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Court of AppealPartially AllowedCivil Appeal No. 211 of 2012· [2015] KECA 650 (KLR)

Elizabeth Chepkoech Salat v Josephine Chesang Chepkwony Salat [2015] KECA 650 (KLR)

Court of Appeal of Kenya
12 June 2015
EGE.M. GithinjiDMD.K. MusingaJMJ. Mohammed
9,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that polygamous estates must be divided strictly by the statutory formula counting children per house, not by a judge's personal sense of fairness.

What this practically means

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Executive summary

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This Court of Appeal judgment (Githinji, Musinga and J. Mohammed, JJ.A.) allowed in full an appeal by Elizabeth Chepkoech Salat against the High Court's confirmation and distribution of the intestate estate of Isaac Kipkorir Arap Salat, a polygamous deceased who left two widows - Elizabeth with nine children and Josephine with four - and set aside the judgment of Kimaru, J. delivered on 4th February 2011 in Succession Cause No. 299 of 1992, consolidated with H.C. Misc. Cause No. 44 of 2005. The Court held that Ngata farm, though registered in Josephine's name and allocated after the death, was a posthumous gift to the estate to be taken into hotchpot in distribution. It set aside the High Court's award of shs. 10,000,000 to Josephine as reimbursement of school fees, finding it was unproved compensation for lost opportunities rather than actual expenditure. It further held that the High Court erred in qualifying the mandatory statutory distribution formula in section 40 of the Law of Succession Act by applying its own notion of equity and in relying on the deceased's alleged 'wishes' recorded in an unattested document, which could not take effect as a will. Substituting its own distribution scheme on the basis of the 10:5 ratio of units between the two houses, with adjustments for lifetime settlement of Siwot farm on Elizabeth and hotchpot for Ngata farm, the Court set aside the High Court judgment, cancelled Josephine's sole registrations of two plots, and made no orders as to costs of the appeal.

Key legal issues

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01

Whether Ngata farm forms part of the estate

Holding

Though not legally part of the estate, the farm was a posthumous gift to the estate for settlement of Josephine and must be taken into hotchpot in distribution, with her three children inheriting it as agreed before the clan elders

Reasoning

The Court presumed from human conduct, under section 119 of the Evidence Act, that the family and the former President intended the allocation as a gift to the estate. Josephine signed clan elder resolutions twice agreeing Ngata be distributed to her three children. Her payment of shs. 90,000 was probably a mistaken demand; any genuine payment entitled her only to a refund. The judge misdirected himself in excluding it from the second house's final share.

p. 8
02

Validity of the refund of shs. 10,000,000 for school fees

Holding

The award was set aside as it was compensation for lost opportunities rather than proved actual expenditure, unproved on the evidence and contrary to the Act's policy of expeditious administration

Reasoning

The judge neither analysed the evidence nor found that Josephine actually spent her own money on school fees; she did not account for estate income received, including proceeds of the Karen and Kiambu Road plots. Liabilities incurred through breach of the Act's administration timelines should not be visited on the estate.

p. 10
03

Whether the High Court could apply its own equitable scheme instead of section 40(1)

Holding

The High Court erred by qualifying the full vigour of section 40(1); in a contentious intestacy the statutory formula of distribution per house by number of children plus a surviving wife as an additional unit is mandatory

Reasoning

The parties' rival proposals never crystallised into a consent judgment and carry little weight. The first house had ten units and the second five, so distribution should follow the 10:5 ratio, with limited adjustments for property settled by the deceased during his lifetime (Siwot farm) and hotchpot for Ngata farm, and equal sharing only where impracticable to apply the formula.

p. 12
04

Effect of the deceased's alleged 'wishes' document

Holding

The unattested document dated 17th November 1987 was not a will capable of taking effect; the deceased died intestate and his alleged wishes could not be taken into account

Reasoning

An oral will requires two competent witnesses under section 9(1)(a), and a written will attestation by two or more competent witnesses under section 11. The cause was properly prosecuted as an intestate petition. Reliance on the 'wishes' was therefore an error of law.

