Gachigi & another v Evans & 11 others; Mburu & 3 others (Cross Appellant) (Civil Appeal 221 of 2007) [2014] KECA 150 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed grandchildren inherit through deceased parents and children cannot be excluded from a family estate simply for staying quiet in court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether grandchildren of the deceased, whose parents predeceased her, are entitled to inherit under the principle of representation notwithstanding that they were not dependent on the deceased at her death
- 2.Whether the daughters of the deceased (Agnes, Lucy and Jane) could be disinherited solely for lack of active participation in the succession proceedings
- 3.What was the effect of the stay order of 11th September 2004 on the consent orders of 15th and 25th January 2002
- 4.Whether the trial Judge erred in failing to call for valuation reports before distribution
- 5.Whether double allocation of parcels (Block 7/527 and 7/538) is a fatal or curable error
- 6.Whether properties allegedly sold (Block 4/259 and Block 7/548) formed part of the distributable estate
- 7.Whether litigation costs over estate assets should be treated as liabilities of the estate
- 8.Whether the appeal against the late Peter Gachigi abated so that his distributions could not be touched
Key legal issues
#Entitlement of grandchildren whose parents predeceased the intestate
The grandchildren qualified as dependants and inherit per stirpes through their deceased parents under the principle of representation in section 41 of the Law of Succession Act; non-dependence at the time of death was not disqualifying.
Sections 29(b) and 41 of the Act recognize children and grandchildren as dependants and apply the principle of representation. Unrebutted depositions established the grandchildren were children of predeceased children of the deceased. The consent order of 25 January 2002 had also recognized their entitlement. The trial Judge was therefore justified in considering them proper dependants, though on redistribution they benefit through their parents' household units rather than as single units.
Disinheritance of the three married daughters for non-participation
The trial Judge erred in excluding Agnes, Lucy and Jane solely on account of their lack of active participation; absent renunciation they remained beneficiaries under section 38.
The three had been recognized in the consent order of 15 January 2002 and in the distribution proposals of three administrators, and had never renounced their claims. Under section 38 of the Law of Succession Act equal distribution among children is the guiding principle, and lack of participation is not a disentitling factor. The court restored them to the redistribution as beneficiaries in their own right.
Effect of the stay order of 11 September 2004 on prior consent orders
The stay merely forestalled execution of the consent orders before determination; not having been discharged or varied, the consents remained on the record and the trial Judge was entitled but not bound to take them into account.
The order of 11 September 2004 stayed all previous consents, but the court held that a stay does not discharge or vary consent orders nor render them useless. Their presence did not bar the court from confirming, varying or supplementing the benefits bestowed, since the Judge was entitled to consider whether they were in tandem with the provisions of the law. The trial Judge rightly bore them in mind.
Double allocation of parcels 7/527 and 7/538
Double allocations are curable errors; the remedy is co-ownership as tenants in common or sale and equal sharing of proceeds. On redistribution the court cured the duplication by fresh allocations.
The court adopted the principle urged by counsel for Elizabeth that an error of double distribution with no indicated mode of shareholding is curable either by confirming distribution to one beneficiary with equivalent compensation to the other, or by sale and equal sharing. In its own redistribution the court avoided duplication by allocating each parcel to a single household unit.
Properties allegedly sold (Block 4/259 and Block 7/548) and abatement against Peter Gachigi
Alleged sales not proved by court order or disclosed in the administrators' lists remain distributable estate; and distributions to Peter Gachigi, whose appeal abated, could still be redistributed because no proprietary rights had crystallized before confirmation of the grant.
No specific court order authorizing the alleged sale of Block 4/259 or the sale of Block 7/548 to Crater Motors was shown, and the administrators had not disclosed them as sold in their distribution lists, unlike the confirmed lifetime sales by the deceased. As to abatement, the court agreed the appeal against the late Peter lapsed for want of substitution, but held that in succession proceedings rights crystallize only upon confirmation of the grant, which had not occurred, so his allocations could be disturbed.
Valuation reports and treatment of litigation costs
The trial Judge should prudently have called for valuation reports, though the omission caused no prejudice given the uniform locality of the plots; and litigation costs over estate assets, administrators' costs and third-party liabilities had to be provided for before distribution.
Parties themselves had not requested valuations, and the parcels all appeared to result from subdivision of one large parcel in the same locality, so no beneficiary was prejudiced by their absence. Litigation costs over estate assets are liabilities incurred on behalf of the estate, and administrators' costs must be strictly proved as incurred for the estate's benefit; both were to be ascertained and paid as third-party liabilities.
Legal principles established
#- Where a child of an intestate has predeceased the intestate, that child's issue take per stirpes under the principle of representation in section 41 of the Law of Succession Act, and are entitled as dependants under section 29(b) regardless of non-dependence at death.
- Failure to participate actively in succession proceedings is not a ground to disinherit a child of the deceased who has not renounced their claim.
- A stay of consent orders in succession proceedings does not discharge or render them of no consequence; the court retains power to confirm, vary or supplement them, and the Judge is not bound by them.
