Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal No 384 of 2017· [2019] KECA 98 (KLR)

Margaret Isutsa Kirui v Rosemary Sang [2019] KECA 98 (KLR)

Court of Appeal
6 December 2019
WKW. KaranjaHOHannah OkwenguSKS. ole Kantai
1,787 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed it can hear succession appeals and that a court cannot ignore an unchallenged Will when dividing a deceased person's estate.

What this practically means

#

Executive summary

#
The deceased, Kipkoech Kirui, died in 1994 leaving a Will appointing National Bank of Kenya as executor, which renounced. A grant of letters of administration with the Will annexed was issued to the appellant, Margaret Isutsa Kirui, in 1995 and confirmed in 1996. In 2009 the High Court (Rawal, J) revoked that grant on its own motion for failure to file accounts and issued a fresh grant to the respondent, Rosemary Sang. The appellant's application for review was dismissed by Nambuye, J, who advised her to file an affidavit of protest against the summons for confirmation, which she did in May 2013. On 9th May 2013, without any hearing or recorded proceedings, Kimaru, J distributed the deceased's estate as an intestate estate, without determining the protest or the validity of the Will. On appeal, the respondent argued the Court lacked jurisdiction over succession appeals and that the appeal was overtaken by events. The Court rejected both arguments, holding that it is endowed with jurisdiction under Article 164(3)(a) of the Constitution and Section 3 of the Appellate Jurisdiction Act. On the merits, the Court held that where a Will is filed and has not been disproved or annulled, the court cannot ignore it and distribute the estate under the rules of intestacy, and cannot impose a mode of distribution without hearing the parties. The appeal was allowed, the confirmation and distribution of 9th May 2013 were set aside, and the matter was remitted to the High Court for hearing of the summons for confirmation together with the affidavit of protest. Each party was ordered to bear its own costs of the appeal.

Key legal issues

#
01

Jurisdiction of the Court of Appeal over succession matters

Holding

The Court of Appeal has jurisdiction to hear appeals from the High Court in succession matters as of right; the respondent's objection was unfounded and unsupported by any cited law.

Reasoning

The court invoked Article 164(3)(a) of the Constitution and Section 3 of the Appellate Jurisdiction Act, which confer jurisdiction to hear appeals from the High Court, including succession matters filed in the High Court's original jurisdiction. Section 50 of the Law of Succession Act bars only second appeals from magistrates' courts under Section 49. Counsel for the respondent cited no law or decisions supporting his objection.

p. 2
02

Distribution of an estate under intestacy where a Will exists

Holding

It was error to distribute the estate as intestate when the deceased's Will had never been proved or disproved; the court could resort to intestate distribution only if the Will was disproved or annulled.

Reasoning

It was common ground the Will had never been proved or disproved as required by the Law of Succession Act. The proceedings of 9th May 2013 showed no party was heard; the Judge distributed the estate suo motu without input from parties or counsel, disregarding the Will. Even in intestacy, the court cannot impose a mode of distribution without hearing the parties. The affidavit of protest filed by the appellant was never determined.

p. 2

Legal principles established

#
  • The Court of Appeal has jurisdiction to hear first appeals in succession matters from the High Court's original jurisdiction under Article 164(3)(a) of the Constitution and Section 3 of the Appellate Jurisdiction Act; Section 50 of the Law of Succession Act only bars second appeals from magistrates' courts.
  • Where a Will has been filed in court and has not been disproved or annulled, the court cannot ignore it and distribute the estate under the rules of intestacy; nor can the court impose a mode of distribution without hearing the parties.

Court orders

#
  1. 1.Appeal allowed
  2. 2.Confirmation and distribution of the Estate made on 9th May, 2013 set aside
  3. 3.Matter remitted to the High Court for hearing of the summons for confirmation of Grant dated 16th July, 2009 along with the affidavit of protest filed by the appellant
  4. 4.Each party to bear its own costs of the appeal

Authorities

#

Legislation

  • Constitution of Kenya 2010Article 164(3)(a)
  • Appellate Jurisdiction ActSection 3
  • Law of Succession ActSection 76
  • Law of Succession ActSection 50
  • Law of Succession ActSection 49
  • Probate and Administration RulesRule 73
  • Civil Procedure RulesOrder XLIV Rule 1(1)(a)
On appeal from
High Court of Kenya at Nairobi
H.C. Succession Cause No. 1559 of 1995
Jurisdiction invoked
Article 164(3)(a) of the Constitution of Kenya 2010 and Section 3 of the Appellate Jurisdiction Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Margaret Isutsa Kirui v Rosemary Sang [2019] KECA 98 (KLR)", Case Analysis (2019). Civil Appeal No 384 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/98/eng@2019-12-06

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