Beatrice Makokha China v Stanley Kachemulo [2016] KECA 364 (KLR)
The bottom line
#The Court of Appeal confirmed you only inherit a deceased person's share of jointly owned land, not the whole parcel, and Beatrice lost her appeal with costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Stanley held any interest in the subject land and if so what
- 2.Whether the trial court rightly entertained a suit filed against a succession cause
- 3.Whether the suit was based on Luhya customary law
- 4.Whether the courts below rightly ordered that the title of the subject land reverts to the names of the three proprietors
Key legal issues
#Scope of a second appeal under section 72 of the Civil Procedure Act
On a second appeal, this Court considers only matters of law and will not disturb concurrent findings of fact by the two lower courts that are supported by evidence.
Section 72(1) of the Civil Procedure Act confines second appeals to grounds of law. The Court endorsed the Kenya Breweries principle that it must resist the temptation of delving into matters of fact. Both the trial court and the High Court had concurrently found, on the certificate of search, that the three named persons were proprietors in common; those findings were supported by evidence, leaving the second appeal court no basis for interference.
Effect of registration of jointly owned land following the death of one proprietor in common
On the death of one proprietor in common, only that proprietor's undivided share is administered as part of his estate; the transfer of the entire land to the administrator was unlawful, and the reversion order merely restored the register to its original status.
Section 103 of the Registered Land Act (repealed) provided that where land is owned in common, each proprietor is entitled to an undivided share and on death his share is administered as part of his estate. Beatrice, as administrator of Okomolote's estate, was entitled at most to his one-third share; the other two-thirds belonged to the living proprietors Dickson and Stanley. By registering the entire land in her name, she did not comply with that provision, and the courts below correctly ordered reversion to the original proprietors.
Incomplete record of appeal and unargued issues
Where the record omits subsequent trial proceedings, the Court can determine only the ownership question on the available evidence and cannot address other issues raised.
The Court found that all the subsequent proceedings of the trial court were not included in the record, constraining it to consider only the evidence available and the findings in the lower courts' judgments. It therefore declined to determine whether the trial court could entertain a suit touching a succession cause, or whether Luhya customary law applied, while remaining satisfied that the ownership issues were correctly determined.
Legal principles established
#- On a second appeal to the Court of Appeal, the Court confines itself to matters of law and will not interfere with concurrent findings of fact by the two courts below unless it is shown they considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- Under section 72(1) of the Civil Procedure Act, an appeal lies to the Court of Appeal from a decree passed in appeal by the High Court only on grounds of a decision contrary to law, failure to determine a material issue of law, or substantial procedural error.
- Where land is owned in common, on the death of a proprietor only his undivided share forms part of his estate and is capable of transmission; an administrator cannot validly register the entire property in his or her own name.
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court at Busia
- H.C.C.C. No. 2 of 2005
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal to the Court of Appeal on matters of law)
Relief refused
#Appellant's prayer to set aside or vary the High Court judgment cancelling her title and ordering reversion of the subject land to the three original proprietors
The appeal lacked merit; there were concurrent findings of fact supported by evidence which a second appeal court cannot disturb, and the transfer contravened section 103 of the Registered Land Act (repealed)
Determination of whether the trial court rightly entertained a suit filed against a succession cause
The record of appeal was incomplete, the subsequent trial proceedings not having been included
Determination of whether the suit was based on Luhya customary law
The record of appeal was incomplete, preventing the court from addressing this issue
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that we find that the appeal lacks merit and is hereby dismissed with costs to the respondent.
There are concurrent finding of fact by the courts below that the three proprietors were the owners of the subject land. These findings are supported by evidence. We have no basis for interfering with the findings.
Where any land, lease or charge is owned in common, each proprietor shall be entitled to an undivided share in the whole, and on the death of a proprietor his share shall be administered as part of his estate.
By ordering that the subject land reverts to the initial names of the proprietors, the courts below merely sought to restore the register to the original status.
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
Issues in the judgment
#The judgment is uncertified as an official version in one respect: it is a Deputy Registrar certified true copy, and the body contains inconsistent spellings of the same names, e.g. 'Beatrice Mokakha China' in the opening paragraph versus 'Beatrice Makokha China' in the caption, and 'Okolomote' versus 'Okomolote' in the holdings.
The record of appeal was incomplete - the trial court's subsequent proceedings were missing - yet the Court nonetheless dismissed the appeal on the ownership issue without addressing two of the four issues it had framed for determination.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Beatrice Makokha China v Stanley Kachemulo [2016] KECA 364 (KLR)", Case Analysis (2016). Civil Appeal No. 359 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/364/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.