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Court of AppealPartially AllowedCivil Appeal No. 8 of 2015· [2015] KECA 399 (KLR)

Francis Mwangi Thiong’o & 4 others v Joseph Mwangi Thiong’o [2015] KECA 399 (KLR)

Court of Appeal of Kenya
30 September 2015
1,936 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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In Kenyan succession law, only a wife who survives the deceased counts when dividing a polygamous estate, and daughters inherit equally with sons.

What this practically means

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Executive summary

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This is a first appeal from the High Court at Murang'a (Ngaah Jairus, J.), which had confirmed a grant of letters of administration over the intestate estate of the polygamous David Thiong'o on the basis of a 50:50 distribution between his two houses. The appellants, members of the second house, contended that the learned judge misinterpreted Section 40(1) of the Law of Succession Act by counting the predeceased first wife as a unit, and further argued that the daughters had renounced their shares and that the deceased had wished his land to pass to his sons only. The Court of Appeal allowed the first ground, holding that under Section 40(1) only a wife surviving the deceased is an additional unit, the Section 3 definition of 'house' being merely descriptive and not distributive; the estate should therefore have been divided between the houses in the ratio 4:5. The second ground failed for want of evidence of renunciation, and the third was rejected as anachronistic and discriminatory, the Court reaffirming the equality of all children regardless of gender. The appeal succeeded in part: the confirmation of the grant was upheld but its terms were set aside and substituted with orders distributing the parcel LOC.20/KAMBIRWA/477 between the houses in the ratio 4:5, equal shares within each house, and a life interest for the surviving second-house widow. Each party was ordered to bear their own costs of the appeal. The judgment also contains an admonition to counsel to bring greater industry to appellate advocacy.

Key legal issues

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01

Effect of a predeceased wife on unit-counting under Section 40(1) of the Law of Succession Act

Holding

The High Court erred by including the predeceased first wife as a unit; only a surviving wife counts as an additional unit, so the first house had four units and the second five, requiring a 4:5 division.

Reasoning

Section 40(1) expressly provides that a surviving wife is added as an additional unit to the number of children. A predeceased wife cannot be a unit because the provision addresses succession and survivorship and a surviving spouse's life interest under Sections 35-37 is co-terminus with life. The Section 3 definition of 'house' is merely descriptive and not distributive, and does not alter the express wording of Section 40(1).

p. 3
02

Alleged renunciation by the daughters of their entitlement to the estate

Holding

The ground failed; there was no evidence of renunciation, and even a voluntary choice by some daughters not to inherit would not affect the rights of the other children entitled to a share.

Reasoning

In a first appeal the Court re-hears the evidence and examines the record afresh while warning itself that it neither saw nor heard the witnesses. On such an independent review, the Court agreed in full with the trial judge's finding that no renunciation was proved and that any such choice by some daughters should not defeat the entitlement of the remaining children.

p. 3
03

Whether the deceased's alleged wishes to exclude daughters could prevail

Holding

The Court cannot endorse gender-based exclusion of daughters; the Law of Succession Act does not discriminate between male and female children, and a discriminatory testamentary intent, even if established, would be overridden under the law and the Constitution.

Reasoning

The contention that daughters should be excluded is anachronistic and discriminatory. The Court reaffirmed its jurisprudence that a child is a child regardless of gender or circumstances of birth, drawing on Rono v Rono under the retired Constitution and the equality principles of the Constitution of Kenya 2010. The alleged written note of the deceased's intention was not established on the record, and the petition proceeded throughout on the basis of intestacy.

p. 4
04

Duty of counsel on appeal

Holding

Counsel must put greater effort into prosecuting or defending appeals, including preparation, study and citation of statutory and judicial authority.

Reasoning

The Court lamented that counsel merely relied on the memorandum of appeal grounds without argument. It stated that preparation, study, citation of authority and persuasive urging are the basic minimum expected, and that less is a disservice to the Court, litigants and the public. This is an exhortation rather than a ratio determining the appeal.

p. 2

Legal principles established

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  • Under Section 40(1) of the Law of Succession Act, only a wife surviving the deceased is counted as an additional unit to the children of a house; a wife who predeceased the deceased is not a unit, and the Section 3 definition of 'house' is merely descriptive, not distributive.
  • In a polygamous intestacy, the estate is first divided among houses in proportion to the number of children in each house (adding any surviving wife as an additional unit), and each house's portion is then distributed under Sections 35 to 38 of the Act.
  • Daughters cannot be excluded from a deceased's intestate estate on grounds of gender; the Law of Succession Act and the Court's jurisprudence guarantee equality of all children.

Court orders

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  1. 1.The parcel LOC.20/KAMBIRWA/477 shall be divided between the first and the second houses in the ratio of 4:5
  2. 2.Joseph Mwangi Thiong'o, Margaret Wanjiku Mwangi, Jane Gitiko and Eunice Muthoni Waweru shall have equal shares in the portion allocated to the first house
  3. 3.Esther Mwithaga Thiong'o, Francis Mwangi Thiong'o, Jecinta Wanjiku Thiong'o, Paul Waithaka Thiong'o and Samuel Muiruri Thiong'o shall have equal shares in the portion allocated to the second house
  4. 4.Esther Mwithaga Thiong'o shall hold a life interest in the portion to be allocated to her
  5. 5.Each party to bear their own costs of the appeal

Authorities

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Legislation

  • Law of Succession Act Cap 162Section 40(1)
  • Law of Succession Act Cap 162Section 40(2)
  • Law of Succession Act Cap 162Section 3 (definition of 'house')
  • Law of Succession Act Cap 162Sections 35 to 38
  • Court of Appeal RulesRule 29
  • Constitution of Kenya 2010
  • Retired Constitution of Kenyaprohibition of discrimination on grounds of sex

Cases cited (4)

  • Musa Imbiakha v Khayanga Imbiakha
    [2015] eKLR
  • Mwongera Mugambi Runturi & Anor v Josephine Kaarika & 2 Others
    [2015] eKLR
  • Rono v Rono
    [2005] 1 EA 363
  • Grace Wachuka v Jackson Njuguna Gathungu
    [2014] eKLR 100
On appeal from
High Court of Kenya at Murang'a
H.C. Succession Cause No. 338 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court in a succession cause (appellate jurisdiction over the High Court, Court of Appeal Rules, and Rule 29 Court of Appeal Rules engaged for the re-hearing)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis Mwangi Thiong’o & 4 others v Joseph Mwangi Thiong’o [2015] KECA 399 (KLR)", Case Analysis (2015). Civil Appeal No. 8 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/399/eng@2015-09-30

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