe Miyumo
  3. 3.Each party shall bear his/her costs of this appeal
On appeal from
High Court at Kisumu
High Court Civil Case No 8 of 1985
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate framework; the judgment does not cite a specific provision conferring jurisdiction

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, "Sewe v Sewe & another (Civil Appeal 20 of 1990)  (Civ) [1991] KECA 14 (KLR)", Case Analysis (1991). Civil Appeal No 20 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1991/14/eng@1991-01-19

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