Samson Kigen v Kiprotich Kigen [2008] KECA 158 (KLR)
The bottom line
#The Court of Appeal ruled that a co-wife and her step-children cannot challenge a deceased woman's will because they aren't legal dependants or beneficiaries.
What this practically means
#Executive summary
#Key legal issues
#Standing to seek revocation of a grant of probate
Neither the respondent nor his mother, being neither dependants nor beneficiaries of the deceased's estate, had locus standi to apply for revocation of the grant.
The respondent was the step-son of the deceased only by virtue of his father's marriage to Jane Kigen; the deceased was the first wife. Section 29 defines dependants, excluding a co-wife as a dependant of her co-wife and including a step-child only where the deceased took the child into his family as his own. Having deposed that she had been chased out of the matrimonial home in 1979, Jane and her children were not dependants or beneficiaries, hence not interested parties under section 76.
Free disposition of property by a registered owner
Whatever the husband Kigen Sitienei did with his own registered property was within his power, so an alleged fraudulent transfer to defeat co-wife/children claims could not found a revocation application by non-beneficiaries.
It was conceded that all the assets listed in the schedule to the petition were registered in the deceased's name, and Jane deposed that the husband was the registered owner of the family land before the transfers. Bosire JA reasoned that a registered owner may deal with his property as he wishes; the grievance of Jane and her children over the transfers did not confer on them the status of interested parties in the deceased's estate.
Error of the court below in treating the parties as siblings of one mother
The High Court judge proceeded on a mistaken factual premise that the deceased was the mother of both sides, vitiating her analysis of standing.
Nambuye J. treated the deceased as father of both the appellant and respondent and their siblings by one mother, when in fact the deceased was the first wife and Jane Kigen the second wife of Kigen Sitienei. This misapprehension led the court below to overlook that the applicant for revocation was, in substance, a stranger to the deceased's estate, undermining the foundation of the revocation order.
Legal principles established
#- A co-wife is not a dependant of her co-wife within section 29 of the Law of Succession Act, and a step-child qualifies only if the deceased had taken that child into his family as his own.
- Only persons who are dependants or beneficiaries of a deceased's estate are 'interested' parties entitled under section 76 of the Law of Succession Act to apply for revocation of a grant of probate.
Court orders
#- 1.Appeal allowed on the terms proposed by O'Kubasu JA (the precise orders appear in O'Kubasu JA's judgment, which is not part of the text supplied)
- On appeal from
- High Court of Kenya at Eldoret
- H.C. Succ. Cause No. 115 of 1996
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (judgment and decree of the High Court); delivered pursuant to rule 32(3) of the Court's Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Kigen v Kiprotich Kigen [2008] KECA 158 (KLR)", Case Analysis (2008). Civil Appeal 193 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/158/eng@2008-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.