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Court of AppealPartially AllowedCivil Appeal No. 193 of 2018· [2019] KECA 444 (KLR)

Elizabeth Wanjiru Njonjo Rubia v Brian Mwaituria [2019] KECA 444 (KLR)

Court of Appeal of Kenya
6 August 2019
William OukoW. OukoRNR.N. NambuyeMohamed Abdulahi WarsameM. Warsame
3,586 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled a widow owns half of the family's Karen home outright, on top of her life interest in the rest.

What this practically means

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Executive summary

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This was a first appeal from a ruling of the High Court (Musyoka, J.) in Succession Cause No. 2377 of 2008 concerning the distribution of LR No. 13790/6 Karen, the matrimonial home of the late Bernard Njonjo Rubia. The deceased died intestate in 2008, survived by his widow (the appellant) and a son from a prior relationship (the respondent). The High Court had directed that the Karen property devolve on the widow for life and thereafter on the respondent absolutely, applying section 35 of the Law of Succession Act. The appellant contended she was entitled to a 50% share based on a wedding gift from her father-in-law and her contribution to the property's development, and also objected to the procedure adopted below. The Court of Appeal first held that the judge's determination of the property claim on the confirmation summons was proper: the court retained discretion under Rule 41 of the Probate and Administration Rules where the question could conveniently be decided, the parties had consented and led oral evidence, and the objection was merely technical. On the merits, applying the Law of Succession Act, the Married Women Property Act 1882 and the definitions now in the Matrimonial Property Act 2013, the Court held the Karen property was matrimonial property. The appellant's uncontroverted evidence of monetary and non-monetary contribution, while the deceased worked abroad and the respondent never lived in or contributed to the property, entitled her to a separate 50% share, to be deducted from the net intestate estate before the section 35 life interest applied to the residue. The appeal was allowed: the appellant was declared entitled to 50% of the property in addition to a life interest, the property to be subdivided with half registered in her name and the other half devolving to the respondent on her death or remarriage. No orders as to costs were made, the matter being a family dispute.

Key legal issues

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01

Whether the confirmation-of-grant procedure was wrongly adopted to determine the appellant's property claim

Holding

The court below retained discretion to determine the question at the confirmation stage; the objection was merely technical.

Reasoning

Rule 41(3) of the Probate and Administration Rules permits a court, where a question of identity or share cannot conveniently be determined at confirmation, to set aside that share for determination by originating summons; but the proviso is discretionary. Here parties, by consent, agreed to viva voce evidence, no prejudice was occasioned, and remitting would only delay and multiply costs. The ground therefore failed.

p. 3
02

Whether the Karen property was matrimonial property

Holding

The Karen property was matrimonial property of the deceased and the appellant.

Reasoning

The deceased died before the 2010 Constitution and the Matrimonial Property Act, 2013, so the Law of Succession Act and the Married Women Property Act, 1882 applied. The property was transferred to the deceased during the marriage, occupied as the family home, and developed during the subsistence of the marriage. Definitions now in sections 2 and 6 of the Matrimonial Property Act informed the court's view that the property was matrimonial.

p. 4
03

The appellant's entitlement in the property

Holding

The appellant was entitled to 50% of the property in addition to her life interest under section 35.

Reasoning

The appellant's uncontroverted evidence showed both monetary and non-monetary contribution to construction while the deceased worked abroad; the respondent never lived in the property and contributed nothing. Her separate contribution share must be excluded from the residue before the section 35 life interest operates, so the estate's share passes to the respondent only on her death or remarriage.

p. 5

Legal principles established

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  • A probate court retains discretion under Rule 41 of the Probate and Administration Rules to determine a question as to a beneficiary's share at the confirmation stage where it can conveniently be decided, particularly where the parties consent and lead oral evidence; failure to direct an originating summons is a mere technicality.
  • A surviving spouse's separate beneficial share in matrimonial property, arising from proven monetary and non-monetary contribution, is to be deducted from the net intestate estate before the life interest under section 35 of the Law of Succession Act is applied to the residue.
  • On a first appeal, the appellate court re-evaluates the evidence and draws its own conclusions while making allowance for not having heard the witnesses.

Court orders

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  1. 1.Declared that the appellant is entitled to 50% of L.R No. 13790/6 Karen in addition to life interest in the property
  2. 2.Ordered that L.R No. 13790/6 Karen be subdivided and half of it be registered in the appellant's name
  3. 3.Ordered that the other half devolve to the respondent upon death or remarriage of the appellant
  4. 4.Made no orders as to costs in the appeal

Authorities

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Legislation

  • Law of Succession Actsection 35
  • Law of Succession Actsection 3
  • Law of Succession Actsection 71(2)
  • Law of Succession Actsection 82
  • Law of Succession Actsections 40, 41, 42
  • Probate and Administration RulesRule 41
  • Probate and Administration RulesRule 41(3)
  • Civil Procedure RulesOrder 37(1) (formerly Order XXXVI, rule 1)
  • Constitution of Kenya, 2010Articles 27, 41, 50 and 45(3)
  • Matrimonial Property Act, 2013sections 2 and 6
  • Married Women Property Act, 1882 (England, now repealed)

Cases cited (5)

  • Selle vs. Associated Motor Boat Company Ltd
    [1968] EA 123
  • Miller v Miller: McFarlane v McFarlane
    [2006] UKHL 24
  • PWK V. JKG
    (2015) eKLR
  • HWM V. WNM
    (2015) eKLR
  • PNN V. ZWN
    (2015) eKLR
On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 2377 of 2008
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over High Court decisions (no specific provision stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Elizabeth Wanjiru Njonjo Rubia v Brian Mwaituria [2019] KECA 444 (KLR)", Case Analysis (2019). Civil Appeal No. 193 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/444/eng@2019-08-06

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