Veronica Chepundoni Magai & another v Cicilia Chesos Chepkilim & another [2019] KECA 776 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a second succession grant obtained while an earlier grant still exists is legally void, and full disclosure to court is mandatory.
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 appeal was incompetent for want of a certified copy of the order appealed from under Rule 87(1)(h) of the Court of Appeal Rules
- 2.Whether the High Court had power to determine the issue of trust in the succession cause
- 3.Whether the deceased held the suit land in trust for the appellants
- 4.Whether the second Grant issued to the appellants while a prior Grant was in existence was a nullity
- 5.Whether the Grant was obtained by misrepresentation and concealment of material facts warranting revocation under section 76 of the Law of Succession Act
Key legal issues
#Whether the issue of trust could be determined in the succession cause
The court held that where the question of trust is directly and substantially an issue before the succession court, the court's fused equitable and legal jurisdiction empowers it to determine the issue.
The trust claim was pleaded in the affidavits, both parties filed evidence and submissions on it, and the trial judge was called upon to decide it. Because the High Court in succession matters exercises fused equitable and legal jurisdiction, it was convenient and lawful for it to determine the trust question within the revocation application rather than require a separate suit.
Whether the deceased held the land in trust for the appellants
No trust was established; the deceased was adjudicated as proprietor on behalf of her household, which included the appellants' father.
The Land Adjudication Committee awarded the whole disputed land to the deceased, with no finding that she was to hold it in trust for anyone. The appellants' mother participated in or was aware of the proceedings and never appealed under the Land Adjudication Act. Affidavit evidence accepted by the trial judge showed the land had been sub-divided among the deceased's three sons, including the appellants' father, who received seven acres.
Validity of the second Grant
A grant issued while a prior grant over the same estate is still in existence is a nullity in law.
Samuel Rotumoi Chepkilim had already obtained a grant in Succession Cause No. 187 of 2005 and was still alive when the appellants obtained theirs. Under section 81 of the Law of Succession Act, upon his death his powers vested in the survivor; the appellants' proper course was to seek revocation of the existing grant and a further grant, not to take out a fresh grant. The second grant was therefore useless and inoperative under section 76(e).
Whether the Grant was procured by misrepresentation and concealment
The trial judge's findings of misrepresentation and concealment of material facts were supported by ample evidence, justifying revocation under section 76 of the Law of Succession Act.
The appellants knew of existing disputes in the estate and that other beneficiaries and their families had settled on the land, yet failed to disclose these facts to the court, misrepresented themselves as the only beneficiaries, did not disclose the surviving daughter and daughters-in-law with better claims, and failed to disclose that the estate was that of their grandfather rather than their father.
Legal principles established
#- A second grant of letters of administration issued while a prior grant over the same estate is still in existence is a nullity in law, irrespective of the second applicant's knowledge of the first grant
- Upon the death of one of several legal representatives of an estate, the powers and duties vest in the survivor under section 81 of the Law of Succession Act, and the proper course upon such death is to apply for revocation of the existing grant and issuance of a further grant, not to apply for a fresh grant
- A stamped copy of an order signed by the Deputy Registrar contained in the record of appeal satisfies the requirement of a certified copy of the order and non-compliance with Rule 87(1)(h) is a mere technicality that does not render an appeal incompetent
- The succession court exercising fused equitable and legal jurisdiction has power to determine a question of trust directly and substantially raised before it in a succession cause
Court orders
#- 1.Appeal dismissed with costs to the respondents
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 Kitale
- H.C. Succession Case No. 173 of 2007
- Jurisdiction invoked
- First appellate jurisdiction over a ruling of the High Court in a succession cause; appeal under the Court of Appeal Rules (appeal from ruling dated 15th February 2016)
Relief refused
#Appellants' claim that the deceased held the suit land in trust for them
The adjudication proceedings showed the deceased was adjudicated proprietor on behalf of her household; the trust claim was an attempt to re-open the adjudication process which should have been challenged by appeal under the Land Adjudication Act
Setting aside of the revocation of the Grant
The second Grant was a nullity in law as it was issued while the first Grant was still in existence, and it was obtained by misrepresentation and concealment of material facts
Costs
The appeal was dismissed with costs to the respondents
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.
For the foregoing reasons, the appeal is dismissed with costs to the respondents.
The second Grant issued to the appellants before the first Grant had been revoked is a nullity in law whether or not the appellants knew of the existence of the first Grant.
A copy of the stamped order which is signed by the Deputy Registrar is as good as a certified copy of the order. This is a matter of form, a mere technicality that does not render the appeal incompetent.
It follows that the question of trust was directly and substantially an issue before the trial court and the court exercising the fused equitable and legal jurisdiction had power to determine the issue in the succession cause if it deemed it, as it did, convenient to do so.
Issues in the judgment
#The judgment inconsistently renders party names (e.g. 'Veronica Chepundoni Magai' in the title versus 'Veronicah Chepundon Magal' in the confirmation details) and refers to the deceased with variant spellings ('Chepokokoi', 'Chepokokai', 'Chepokokoi Chepkilim Lopeile')
The judgment states the Grant to the appellants in Cause No. 173 of 2007 was confirmed on 7th November, 2017, which post-dates the ruling appealed from (15th February 2016) and the framing of the appeal, an apparent internal chronological inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Veronica Chepundoni Magai & another v Cicilia Chesos Chepkilim & another [2019] KECA 776 (KLR)", Case Analysis (2019). Civil Appeal No. 117 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/776/eng@2019-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.