Trilchan Singh Jandu v Amarjet Singh Jandu & another [2017] KECA 207 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a child cannot be excluded from a parent's estate without solid proof they already received their share during the parent's lifetime.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in excluding the appellant from the distribution of the estate on the basis of unproven inter vivos benefits
The respondents failed to prove on a balance of probability that the deceased assisted the appellant to purchase the London house or advanced him substantial loans; those were mere allegations that could not justify excluding the appellant from a share of the estate.
The respondents asserted that the deceased bought the appellant a London house and advanced him colossal sums, but produced no documented transfers. The appellant denied the claims and produced his own purchase documents. The court held that mere statements of fact, contradicted and unsupported by conclusive documents, cannot form the basis for disinheriting a child. The trial judge's contrary finding was not supported by the evidence.
Whether the estate, being distributed under intestacy, must be shared equally among the three children
Since the purported 'Will' was never propounded and the matter was determined under intestacy, Section 38 required equal division among the surviving children; to achieve equity, the appellant was entitled to a share of the Parklands property.
All parties accepted the trial directions and led evidence on distribution without propounding the Will, rendering it irrelevant. Under Section 38 the net intestate estate devolves equally on the surviving children. The appellant had already received the Enterprise Road property and the 2nd respondent had received assistance with a London house, so the court varied the distribution to give each child a share of the Parklands property rather than leaving the appellant out entirely.
The scope of the court's duty on a first appeal
A first appeal is by way of retrial: the court must reconsider and evaluate the evidence itself and draw its own conclusions, while allowing for the fact that it did not see or hear the witnesses.
Adopting the classic statement of Sir Clement de Lestang VP in Selle v Associated Motor Boat Company, later approved in Jivanji v Sanyo Electrical Company Ltd, the court exercised its retrial jurisdiction to re-evaluate the evidence on the alleged inter vivos benefits and reached its own conclusions, departing from the trial judge's findings of fact.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.
- Property given to or for the benefit of a child by an intestate during his lifetime must be brought into account in determining that child's share of the net intestate estate (Section 42, Law of Succession Act).
- Where an intestate leaves surviving children but no spouse, the net intestate estate is divided equally among the surviving children (Section 38, Law of Succession Act).
- A party asserting that another beneficiary received prior benefits or advances bears the burden of proving those facts, and uncorroborated allegations cannot form the basis of excluding a beneficiary.
Court orders
#- 1.The 1st respondent Amarjeet Singh Jandu is upheld as the administrator of the deceased's estate
- 2.Enterprise Road Property LR No 209/9372 to remain with the appellant Trilchan Singh Jandu
- 3.Sotik Road property LR No 37/396 to remain with the 1st respondent Amarjeet Singh Jandhu
- 4.One apartment at Parklands Property LR No. 209/2079 be transferred to the appellant Trilchan Singh Jandu (the administrator to determine which apartment)
- 5.One apartment at Parklands property LR No. 209/2079 to go to the deceased daughter Amarjeet Kaur Jandu (the apartment where the 2nd respondent was collecting rent)
- 6.The residual of Parklands property LR No 209/2079 to be transferred to the 1st respondent Amarjeet Singh Jandhu as well as any other property of the deceased
- 7.Each party to bear their own costs of the appeal and the subsequent transfers of their respective shares of property
- On appeal from
- High Court of Kenya at Nairobi, Milimani Law Courts
- Succession Cause No. 2063 of 2011
- Jurisdiction invoked
- First appellate jurisdiction over the High Court in a succession cause (Law of Succession Act regime; appeal as of right from the High Court under the Court of Appeal's appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Trilchan Singh Jandu v Amarjet Singh Jandu & another [2017] KECA 207 (KLR)", Case Analysis (2017). Civil Appeal No. 292 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/207/eng@2017-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.