David Maritim Rotuk & another v Jepsongok Cheruiyot & another [2019] KECA 245 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that land given during a parent's lifetime is counted when sharing the estate, and jointly-owned land isn't fully part of it.
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 parcels of land in Sugoi and Kormaet were gifts inter vivos from the deceased to the 1st appellant and to the 2nd appellant's deceased husband, and whether such benefits should be brought into account in the distribution of the estate under section 42 of the Law of Succession Act
- 2.Whether the learned judge erred in apportioning Cherus Bitok 45 acres being his half share as joint registrant of the suit property
- 3.Whether the mode of distribution adopted by the High Court was equitable under sections 40, 27 and 28 of the Law of Succession Act
- 4.Whether the Court should interfere with the findings of fact of the first appellate court's duty on a first appeal
Key legal issues
#Scope of free property available for distribution on intestacy
Where the suit property was registered in the joint names of the deceased and his son in equal shares, only the deceased's half share is free property available for distribution; the son's half share is not part of the estate.
The green card showed the property was first registered on 4th February 1959 in the names of the deceased and Cherus in equal shares. Applying section 3 of the Law of Succession Act's definition of free property, the Court held that Cherus's half share was not property of which the deceased could freely dispose, and therefore only the 45-acre half belonging to the deceased could be distributed among the houses.
Gifts inter vivos and the shifting evidential burden
The 1st respondent's uncontroverted oral evidence that the deceased had purchased the Sugoi and Kormaet properties for the appellants was accepted; the appellants, on whom the evidential burden shifted as the facts were specially within their knowledge, failed to discharge it.
Though the 1st respondent had no documentary evidence, her testimony on how and where the gifted properties were purchased was not controverted, and the appellants did not explain how they acquired the properties. Invoking section 112 of the Evidence Act on facts especially within a party's knowledge, the Court held the evidential burden properly shifted to the appellants, who failed to discharge it, so the finding of gifts inter vivos stood.
Bringing previous benefits into account under section 42 of the Law of Succession Act
Land gifted by the deceased during his lifetime to the 1st appellant and to the 2nd appellant's deceased husband had to be taken into account in determining their shares of the net intestate estate, validating the High Court's mode of distribution.
Section 42 of the Law of Succession Act requires property paid, given or settled by an intestate during his lifetime for the benefit of a child, grandchild or house to be taken into account in determining the share of the net intestate estate finally accruing to that child, grandchild or house. The Court, citing Johannes Mbugua Muchuku, found no error in the learned judge factoring the Sugoi and Kormaet gifts into the distribution.
Duty of a first appellate court
As a first appeal, the Court was entitled to reconsider and evaluate the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses; on this record there was no basis for interference.
Relying on Selle v Associated Motor Boat Co, the Court restated that a first appeal is by way of retrial: the appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, but is not bound to follow the trial judge's findings of fact unless he clearly failed to take account of particular circumstances or probabilities, or the impression from demeanour is inconsistent with the evidence. Applying those principles, the Court found no reason to disturb the findings below.
Legal principles established
#- Only the free property of a deceased person - property of which the deceased was legally competent freely to dispose and in which no other person holds an interest - forms the subject of distribution on intestacy; a half share jointly registered in another person's name is excluded.
- Where a party asserts that property acquired by another was a gift inter vivos from the deceased, and that fact is especially within the knowledge of the recipient, the evidential burden shifts to the recipient to prove how the property was acquired under section 112 of the Evidence Act.
- Property given by an intestate during his lifetime to a child or grandchild must be taken into account in determining the share of the net intestate estate finally accruing to that child, grandchild or house, per section 42 of the Law of Succession Act.
Court orders
#- 1.The appeal is dismissed
- 2.The judgment of the High Court upholding the distribution of the estate is upheld
- 3.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- H.C. Succ. Cause No. 754 of 2008
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Court of Appeal's statutory appellate powers (appeal as of right against the High Court judgment in the succession cause)
Relief refused
#Setting aside the High Court judgment and redistributing the estate equally between the three houses (30 acres to Cherus, 15 acres each to the other parties)
The Court found the learned judge properly considered and analyzed the evidence and applied the law, including section 42 of the Law of Succession Act on previous benefits brought into account
Costs of the appeal borne by the respondents
The Court considered the matter a family succession dispute and ordered each party to bear their own costs
Costs
Each party bears 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.
As a result, only the share that belonged to the deceased is the free property that may form the subject of distribution.
In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.
we are satisfied that the learned Judge properly considered and analyzed the evidence and applied the law appropriately. We see no reason to interfere with the findings of the High Court. Accordingly, we uphold the judgment and dismiss this appeal.
This being a family succession dispute we find it prudent to order that each party bears their own costs.
Issues in the judgment
#The judgment spells the 1st appellant's name inconsistently between the title (David Maritim Rotuk) and the body (David Maritim Rotut).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Maritim Rotuk & another v Jepsongok Cheruiyot & another [2019] KECA 245 (KLR)", Case Analysis (2019). Civil Appeal No 61 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/245/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.