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Court of AppealDismissedCivil Appeal No 92 of 2016· [2019] KECA 468 (KLR)

Benson Champu Kaparewo v Rabeca Chepkuto Kiperenge

Court of Appeal of Kenya
25 July 2019
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
2,360 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a wrongly obtained inheritance grant can be revoked even years later.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret dismissed this first appeal against a ruling of the High Court at Kitale (Jaden, J.) delivered on 26 May 2016 in H.C. Succ. Cause No 191 of 2006. The dispute concerns the intestate estate of Kiperenge Paparewa Miapen, who died on 24 December 2000. The appellant, a son of the deceased, obtained a grant of letters of administration on 23 July 2007, confirmed on 13 November 2008. The respondent, a daughter of the deceased, applied in 2015 for revocation or annulment of the grant, alleging that the proceedings were defective in substance, that beneficiaries were concealed or wrongly listed, and that she was never consulted. The trial court revoked the grant and directed that the summons for confirmation be heard de novo, finding the grant had been issued irregularly without notice to the applicant and other persons beneficially entitled, contrary to section 26(1) of the Law of Succession Act. On appeal, the appellant argued that the respondent had been cited and was represented at confirmation, that the proceedings were regular, and that the application was barred by inordinate delay. The Court of Appeal, re-evaluating the evidence as required on a first appeal, agreed with the trial court that whether the respondent was cited was not properly proved, that no consents from beneficiaries were filed, and that the other listed beneficiaries were absent. It held that section 76 of the Law of Succession Act imposes no limitation period for revocation, so delay was not a bar, and that the allegations of concealment and disinheritance fell within the section 76 grounds. The Court affirmed the revocation of the grant and the order that confirmation be heard afresh, dismissing the appeal in its entirety with each party bearing its own costs as a family matter.

Key legal issues

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01

Whether the proceedings for issuance and confirmation of the grant were defective in substance

Holding

Yes. The record did not show service of the citation, consents by the beneficiaries, or their presence at confirmation, so the grant was issued irregularly and the proceedings were defective under section 76(a)

Reasoning

The Court agreed with the trial court that it was impossible to tell whether the respondent was cited or privy to the making of the grant, as the record was unclear and unsupported by further evidence. Other listed beneficiaries were not present and no consents were filed. The Court found the procedure leading to confirmation questionable and held that the concerns raised were valid grounds under section 76.

p. 4
02

Whether delay bars a section 76 application for revocation of a grant

Holding

No. There is no limitation of time for bringing or entertaining such an application; what matters is whether the conditions in section 76 are satisfied

Reasoning

Although the appellant demonstrated a long delay of about seven years, the Court held that section 76 permits revocation of a grant 'at any time' and imposes no limitation period. The decisive question is whether the court is satisfied that the statutory grounds - defective proceedings, fraud or concealment of material facts - are met.

p. 4
03

The scope of section 76 grounds including concealment of material facts

Holding

Allegations that the appellant petitioned as sole administrator, excluded beneficiaries and sought to inherit the whole estate in disregard of other heirs fell within section 76 grounds warranting revocation

Reasoning

The respondent contested a distribution which gave the appellant the entire estate and alleged an attempt to disinherit her and her siblings. These matters, the Court held, would entitle the court to revoke the grant under section 76. The respondent's sons' entitlement was also not considered, so revocation and a fresh hearing of confirmation would resolve all issues.

p. 4

Legal principles established

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  • A grant of representation, whether or not confirmed, may be revoked at any time; there is no limitation of time for an application under section 76 of the Law of Succession Act, and delay alone does not bar the court if the statutory conditions are met
  • On a first appeal the Court of Appeal must re-evaluate, re-assess and re-analyse the evidence and reach its own conclusion

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Each party shall bear its own costs, the matter being a family matter
On appeal from
High Court of Kenya at Kitale
H.C. Succ. Cause No 191 of 2006
Jurisdiction invoked
First appeal to the Court of Appeal under the Law of Succession Act and the Appellate Jurisdiction Act (the judgment does not cite the specific provision)

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, "Benson Champu Kaparewo v Rabeca Chepkuto Kiperenge", Case Analysis (2019). Civil Appeal No 92 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/468/eng@2019-07-25

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