Moses Mooke Loontasati v Twaarari Ole Loontasati Ololowuaya [2020] KECA 168 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that family land under customary law must be divided per proven custom, and unproven expense claims win nothing.
What this practically means
#Executive summary
#Key legal issues
#Proof of Maasai customary law of inheritance
The evidence of the deceased's step-brother, an Assistant Chief and the vice chairman of the Mailwa group sufficiently proved the custom of equal distribution of land amongst a deceased's wives' houses.
Customary law must be proved by evidence or expert testimony since courts are presumed not versed in it. The Court found the testimony of three witnesses sufficient to establish the custom, and judicial notice of African customary law may be taken for African parties, subject to the Judicature Act.
Children born to widows after the deceased's demise
Under Maasai customary law such children are beneficiaries of the deceased's estate, with shares determined within each household.
Evidence was tendered that under Maasai custom, children born to the widows after the deceased's death, though not biological children of the deceased, are beneficiaries; the household members guided by the matriarch determine their shares.
Mode of distribution, access roads, topography and the borehole
The equal distribution of 240.9 Ha per house per the consent of the majority of beneficiaries was upheld; no disadvantage or denial of access was intended.
The trial court adopted the proposal supported by all beneficiaries except the appellant and two brothers, and could not be expected to know topographical features never placed before it. There was a public road to the borehole serving all houses.
Appellant's claim of Kshs. 6,990,005 expended on the estate
The claim failed as unproved and was offset by lack of accounting for estate income.
The appellant's alleged expenditure was not proved, and beneficiaries contended he failed to account for income generated from the estate between 1991 and 2015, disentitling him to a bigger share.
Legal principles established
#- A party relying on customary law must prove it by evidence or expert testimony; claims resting on unproven custom fail.
- Estates of persons dying before 1st July 1981 are governed by the written laws and customs applying at the date of death, though administration proceeds under the Law of Succession Act.
- An appellate court will not interfere with a trial court's findings of fact or exercise of discretion unless shown to be wrong on no evidence, misapprehension of evidence or wrong principles.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Each party to bear its own costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Succession Cause No. 1060 of 1987
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Appellate Jurisdiction Act against the judgment and Certificate of Confirmation of Grant of the High Court in a succession cause
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Salim v Oyola (Appeal E017 of 2023) [2023] KEELRC 2842 (KLR)[2023] KEELRC 2842 (KLR)9 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "Moses Mooke Loontasati v Twaarari Ole Loontasati Ololowuaya [2020] KECA 168 (KLR)", Case Analysis (2020). Civil Appeal No. 32 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/168/eng@2020-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.