Anne Wambui Githaiga v Stephen Maina Githaiga [2019] KECA 588 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that children from a customary marriage inherit equally, and that seeking review of a judgment extinguishes your right to appeal 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 learned Judge erred by allowing the application for the revocation of the grant filed by the respondent
- 2.Whether there was evidence to prove the respondent and his sister were children of the deceased
- 3.Whether the appeal was competent, given that the appellant had filed an application for review of the same judgment and filed the Notice of Appeal out of time
Key legal issues
#Competency of the appeal: election between review and appeal, and out-of-time Notice of Appeal
By filing an application for review of the judgment of 8th November 2013, the appellant lost her right of appeal against that judgment; the appeal could only lie against the ruling of 30th January 2015, and the out-of-time Notice of Appeal, filed without leave, anchored no competent appeal.
The court found that the appellant's review application, determined by a Ruling dated 30th January 2015, extinguished her right to appeal the underlying judgment. The Notice of Appeal was filed on 9th February 2015, after time had lapsed, with no exhibited order granting leave to file out of time. Accordingly, there was no appeal properly before the court and the court ordered it struck out, though it nevertheless proceeded to pronounce findings on the merits for closure.
Whether the respondent and his sister were children of the deceased and thus entitled to distribution
Yes. The trial Judge was entitled to find that the respondent and Keziah Njeri were children of the deceased; the appellant and her mother had recognised them in the 1994 petition for letters of administration, and uncontradicted evidence from relatives of the deceased confirmed paternity through a customary marriage to their mother, Hellen Wamarwa.
The petition and supporting affidavit of 1994 listed the respondent and his sister as son and daughter of the deceased, and a later affidavit denying this was perjured and could not stand. Four witnesses, including the deceased's brother and uncle, gave uncontroverted evidence of the customary marriage and dowry payment. The appellant, as sole witness for her side, called no family witness and failed to discharge the burden of proving her allegation that the respondent was a stranger. The court entirely agreed with the trial Judge's evaluation.
Revocation of the confirmed grant and redistribution of the estate
The Judge did not err in revoking the confirmed grant which had excluded the respondent's mother's house, in appointing the respondent as co-administrator, and in directing equal distribution among the three surviving children of the deceased.
The confirmed grant had vested the estate in the appellant in trust for her children, excluding the respondent and his sister despite their being named in the original petition. The trial Judge set aside the confirmation proceedings of 4th March 1998 and cancelled the certificate of confirmation, directing the estate to be shared equally between the three surviving children. The Court of Appeal found the impugned decision was in accordance with the evidence adduced and declined to disturb it.
Legal principles established
#- On a first appeal, the appellate court's primary role is to re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the conclusions of the trial Judge should stand, while making due allowance for the fact that it neither saw nor heard the witnesses.
- A litigant who elects to file an application for review of a judgment loses the right to file an appeal against the same orders, and an appeal against those orders is an abuse of the court process.
- A party who alleges a fact bears the burden of proving it, and it is not for the court to summon witnesses for a party in a civil matter.
Court orders
#- 1.The appeal is struck out as incompetent
- 2.The appeal is dismissed on the merits with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Succession Cause No 327 of 1994
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules from the judgment of the High Court in a succession cause
Relief refused
#The appellant's appeal against the judgment of 8th November 2013 revoking and re-confirming the grant and redistributing the estate
The appeal was incompetent because the appellant had elected to seek review of the same judgment, and the Notice of Appeal was filed out of time without leave; in any event, on the merits there was sufficient evidence that the respondent and his sister were children of the deceased
Costs
Appeal dismissed with costs to the respondent
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.
We think we have said enough to demonstrate that we are ultimately convinced that the appeal is both incompetent and frivolous. It is dismissed with costs to the respondent.
As matters lie there is no appeal before us and we order it struck out.
This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
If the appellant had elected to file an application for review, then an appeal could not be filed against the same orders that were sought to be reviewed.
She bore the burden of proving the facts that she alleged. It was not upon the court to summon witness for a party in a civil matter.
Issues in the judgment
#The judgment contains internally conflicting dispositions: at paragraph 12 the court states the appeal is struck out as incompetent, but the closing paragraph 19 states the appeal is dismissed on the merits with costs.
The judgment refers to the ruling under review inconsistently, describing it as a Ruling dated 30th January 2015 in the reasoning but as 'ruling delivered on 29 th January, 2015' in the quoted Notice of Appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anne Wambui Githaiga v Stephen Maina Githaiga [2019] KECA 588 (KLR)", Case Analysis (2019). Civil Appeal No 229 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/588/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.