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Court of AppealDismissedCivil Appeal No. 282 of 2006· [2012] KECA 86 (KLR)

Kitur Arap Muzee v Mary Jeptarus Mibei

Court of Appeal of Kenya
19 September 2012
OMOmoloOOOnyango OtienoOKOkwengu
2,161 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed the Law of Succession Act doesn't apply to estates of people who died before 1 July 1981, voiding a 2005 grant over a 1978 estate.

What this practically means

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Executive summary

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This Court of Appeal at Eldoret appeal arose from a ruling by Ibrahim, J. of the High Court at Eldoret in Miscellaneous Succession Cause No. 193 of 2005, dated 19th October 2006. The underlying estate was that of Kipkolum Arap Mibei, who died on 19th August 1978, leaving land known as Nandi/Petty/Cheptil/6. The three widows recorded consents in 1980-1981 distributing the land, and the succession cause in the Kapsabet magistrate's court was concluded. Years later, in 2005, an application under section 71(1) and (3) of the Law of Succession Act led to confirmation of a grant on 17th May 2005, which the respondent challenged by seeking annulment under sections 47 and 76 of the Act. The High Court sustained the appellant's preliminary objection that the Act did not apply to the pre-1981 estate, but nonetheless exercised supervisory powers to quash the confirmation and declare resulting dealings null and void. The appellant appealed on six grounds. Okwengu, JA, in the lead judgment, held that the Law of Succession Act, having come into force on 1st July 1981, did not apply to the estate of a person who died in 1978; that the 2005 confirmation of grant was incompetent and null and void; that the magistrate had no power to substitute the appellant for a deceased widow after the cause was concluded, amounting to an abuse of process; and that the High Court correctly exercised its supervisory jurisdiction suo moto, including on costs. Onyango Otieno, JA concurred. The appeal was dismissed with costs to the respondent. The judgment was delivered under Rule 32(3) as Omolo, JA was not performing judicial functions.

Key legal issues

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01

Applicability of the Law of Succession Act to pre-1981 estates

Holding

The Act did not apply to the estate of a deceased who died on 19th August 1978, before the Act came into force on 1st July 1981.

Reasoning

Sections 2(1) and (2) of the Law of Succession Act apply the Act only to estates of persons dying after its commencement. Succession cause No. 31 of 1980 was not commenced pursuant to the Act, and the distribution recorded on 20th May 1981 concluded the proceedings. Any confirmation of grant under the Act long after conclusion was therefore incompetent and null and void.

p. 4
02

Abuse of process and supervisory jurisdiction of the High Court

Holding

The High Court properly exercised its supervisory powers suo moto to quash the irregular confirmation of grant and declare dealings thereunder null and void.

Reasoning

The District Magistrate had no power to substitute the appellant in place of Jeptum Elizabeth Mibei or issue a certificate of confirmation under the Law of Succession Act after the cause had been concluded. The learned Judge was right to correct this abuse which had come to his notice, notwithstanding that he had sustained the preliminary objection on jurisdiction.

p. 4
03

Costs of the annulment application

Holding

The award of costs to the respondent was proper because she was forced to seek annulment of orders obtained irregularly by the appellant.

Reasoning

The respondent had no option but to move the High Court to annul the confirmation of grant obtained irregularly by the appellant. The appellate court found no reason to interfere with the trial judge's discretion on costs, confirming that a party who obtains orders irregularly bears the costs of correcting them.

p. 4

Legal principles established

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  • The Law of Succession Act applies only to estates of persons dying after its commencement on 1st July 1981, and proceedings concluded before that date cannot be revived or confirmed under it.
  • A court which has concluded the distribution of a succession estate is functus officio and cannot subsequently confirm a grant under the Law of Succession Act.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
On appeal from
High Court of Kenya at Eldoret
Misc. Succ. Cause No. 193 of 2005
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court in succession proceedings

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, "Kitur Arap Muzee v Mary Jeptarus Mibei", Case Analysis (2012). Civil Appeal No. 282 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/86/eng@2012-09-19

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