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Court of AppealPartially AllowedCivil Appeal No. 183 of 2015· [2017] KECA 472 (KLR)

Catherine Wairimu Gichira v Margaret Nyokabimuchoki & 2 others [2017] KECA 472 (KLR)

Court of Appeal of Kenya
23 June 2017
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
3,476 words in judgment
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The bottom line

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Kenya's Court of Appeal reinstated a confirmed estate distribution, ruling that a claimant who consented to it years earlier could not revive her claim after 15 years of silence.

What this practically means

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Executive summary

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This Court of Appeal at Nairobi (Musinga, Gatembu Kairu and Murgor, JJ.A.) allowed an appeal against the judgment of Kimaru, J. delivered on 29th April 2014 in Succession Cause No. 1684 of 1995, which had revoked the grant of letters of administration intestate issued to the appellant, Catherine Wairimu Gichira, and Stanley Mukolwe on 14th May 2007 and confirmed on 21st September 2010. The revocation application was brought by the respondents, who alleged that the 1st respondent was the surviving customary-law widow of the deceased and that she and her two children had been concealed from and excluded by the court. The High Court accepted that a Kikuyu customary marriage existed, treated the two children as dependants under section 29(b) of the Law of Succession Act, and ordered a fresh confirmation of the grant. Allowing the appeal, the Court of Appeal held that no valid customary marriage was proved: apart from a joint affidavit and one witness's account of dowry payment, there was no evidence of the essential ceremonies, including ngurario, and the 1st respondent had consented to being described as a friend of the deceased in the original petition. The court found the 1st respondent had consented to the confirmation of the grant and the mode of distribution, receiving two properties absolutely; her nearly fifteen-year delay in complaining was inordinate and inexcusable, and none of the grounds for revocation in section 76 of the Law of Succession Act was established. The court held that any provision for the two children should have been sought by way of review of the grant rather than revocation. The High Court judgment was set aside, the certificate of confirmation of grant dated 21st September 2010 reinstated, and the respondents ordered to bear the costs of the appeal. The respondents filed no submissions and did not attend the hearing despite service. This judgment binds subordinate courts and the High Court on the burden of proving customary marriage, the consequences of inordinate unexplained delay, and the distinction between revocation and review of a confirmed grant.

Key legal issues

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01

Whether a valid Kikuyu customary marriage between the deceased and the 1st respondent was proved

Holding

The court found no valid customary marriage was proved; apart from the joint affidavit and one witness's account of dowry payment, there was no evidence of the essential ceremonies, including ngurario, and the 1st respondent had described herself only as a friend of the deceased.

Reasoning

The essentials of a Kikuyu customary marriage include the ngurario ceremony, of which there was no indication. The 1st respondent consented to being described as a friend of the deceased in Tom's petition and the eulogy made no mention of her. The joint affidavit sworn shortly before her transfer to Nairobi may have been intended to secure that transfer. The burden of proving the custom and its elements rested on the 1st respondent and was not discharged.

p. 6
02

Whether the respondents' delay of nearly 15 years in challenging the grant was excusable

Holding

The delay was inordinate and inexcusable; no reasonable explanation was offered for the failure to challenge the grant for nearly 15 years despite awareness of the succession cause.

Reasoning

The 1st respondent consented to the original petition, participated in the confirmation of the grant, and received two properties absolutely, yet waited nearly 15 years to complain. Following Allen v Sir Alfred McAlpine, once inordinate delay is established the natural inference, absent a credible excuse, is that it is inexcusable. The application for revocation may well have been an afterthought.

p. 6
03

Whether the grounds for revocation of a grant under section 76 of the Law of Succession Act were established

Holding

None of the section 76 circumstances - defective proceedings, fraud, concealment, untrue allegations, failure to administer, or the grant becoming useless - was sufficiently demonstrated to justify revocation.

Reasoning

The 1st respondent alleged the grant was obtained by concealment of her status as widow and exclusion of her children. The court found this not entirely correct: she knew she was described as a friend of the deceased, consented to the grant and its confirmation, and received two properties. No evidence showed Sharon Gathoni and Anthony Muchoki did not benefit from the share given to their mother, or that Anthony was maintained by the deceased.

p. 7
04

Whether the High Court erred in ordering fresh distribution and in granting orders not pleaded

Holding

The judge erred: the respondents had consented to the confirmation and distribution, and even if provision for the children were warranted, the right course was review of the grant, not revocation and fresh distribution.

Reasoning

The 1st respondent's claim that she had not consented to the mode of distribution was contradicted by her sworn affidavit of consent. Having consented to the confirmation and distribution and received two properties absolutely, she could not seek revocation to reopen the distribution. Any application concerning the two children should have been by way of review rather than revocation.

p. 6

Legal principles established

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  • A party who relies on customary law bears the burden of proving both the custom in question and the particular elements relied upon.
  • Where inordinate delay in instituting proceedings is established and no credible excuse is offered, the natural inference is that the delay is inexcusable.
  • A person who consented to a grant of letters of administration, its confirmation and the mode of distribution cannot obtain revocation of that grant merely to relitigate the distribution; the proper course would be an application for review of the grant.

Court orders

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  1. 1.The judgment and order of the High Court made on 29th April, 2014 are set aside
  2. 2.The certificate of confirmation of grant dated 21st September, 2010 is reinstated
  3. 3.The respondents shall bear the costs of this appeal

Authorities

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Legislation

  • Law of Succession Actsection 29(b)
  • Law of Succession Actsection 76

Cases cited (5)

  • Case v Ruguru
    [1970] E.A. 55
  • In The Matter of The Estate of Geoffrey Githu Kaboro (deceased)
    HCSC No. 2163 of 2011
  • Eliud Maina Mwangi v Margaret Wanjiru Gachangi
    CA No. 281(A) of 2003
  • Joseph Gitau Githongo v Victoria Mwihaki Munya
    [2014] eKLR
  • Allen v Sir Alfred McAlpine
    [1968] 1 All ER 543
On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 1684 of 1995
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Court of Appeal Act); appeal against judgment and order of the High Court in a succession cause

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, "Catherine Wairimu Gichira v Margaret Nyokabimuchoki & 2 others [2017] KECA 472 (KLR)", Case Analysis (2017). Civil Appeal No. 183 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/472/eng@2017-06-23

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