- Double allocation of estate property is a curable error.
- In succession proceedings, no proprietary rights crystallize in a beneficiary until confirmation of the grant, so a distribution made before confirmation can be disturbed on appeal even where the appeal against that beneficiary has abated.
- Litigation costs over assets forming the estate are liabilities of the estate and must be provided for in distribution.
- A first appeal to the Court of Appeal is by way of retrial: the court must reconsider and evaluate the evidence and draw its own conclusions, making allowance for not having seen or heard the witnesses.
Court orders
#- 1.Redistribution of the estate: LR.209/11540 Nairobi and LR.337/1004 Mavoko to be valued and sold, proceeds applied to verified third-party liabilities of the estate, residue shared equally among the identified household units
- 2.Motor vehicles, scrap metal, tractors, plough and proceeds of the twelve heads of cattle to be valued, sold and proceeds pooled with the residue for distribution
- 3.LR. NKu Mun. Block 4/258 and Block 4/259 to be held as tenants in common by the identified beneficiaries, or alternatively sold and proceeds shared equally
- 4.LR. NKu Mun. Block 7/491 (approximately 10 acres) to be shared equally among all the living household units, with Elizabeth Wanjira Evans to inherit the deceased's homestead
- 5.Shares in Gema and Nyakinyua at Gilgil to be sold and proceeds shared equally among the beneficiaries
- 6.Funds in KCB Nakuru, National Bank, Grindlays Bank and other institutions to be ascertained and verified by the Deputy Registrar, High Court Nakuru, and shared equally among the identified units
- 7.Individual plots allocated to each household unit (Block 7/492 to 7/549 as listed)
- 8.Litigation costs over estate property and administrators' costs to be ascertained and strictly proved, and paid as third-party liabilities
- 9.Transfer fees and costs of transfer to be met by each individual beneficiary
- 10.Winding up of the estate to be under the supervision of the Deputy Registrar, High Court Nakuru, and the Resident Judge in Nakuru
- 11.Liberty to apply
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- Nakuru H.C. Succ. Cause No. 96 of 2000
- Jurisdiction invoked
- Article 164(3) of the Constitution 2010; section 3 of the Appellate Jurisdiction Act Cap 9; section 78 of the Civil Procedure Act Cap 21; rule 29(1) of the Court of Appeal Rules
- Consolidated with
- Civil Appeal No. 222 of 2009 (Elizabeth Wanjira Evans v Christine Wangare Gachigi & others, with cross-appeal by Mercy Wanjiru Mburu, Agnes Waitakwa, Lucy Muthoni and Jane Nyambura)
Relief refused
#Confirmation of the trial Judge's distribution as originally made (which excluded the three married daughters and treated grandchildren as direct units)
The court redistributed the estate, rerouting grandchildren through their deceased parents' household units and restoring the excluded daughters
Christine's claim to the homestead on Block 7/491
The homestead parcel was shared equally among all household units, with Elizabeth to inherit the deceased's homestead
Remission of the matter back to the High Court
The court found the protracted litigation demanded final determination in the appellate forum
Costs
Being succession proceedings each party was ordered to bear own costs (as ordered by the trial Judge); the Court of Appeal made no separate costs order in the judgment.
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.
There will be liberty to apply if need be.
Court Supervision. This is necessary for the progression of the winding up of the Estate. To be supervised by the Deputy Registrar High Court, Nakuru and the Resident Judge in Nakuru.
Incidentals i.e transfer fees and costs of transfer of property from the Estate to the beneficiaries. These to be met by each individual beneficiary respectively.
Per stirpes means that the issue of a deceased child of the intestate takes between them the share their parents would have taken had the parent been alive at the intestate’s death.
Double allocations are curable. Properties so bequeathed may be held by the respective beneficiaries as tenants in common or be sold and the proceeds shared equally.
Indeed the order of 11 th September, 2004 stayed all the previous consents but as observed herein above, these were never discharged and or varied. They thus remained in situ throughout the trial.
An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled.
Issues in the judgment
#The cause heading consolidates 'CIVIL APPEAL NO. 222 OF 2009', but the body of the judgment repeatedly refers to the same appeal as 'Civil appeal Number 222 of 2007'.
The redistribution section's lettering is irregular: it runs A, B, C, E, F, G, H, I, H, K, L, M - letter 'D' is skipped and 'H' is used twice (Individual Plots and Administrators Costs).
The judgment inconsistently spells names of the same persons (e.g. 'ChristineWangarigachigi'/'Christine Wangare Gachigi'/'Christine Wangari Gachigi'; 'Gachigi'/'Gichigi'; 'Waitwika'/'Waitakwa'; 'KTX 154' vs 'KTX 151' for the Nissan lorry).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gachigi & another v Evans & 11 others; Mburu & 3 others (Cross Appellant) (Civil Appeal 221 of 2007) [2014] KECA 150 (KLR)", Case Analysis (2014). Civil Appeal No. 221 of 2007 (as consolidated with Civil Appeal No. 222 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/150/eng@2014-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.