Alice Sebi Minayo v Mary Grace Ayugu
The bottom line
#Kenya's Court of Appeal ruled no one can be evicted from estate property before a succession grant is made and distribution decided, and late cross-appeals fail.
What this practically means
#Executive summary
#Key legal issues
#Competency of a cross-appeal filed out of time without leave
The cross-appeal was incompetent and was struck out.
Rule 93 of the Court of Appeal Rules fixes a thirty-day period, running from service of the memorandum or record of appeal (whichever is later), within which a respondent must file a notice of cross-appeal. The respondent's notice was filed over a year after the appeal and admittedly without leave, so the court could not entertain it and struck it out as incompetent.
Premature eviction order in succession objection proceedings
The learned Judge erred by deciding an issue not before him; eviction could not be ordered before the grant of administration and distribution of the estate.
The matter before the High Court was an objection to a grant and a cross-petition for joint administration; no grant had been made. Having determined who was entitled to administer the estate, the Judge should have directed the administratrix to file and serve an application for distribution, where entitlement to the suit property would fall to be determined. Ordering eviction at that stage was premature and an error.
Status of the appellant's children as dependants of the deceased
The ground challenging the finding that the children were not dependants failed; they were adults, took no part in the objection proceedings and were not parties to the appeal.
The children were adults at the time of the objection hearing. Since they neither participated in the objection proceedings nor were parties to the appeal, the appellant had no basis to challenge the finding on their behalf, and the ground was dismissed without touching the merits of dependency.
Legal principles established
#- A respondent desiring to contend that a decision should be varied or reversed must file a notice of cross-appeal within thirty days of service of the memorandum or record of appeal, whichever is later; a cross-appeal filed out of time without leave is incompetent.
- In objection proceedings to a grant of letters of administration, a judge cannot order eviction of an occupant from estate property before a grant has been made and distribution determined; the question of entitlement to estate property falls for determination at distribution.
Court orders
#- 1.The respondent's notice of cross-appeal is struck out as incompetent for having been filed out of time without leave
- 2.The appeal is allowed in part
- 3.The learned Judge's order directing the eviction of the appellant from the suit property is set aside
- 4.The respondent is directed to apply for, and serve upon the appellant, an application for the distribution of the deceased's estate
- 5.The appellant shall continue residing on the suit property until determination of the distribution application and a finding as to who is entitled to it
- 6.Each party bears its own costs
- On appeal from
- High Court of Kenya at Kakamega
- H.C. Succession Cause No. 133 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (appellate jurisdiction over High Court decisions); no constitutional provision cited.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alice Sebi Minayo v Mary Grace Ayugu", Case Analysis (2015). Civil Appeal No. 24 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/38/eng@2015-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.