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Court of AppealDismissedCivil Appeal No. 8 of 2013· [2015] KECA 419 (KLR)

Timina Ndavola Afundi v Festus Afundi [2015] KECA 419 (KLR)

Court of Appeal
25 September 2015
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
1,825 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that when there is no surviving spouse, a deceased person's estate goes to the children, who may agree to share it unevenly.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Kisumu against a ruling of Chitembwe, J. of the High Court at Kakamega dated 7th February 2013 in Kakamega Succession Cause No. 39 of 1997. The dispute concerned distribution of a 12-acre parcel, Kakamega/Lumakanda/147. The land had been allocated in 1960 by the Settlement Fund Trustee, changed hands unlawfully, and in 1968 was sold to the respondent's father (the deceased), who died intestate in 1986. The respondent obtained and confirmed a grant in 1998/1999, selling portions of the land to fund litigation and to redeem the title from the Settlement Fund Trustee. The appellant, the deceased's former wife divorced in 1965, applied in 2010 to set aside and vary the confirmed grant and have the estate redistributed, alleging the respondent took the lion's share and sold land to strangers. The High Court dismissed her application and distributed the land according to the respondent's proposal, including shares for purchasers. The appellant appealed, contending mainly that section 35 of the Law of Succession Act required equal distribution. The Court of Appeal held that section 35 did not apply since the appellant was not a surviving spouse; the estate devolved under section 38 upon the children equally, but the children - none of whom objected - were free to agree on a different mode of sharing. The court further held that a divorced former spouse had no capacity to institute the application, and that the distribution, which honoured the purchasers whose money redeemed the land, was fair and equitable. The appeal was dismissed in its entirety, with each party bearing its own costs. The decision binds subordinate courts and the High Court on the application of sections 35 and 38 of the Law of Succession Act in comparable circumstances.

Key legal issues

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01

Whether section 35 of the Law of Succession Act applied to require equal distribution

Holding

Section 35 was inapplicable because the appellant was divorced from the deceased in 1965; the estate devolves under section 38 among the children.

Reasoning

Section 35(1) grants a surviving spouse a life interest with the estate held in trust for children, devolving equally on the children under section 35(5) on the spouse's death. But that regime presupposes a surviving spouse. Since the deceased divorced the appellant in 1965 and she returned only after his demise, the case fell under section 38, where children take equally but may agree otherwise. None of the children objected to the proposed distribution.

p. 4
02

Whether the purchasers of portions of the estate land should be included in the distribution

Holding

The purchasers were lawfully included because their money enabled the respondent to redeem the land from the Settlement Fund Trustee.

Reasoning

The respondent sold portions to raise funds to finance suits over the land and to clear the SFT loan, thereby procuring title. The court found the distribution equitable and fair, protecting each purchaser's rightful share, whereas the appellant wished some purchasers excluded yet had not participated in the efforts that saved the land.

p. 4
03

Whether the mode of distribution ordered by the High Court should be disturbed

Holding

It should not; the distribution was fair and equitable and the respondent did not take a lion's share.

Reasoning

The respondent received 1.03 acres, the same as one brother, with other brothers receiving slightly smaller shares of 0.85 acres. The judge had found the proposed distribution fair and the respondent had not sold land for personal benefit. The appellate court agreed the distribution should not be disturbed.

p. 4

Legal principles established

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  • Where an intestate is survived by children but no spouse, the net intestate estate devolves upon the children and should be divided equally among them, but the children may agree among themselves on a different mode of sharing.
  • A divorced former spouse of a deceased person has no capacity to institute proceedings for redistribution of the deceased's estate.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Law of Succession Actsection 35(1)
  • Law of Succession Actsection 35(5)
  • Law of Succession Actsection 38
On appeal from
High Court of Kenya at Kakamega
H.C. Succ. Cause No. 39 of 1997
Jurisdiction invoked
First appellate jurisdiction under the Law of Succession Act and the Appellate Jurisdiction Act (succession appeal from High Court ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Timina Ndavola Afundi v Festus Afundi [2015] KECA 419 (KLR)", Case Analysis (2015). Civil Appeal No. 8 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/419/eng@2015-09-25

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