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Court of AppealDismissedCivil Appeal No. 230 of 2014· [2016] KECA 15 (KLR)

Edward Kamau Mbochi v Lucy Njeri Mbochi [2016] KECA 15 (KLR)

Court of Appeal
2 December 2016
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
1,200 words in judgment
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The bottom line

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Where family members can't agree on sharing a deceased person's estate, Kenyan courts will strictly apply statutory distribution rules.

What this practically means

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Executive summary

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The appellant, Edward Kamau Mbochi, administrator of his mother's (first) house in the estate of Henry Mbochi (deceased), appealed against a High Court ruling of 27th June 2013 (W. Karanja, J) that distributed the sole estate asset, title number Kabete/Lower Kabete/140, under Section 40 of the Law of Succession Act, dividing it equally among all the children with the surviving spouse taking an equal share as a single unit. The appellant contended that the trial judge overlooked an earlier order of 29th June 2009 (Rawal, J) directing distribution according to a survey report reflecting current occupation of the parties. The deceased had been in a polygamous union with two wives and eight children; after the death of the first wife, the appellant was substituted and a joint grant issued to him and the respondent, but repeated attempts at an agreed mode of distribution failed. The Court of Appeal (Musinga, Gatembu Kairu and Murgor, JJ.A) examined the record and found no order made on 29th June 2009 or at any earlier time directing distribution; the endorsement of that date merely directed the filing of summons for confirmation prepared per the survey report, and the parties never adopted that report by consent. The Court held that the learned Judge was right, given the parties' irreconcilable disagreement, to strictly apply Section 40. The appeal was dismissed with each party bearing its own costs, having regard to the family relations between them.

Key legal issues

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01

Whether an earlier directive of 29th June 2009 was a subsisting order governing distribution of the estate

Holding

No such order existed; the 29th June 2009 endorsement merely directed the filing of summons for confirmation to be prepared as per the survey report and did not constitute a distribution order.

Reasoning

The court reviewed the entire record and found no order made on 29th June 2009 or at any prior time directing distribution. The endorsement of Rawal J provided for a survey and anticipated consent-based confirmation, but the parties never reached agreement on the surveyor's report, so it could not form the basis of a distribution order.

p. 3
02

Whether the High Court was correct to apply Section 40 of the Law of Succession Act to the estate

Holding

Yes. Faced with parties who would never agree on the mode of distribution, the judge had no choice but to apply Section 40, which governs distribution of the estate of a polygamous person dying intestate.

Reasoning

Although a survey had been ordered to reflect current occupation, subsequent proceedings showed no consensus that the survey report should form the basis of distribution. With settlement attempts exhausted, strict application of the statutory scheme for polygamous intestate estates was the correct course.

p. 3

Legal principles established

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  • Where parties to a succession cause fail to agree on a mode of distribution and there is no existing binding order on distribution, the court may strictly apply Section 40 of the Law of Succession Act to the distribution of a polygamist's intestate estate.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Law of Succession ActSection 40
On appeal from
High Court of Kenya at Nairobi
HC. Succ Cause No. 1845 of 1999 (Ruling dated 27th June 2013)
Jurisdiction invoked
First appeal to the Court of Appeal against a decision of the High Court in a succession cause (Law of Succession Act regime)

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, "Edward Kamau Mbochi v Lucy Njeri Mbochi [2016] KECA 15 (KLR)", Case Analysis (2016). Civil Appeal No. 230 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/15/eng@2016-12-02

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