Francis Muchiri Wairia v Alice Wangari Wairia & another [2011] KECA 181 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that estates of people who died before 1981 are distributed under the customs of that time, not the Law of Succession Act.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether section 40 of the Law of Succession Act applies to the estate of a deceased who died in 1968, before the Act commenced on 1st July 1981, and how it should be construed for distribution of a polygamist's estate
- 2.Whether the Mucharage land formed part of the deceased's estate
- 3.Whether the superior court's mode of distribution of the Kagongo land equally between the two houses was correct
- 4.Whether the order that the objector pay costs and interest of the suit was erroneous
Key legal issues
#Applicability of section 40 of the Law of Succession Act to a pre-1981 intestate estate
Section 40 does not apply because the deceased died in 1968, before the Act came into operation; the estate is governed by the customs applying at the date of death, with only administration proceeding under the Act.
Section 2(2) of the Act expressly preserves the written laws and customs applicable at the date of death for persons dying before commencement, subjecting only the administration process to the Act. The Court therefore declined to consider the applicability or construction of section 40 to the distribution of this polygamist's estate.
Distribution by houses under applicable Kikuyu customary law
Distribution by reference to the houses of each wife accords with Kikuyu customary law, subject to the repugnancy proviso in section 3(2) of the Judicature Act and constitutional protection against sex discrimination.
Relying on Contran's 'The Law of Succession', the Court noted that in a polygamous household distribution is by reference to each house, widows have lifetime use rights, and unmarried daughters may receive a share. Customary law is fluid and any custom antithetical to constitutional non-discrimination would be unenforceable; the equal division between the two houses was upheld.
Whether the Mucharage land formed part of the estate
It did not; the trial judge's finding that the deceased had no entitlement to it was affirmed on re-evaluation of the evidence.
The evidence accepted by the superior court was that the sons of the seller refunded the deposit to the deceased's two wives, who shared it, and no claim was pursued for the land. No family member challenged the repossession. The claim was dismissed as a red herring, so ground 3 failed.
Costs and interest in succession causes
Costs in succession matters are not automatically borne by the estate; they remain at the discretion of the trial court and ordinarily follow the event.
The Court rejected the appellant's submission that costs in succession causes are always payable from the estate, finding no basis to interfere with the trial judge's discretion in condemning the objector to pay costs and interest.
Legal principles established
#- The estates of persons dying before the commencement of the Law of Succession Act on 1st July 1981 are governed by the written laws and customs applicable at the date of death; only the administration of such estates proceeds under the Act, and its substantive distribution provisions such as section 40 do not apply.
- A custom is unenforceable to the extent that it is repugnant to justice and morality, inconsistent with any written law, or discriminatory on the basis of sex.
- An appeal against a deceased respondent abates where no substitution is made, and the decree in that respondent's favour remains unchallenged and unaffected by orders in the appeal against the remaining respondents.
Court orders
#- 1.Appeal against Alice Wangari Wairia declared abated under rule 99(2) of the Court of Appeal Rules
- 2.Appeal heard and determined as against the second respondent only
- 3.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- H.C.Succ. C. No. 3 of 1999
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Law of Succession Act and Appellate Jurisdiction Act (appeal from High Court succession cause)
Relief refused
#Distribution of the estate according to the number of children in each house under section 40 of the Law of Succession Act
The Act does not govern the estate of a person who died before its commencement; only the administration process applies, and the appeal against Alice having abated, the share given to her was unchallenged
Claim that the Mucharage land formed part of the estate
No firm evidence that the deceased had entitlement to that land; the deposit was refunded and the land repossessed
Substitution of the deceased first respondent's estate to continue the appeal against her
No substitution was effected despite adjournments; the appeal against her abated under rule 99(2)
Reversal of the costs order condemning the objector to pay costs and interest
Costs are at the discretion of the trial court and ordinarily follow the event; no basis shown for the proposition that costs in succession matters are borne by the estate
Costs
Appeal dismissed with costs (the appellant to pay the costs of the appeal).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
On the face of it therefore, the estate of the deceased in this matter is not governed by the Act and is “subjectd to the customs applying at the date of death”. Only the administration process would be applicable, but even then only to the extent that it is possible.
The upshot is that this appeal has no merits and we order that it be and is hereby dismissed with costs.
As the decree in favour of Alice thus remained unchallenged, it follows that the portion of 2.3 acres of Kagongo land that was shared out to Alice, remains unaffected by any orders that we may issue in this appeal.
we find as the trial Judge did, that the evidence of the appellant and Vincent Mbao in relation to a second parcel of land belonging to the deceased was a red herring.
There is no reason why we should interfere with the discretion of the superior court judge on costs and we reject that ground of appeal.
Issues in the judgment
#The appeal-from judgment date is printed as '30th Mary, 2002', an apparent typographical error for a month (the full grant was confirmed on 30th May, 2002); the date is recorded as 30 May 2002 on that basis.
The judgment quotes section 2(2) of the Law of Succession Act with the misspelling 'subjectd' and 'inestate estate' in the quoted section 40 text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Muchiri Wairia v Alice Wangari Wairia & another [2011] KECA 181 (KLR)", Case Analysis (2011). Civil Appeal No. 128 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/181/eng@2011-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.