Grace Chebet Sisimwo & 4 others v Everlyne Cherukut Sisimwo & another [2019] KECA 25 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that married daughters inherit equally from a parent's estate, and merely occupying family land does not guarantee ownership.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the mode of distribution of the estate of the deceased adopted by the learned Judge was fair and justifiable
- 2.Whether the deceased had settled the appellants on Museng (Farm) LR No 2058/7 during his lifetime so that their occupation should be preserved
- 3.Whether the Court should review the distribution of Museng (Farm) LR No 2058/7 in light of the Kitale suit determining Museng Koitabos LR No 1948/10
- 4.Whether married daughters of the deceased may be excluded or given lesser shares in the estate
Key legal issues
#Whether the deceased had settled the appellants on their portions during his lifetime under section 42 of the Law of Succession Act
The appellants failed to prove lifetime settlement; occupation and development of land by a beneficiary does not by itself establish that the deceased settled them there, so their occupation is subject to the final distribution of the estate.
The trial judge found only the two widows had been settled by the deceased on specific properties; apart from the widows, there was no sufficient evidence that any other beneficiary had been settled. Administrators' testimony confirmed occupation but the decisive question was whether the deceased had settled the appellants before his death. In the absence of proof, the judge had discretion to distribute under section 35, and the appellate court found no basis to interfere with that equitable exercise of discretion.
Whether married daughters may be allocated shares in the estate of their father
Daughters of a deceased person, whether married or not, are entitled to equal treatment as beneficiaries of the estate under the Law of Succession Act and the Constitution.
The court relied on its prior decisions, including Rono v Rono and Grace Wachuka, holding that all children are treated equally as beneficiaries, and a married daughter is entitled to an equal share unless she voluntarily renounces her rights. Discrimination on grounds of sex is outlawed, and the current Constitution of Kenya 2010 applies with greater force than the retired Constitution. The respondents' marriage and departure from the suit property therefore did not defeat their entitlement.
Whether Museng Koitabos LR No 1948/10 was available for redistribution to the respondents
The property was not available for distribution because, in the intervening Kitale ELC suit, Silas Sile Sisimwo and David Sisimwo Stephen had acquired 125 acres of it by adverse possession in their personal capacities.
The trial court's order had only provisionally accounted for Museng Koitabos in case it reverted to the estate after the Kitale litigation. The Kitale suit was subsequently determined by Obaga J on 28th May 2015, holding the two beneficiaries had acquired the property by adverse possession after over twelve years of quiet and uninterrupted occupation. Consequently the appellants' proposal that the respondents be relocated there could not succeed, and no basis existed to alter the distribution of Museng (Farm) LR No 2058/7.
Whether the distribution of Museng (Farm) LR No 2058/7 by the trial judge was equitable
The distribution was equitable in all respects, allocating arable flat land to widows and daughters and accounting for other benefits received by some sons, and the appellate court would not interfere with it.
Each widow received 10 acres of flat arable land and each daughter 15 acres, while the sons received larger portions comprising rocky as well as arable land. Ben Stephen Sisimwo additionally received other parcels, a plot and a tractor, and Luka Sisimwo received a motor vehicle. The judge took account of developments and occupation without disrupting beneficiaries, and the reduction of the appellants' shares did not render the distribution unfair or unjustifiable.
Legal principles established
#- On a first appeal, the Court of Appeal is duty-bound to evaluate the evidence afresh by way of retrial and reach its own independent conclusions, while making allowance for not having seen or heard the witnesses.
- There can be no discrimination against the daughters of a deceased person, and it matters not that they are married; all children are equal beneficiaries of a parent's estate.
- Property settled by a deceased on a beneficiary during his lifetime is not removed from that beneficiary but is brought into account when distributing the estate under section 42 of the Law of Succession Act.
- The Court of Appeal has power, upon hearing an appeal, to redistribute the estate of a deceased if it differs with the manner in which the High Court distributed it.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the lead judgment reviewing the High Court's distribution of the estate of Stephen Baron Sisimwo. Held that the first appeal is by way of retrial, that Museng Koitabos LR No 1948/10 was unavailable for distribution having been acquired by Silas Sile Sisimwo and David Sisimwo Stephen through adverse possession, that the appellants failed to prove lifetime settlement by the deceased under section 42 of the Law of Succession Act, and that daughters cannot be discriminated against irrespective of marriage. Found the distribution equitable and dismissed the appeal.
In the circumstances of this appeal, I find that the distribution reached by the learned judge was equitable in all respects.p. 4
Wrote the judgment
Concurred with Mohammed JA's draft judgment, agreeing that the High Court distributed the estate equitably in accordance with section 35 of the Law of Succession Act and that there was no justification for interference. Noted delivery in accordance with Rule 32(3) of the Court of Appeal Rules following Githinji JA's retirement.
The Learned Judge of the High Court distributed the estate equitably and in accordance with section 35 of the Law of Succession Act. There is therefore no justification for this Court to interfere.p. 4
- On appeal from
- High Court of Kenya at Bungoma
- High Court Succession Cause No 89 of 2002
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction over the High Court in a succession cause
Relief refused
#Declaration that the deceased had settled the appellants on Museng (Farm) LR No 2058/7 during his lifetime
None of the appellants (other than the two widows) led evidence of lifetime settlement by the deceased
Redistribution directing that the respondents be settled on Museng Koitabos LR No 1948/10 instead of Museng (Farm) LR No 2058/7
The property was not available for distribution, having been acquired by Silas Sile Sisimwo and David Sisimwo Stephen through adverse possession
Costs
This being a family matter, each party shall bear their own costs.
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.
This is a first appeal, it is therefore the duty of this Court imposed by law to evaluate afresh by way of a retrial, the evidence recorded before the trial court in order for it to reach its own independent conclusion.
Nevertheless, it is now well settled that there can be no discrimination against the daughters of a deceased, and it matters not that they are married.
In the circumstances of this appeal, I find that the distribution reached by the learned judge was equitable in all respects. That being the case, there is nothing before the Court to warrant any interference with the distribution made by the trial court.
Accordingly I find no merit in this appeal and would dismiss it.
This being a family matter, each party shall bear their own costs.
The appeal is therefore dismissed and each party ordered to pay their own costs. This Judgment has been delivered in accordance with Rule 32(3) of the Court of Appeal Rules Githinji, JA having ceased to hold office by virtue of retirement from service.
Issues in the judgment
#The judgment records delivery at Kisumu although the appeal is listed as Court of Appeal at Eldoret, and states Githinji JA had retired yet he appears in the coram; the signature block also omits any judge for Githinji JA.
The judgment refers to the second widow inconsistently as Agnes Nafula Sisimwo and Agnes Wafula Sisimwo.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested Party)[2022] KESC 66 (KLR)28 Oct 2022followed
Cite this brief
#Cite this brief
Caselaw, "Grace Chebet Sisimwo & 4 others v Everlyne Cherukut Sisimwo & another [2019] KECA 25 (KLR)", Case Analysis (2019). Civil Appeal No 6 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/25/eng@2019-12-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.