p. 11

Legal principles established

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  • Where an intestate was polygamous, the estate must in the first instance be divided among the houses according to the number of children in each house plus a surviving wife as an additional unit, taking into account any previous benefit to any house
  • Section 40 of the Law of Succession Act confers no discretion on a court to substitute the statutory principles of distribution for its own notion of equity in contentious, non-consensual cases
  • A property acquired after the deceased's death but gifted to the estate for settlement of a beneficiary is taken into hotchpot in distribution
  • The wishes of a deceased person can only be given effect through a valid written or oral will or lifetime settlement; an unattested document cannot found distribution in intestacy

Court orders

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  1. 1.Judgment and orders of the High Court set aside and substituted with the Court of Appeal's own scheme of distribution of the estate
  2. 2.LR 6055/9 (Sotik farm): 110.33 acres to Elizabeth and 32.67 acres to Josephine, each holding a life interest and in trust for her children in equal shares
  3. 3.LR Kericho/Ndubai/113 (Siwot farm) to Elizabeth, holding a life interest and in trust for her nine children
  4. 4.Kericho/Olokyin/62 (Mulot farm): 6.67 acres to Elizabeth and 3.33 acres to Josephine
  5. 5.LR No. 7288/272 (Club 181 farm): one acre with developments excised and registered in the two widows' names in equal shares; remaining 8 acres distributed 5.33 acres to Elizabeth's house and 2.67 acres to Josephine's house
  6. 6.LR No. 630/1036 Kericho Town Commercial Plot: registration of Josephine as sole proprietor cancelled; to be registered in the two widows' names as tenants in common in equal shares
  7. 7.LR No. 631/1075 Kericho residential plot: registered in the two widows' names as tenants in common in equal shares
  8. 8.LR No. 8939/43 (Bomet plot): registration of Josephine as sole proprietor, if any, cancelled; to be registered in the two widows' names as tenants in common in equal shares
  9. 9.LR No. 13287/35 (Ngata farm): registration of Josephine on her own behalf and holding a life interest and on behalf of her four children in equal shares
  10. 10.LR No. 209/10223 Nairobi Industrial Plot to be sold; proceeds applied to pay land rent, rates and liabilities; refund of shs. 96,000 to Josephine for Ngata farm payments; refund of shs. 1,500,000 to Josephine as her share of money appropriated from the estate; balance shared between the houses in the ratio 10:5
  11. 11.Cattle to be distributed as ordered by the High Court
  12. 12.No orders as to costs of this appeal
  13. 13.Contingent order: if Josephine has sold the Kericho Commercial plot and Bomet plot, Elizabeth to be registered as proprietor of Club 181 farm and Kericho residential plot to the exclusion of Josephine

Authorities

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Legislation

  • Law of Succession Actsection 2(1)
  • Law of Succession Actsection 3(1)
  • Law of Succession Actsection 9(1)(a)
  • Law of Succession Actsection 11(c)
  • Law of Succession Actsection 26
  • Law of Succession Actsections 27 and 28
  • Law of Succession Actsection 32
  • Law of Succession Actsection 34
  • Law of Succession Actsection 35
  • Law of Succession Actsection 40(1) and (2)
  • Law of Succession Actsection 42
  • Law of Succession Actsection 71
  • Law of Succession Actsection 83(e) and 83(9)
  • Evidence Actsection 119
  • Court of Appeal Rulesrule 94(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (2)

  • Mary Rono v. Jane Rono & Another
    Civil Appeal No. 66 of 2002 (Eldoret) [2005] eKLR
  • Catherine Nyaguthii Mbauni v Gregory Maina Mbauni
    Civil Appeal No. 34 of 2004 (Nyeri) [2009] eKLR
On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 299 of 1992
Jurisdiction invoked
First appeal from the High Court in a succession cause under the Law of Succession Act (appeal as of right; no specific constitutional provision invoked)

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, "Elizabeth Chepkoech Salat v Josephine Chesang Chepkwony Salat [2015] KECA 650 (KLR)", Case Analysis (2015). Civil Appeal No. 211 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/650/eng@2015-06-12

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