Chebet Kimugai v Margaret Chepkiror Charito [2017] KECA 158 (KLR)

Court of Appeal

16 November 2017

EGE. M. Githinji HOHannah Okwengu JMJ. Mohammed

2,822 words in judgment

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The bottom line

Kenya's Court of Appeal revoked an inheritance grant obtained by hiding that the land was held in trust for the whole family.

What this practically means

Executive summary

The Court of Appeal at Eldoret allowed the appellant's appeal against a High Court ruling that dismissed her application to revoke a grant of letters of administration issued to the respondent, the widow of the deceased, over the estate of Julius Charito Lopor, whose only listed asset was parcel WestPokot/Siyoi/288. The appellant contended the property originally belonged to her father, Kimugai Kiptum, who adopted the deceased; the property was fraudulently registered in the joint names of the deceased and Sangara Chepgat after Kimugai Kiptum's death during the adjudication process. The Court, as a first appellate court, re-evaluated the evidence and found the property originally belonged to Kimugai Kiptum, whose daughters had long occupied and used part of it. It held the trial judge misdirected himself by confusing objection proceedings on confirmation under section 71 with revocation proceedings under section 76 of the Law of Succession Act, and failed to address whether the property was the deceased's free property. The Court found the deceased held the property in trust for himself and the other children of Kimugai Kiptum, and that the respondent obtained the grant by concealment of material information. Because the property was registered in the deceased's and Sangara Chepgat's names as proprietors in common, only the deceased's half undivided share could form his estate. The Court revoked the grant, directed that a fresh grant issue in the joint names of the respondent and the appellant to facilitate distribution, and made no order as to costs, being a family dispute.

Key legal issues

Scope of revocation of grants under section 76 of the Law of Succession Act

Holding

A grant obtained by concealment of material information, namely that the sole listed asset was not the deceased's free property but trust property, must be revoked.

Reasoning

The trial judge confused objection proceedings on confirmation under section 71 with revocation proceedings under section 76 and misapprehended the dispute. The evidence showed the property originally belonged to Kimugai Kiptum, who died before adjudication was finalized, and the deceased and another were registered without him initiating it. The deceased held the property in trust for himself and the other children of Kimugai Kiptum; the respondent obtained the grant by concealing that material fact.

p. 4

Extent of the deceased's interest in the suit property

Holding

The deceased held only a half undivided share as proprietor in common, so the whole property could not form his estate.

Reasoning

The certificate of official search and the evidence of the Deputy Lands Officer confirmed the property was registered in the names of the deceased and Sangara Chepgat as proprietors in common. Only the deceased's half undivided share could pass through his estate, with the other children of Kimugai Kiptum entitled to their shares.

p. 5

Legal principles established

A first appellate court must re-evaluate and re-assess the evidence, deferring to trial findings unless unsupported by evidence or based on wrong principles.
In revocation proceedings under section 76, the critical question is whether the listed asset formed part of the deceased's free property, and a grant obtained by concealment of material information about the estate must be revoked.

Court orders

1.Appeal allowed
2.Grant of letters of administration for the estate of the deceased issued to the respondent revoked
3.High Court directed to issue a grant of letters of administration for the estate of the deceased in the joint names of the respondent and the appellant to facilitate distribution of the suit property
4.Any other dispute relating to the distribution of the suit property to be resolved in the Succession Cause in the High Court
5.No orders as to costs, this being a family dispute

Authorities

Legislation

Constitution of KenyaArticle 40
Law of Succession ActSection 76
Law of Succession ActSection 71

Cases cited (5)

Jabane –vs- Olenja
[1986] KLR 661
Peters –vs- Sunday Post
[1958] EA 424
Ephantus Mwangi –vs- Duncan Mwangi Wambugu
(1982-88) 1 KAR 278
Mwana Sokoni –vs- Kenya Bus Service
(1982-88) 1 KAR 870
Re-Kibiego
(1972) EA 179

On appeal from: High Court at Kitale; Succession Cause No. 35 of 2002
Jurisdiction invoked: First appellate jurisdiction over an appeal from the High Court ruling in a succession cause (Law of Succession Act framework; no specific provision cited)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Chebet Kimugai v Margaret Chepkiror Charito [2017] KECA 158 (KLR)", Case Analysis (2017). Civil Appeal No. 49 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/158/eng@2017-11-16

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