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Court of AppealDismissedCivil Appeal No. 377 of 2014· [2016] KECA 336 (KLR)

David Brown Kipkorir Chebii v Rael Chebii [2016] KECA 336 (KLR)

Court of Appeal of Kenya
29 July 2016
SKS. Gatembu KairuAMA. K. MurgorFSF. Sichale
2,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed Kenyan courts can revoke a succession grant where an administrator hides a deceased's wife and other beneficiaries from the court.

What this practically means

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Executive summary

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The appellant, son of the deceased Chebii Kimang'et, petitioned successfully for letters of administration intestate in 1990, disclosing only one asset (Plot 280 Elgeyo Border Scheme) and describing the respondent, Rael Chebii, merely as a 'relative.' The grant was confirmed in 1992 naming him sole heir, after which he transferred the property to himself and subdivided it. In 2004 the respondent sought revocation of the grant, claiming she had married the deceased under Keiyo customs in 1979 and that the appellant had concealed material facts. After a viva voce hearing before three successive judges, Mshila J found the respondent was a wife and dependant of the deceased, that the appellant had failed to disclose her and other dependants, and revoked the grant, ordering a fresh grant in the joint names of the appellant and respondent and deferring distribution. On appeal, the Court of Appeal, applying Selle v Associated Motor Boat Co and the Mbogo v Shah discretion standard, reviewed the evidence and found the trial judge's factual findings amply supported: the appellant's own petition affidavit described the respondent as a beneficiary, his claim that she was a maid was rejected on sound basis, and evidence showed she bore children with the deceased. The court affirmed the revocation, the joint grant and the deferral of distribution, dismissed the appeal with costs, and left distribution to await confirmation of the joint grant.

Key legal issues

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01

Revocation of a grant of letters of administration for concealment of material facts under Section 76 of the Law of Succession Act

Holding

A grant obtained by failure to disclose dependants and beneficiaries - here the respondent as a customary-law wife and her children - is properly revoked

Reasoning

The trial judge found as a fact that the respondent was a wife and dependant of the deceased and that the appellant had concealed this and the existence of other dependants in his petition. The appellate court, reviewing the evidence afresh, found this conclusion well supported: the appellant had described the respondent as a 'relative' in his petition affidavit, his later claim that she was a maid was rejected on sound basis, and the testimony of his witnesses appeared choreographed. Exercise of the judge's discretion could not be faulted on any of the established grounds for appellate interference.

p. 4
02

Whether the trial judge was right to defer distribution of the estate until confirmation of the joint grant

Holding

Yes - deferring distribution until an application for confirmation of the joint grant is made was proper

Reasoning

The court held that the judge correctly allowed the joint administrators time to reach consensus on distribution, failing which either party could apply for confirmation of the joint grant and distribution. This preserved the orderly administration of the estate and did not prejudice the appellant, whose complaint prematurity was thus misconceived.

p. 4

Legal principles established

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  • An appellate court interferes with the exercise of judicial discretion only where the judge misdirected herself in law, misapprehended the facts, took into account extraneous considerations, failed to take into account relevant considerations, or where the decision is plainly wrong
  • A first appellate court is entitled to review the evidence and draw its own conclusions

Court orders

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  1. 1.Appeal dismissed
  2. 2.Order revoking the grant of letters of administration issued to the appellant and the order for a fresh grant in the joint names of the appellant and the respondent affirmed
  3. 3.Appellant to pay the respondent's costs

Authorities

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Legislation

  • Law of Succession ActSection 76

Cases cited (2)

  • Selle v Associated Motor Boat Co Ltd
    [1968] EA 123
  • Mbogo & Another vs. Shah
    [1968] E.A. 93
On appeal from
High Court of Kenya at Eldoret
H.C. P&A No. 137 of 1990
Jurisdiction invoked
First appellate jurisdiction over the High Court (succession appeal), the decision below having been made under Section 76 of the Law of Succession Act

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, "David Brown Kipkorir Chebii v Rael Chebii [2016] KECA 336 (KLR)", Case Analysis (2016). Civil Appeal No. 377 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/336/eng@2016-07-29

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