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Court of AppealDismissedCivil Appeal 21 of 2017· [2022] KECA 373 (KLR)

Munyole v Munyole

Court of Appeal
18 February 2022
KMK M'InotiMNM NgugiPKP O Kiage
3,626 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 confirmed that in polygamous families, inherited land is shared by house size unless you can prove the deceased gifted it during his lifetime.

What this practically means

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Executive summary

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The appellant, the second widow of Justus Munyole Nakitare (deceased), appealed against the High Court of Kenya at Bungoma (Ali-Aroni J) distribution of the deceased's intestate estate between his two houses. The deceased died intestate in 1983 leaving two widows and twenty children, with the estate comprising two parcels: Bokoli/Chwele/892 (occupied by the first house) and Bokoli/Chwele/1065 (occupied by the second house). The appellant contended that the deceased had separated his houses in 1963 and bought Bokoli/Chwele/1065 specifically for her house, that this represented his wishes, and that each house should retain the parcel it occupied. She relied on a Land Disputes Tribunal award in her favour, a clan elders' resolution, and invoked estoppel after 38 years. The Court of Appeal identified the main issue as how the estate should be distributed and whether the trial court erred in its mode of distribution. The court held that section 40 of the Law of Succession Act governed, requiring division among houses according to the number of children in each house, with surviving wives as additional units. It affirmed the trial court's finding that no evidence established a gift inter vivos of Bokoli/Chwele/1065 to the appellant's house, so both properties were available for equitable distribution to all beneficiaries. Following Mary Rono v Jane Rono, the court found the trial court's distribution equitable and declined to interfere, noting the only dissatisfied party was the appellant, who had adduced no supporting material. The appeal was dismissed with no order as to costs.

Key legal issues

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01

Applicable law to distribution of a polygamous intestate estate

Holding

Section 40 of the Law of Succession Act applied; the estate is divided among houses according to the number of children in each house, with surviving wives as additional units.

Reasoning

The deceased died intestate leaving two widows and twenty children in a polygamous marriage. The court was satisfied the trial court properly concluded section 40 governed, its purpose being equitable distribution without discrimination among surviving wives and children.

02

Whether the deceased gifted Bokoli/Chwele/1065 to the appellant's house inter vivos

Holding

No gift inter vivos was established; only the appellant's unsupported averments were before the court, so both properties were available for distribution under section 40.

Reasoning

Evidence must be led to establish a gift inter vivos. Aside from the appellant's averments about the deceased's purchase and settlement of her house on the parcel, no evidence was tendered. The trial court's finding to that effect could not be faulted, and section 42 considerations did not arise.

p. 7
03

Whether the appellate court should interfere with the trial court's mode of distribution

Holding

No basis for interference; the distribution was equitable, and the only dissatisfied party was the appellant who had adduced no material to displace the trial court's exercise of discretion.

Reasoning

The distribution followed the approach in Mary Rono v Jane Rono, distributing both properties equitably among beneficiaries. Although sons received larger portions than the interested daughter, no complaint was lodged by her. The appellant alone was dissatisfied and had placed no material before the trial court.

p. 7

Legal principles established

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  • The estate of a polygamous person who dies intestate must be divided among his houses according to the number of children in each house, with any surviving wife added as an additional unit, under section 40 of the Law of Succession Act.
  • A claim that a deceased made a gift inter vivos must be supported by evidence; absent such evidence, the property remains available for distribution to all beneficiaries.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Law of Succession Actsection 40
  • Law of Succession Actsection 42
  • Law of Succession Actsections 35 to 38
  • Law of Succession Actsection 31
  • Law of Succession Actsection 26
  • Probate and Administration Rules

Cases cited (4)

  • Re Estate of the Late Shwanyang Ngilochoi (Deceased)
    (2021) eKLR

    Relied on by the appellant for the estoppel submission regarding long-standing occupation per the deceased's wishes

  • Dan Ouya Kodwar versus Samuel Otieno Odwar and another
    SUCC.NO. 142 of 2015

    Two types of gifts in law: inter vivos and mortis causa

  • Re Estate of the Late Gedion Manthi Nzioka
    2015 eKLR

    Requirements for valid gifts inter vivos of land

  • Mary Rono v Jane Rono & another
    [2005] eKLR

    Equitable distribution of a deceased's property taking into consideration the circumstances of the case

On appeal from
High Court of Kenya at Bungoma
Bungoma P&A Cause No. 86 of 2000
Jurisdiction invoked
First appellate jurisdiction over an appeal from the High Court in a succession cause (Court of Appeal, Civil Appeal 21 of 2017)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Munyole v Munyole", Case Analysis (2022). Civil Appeal 21 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/373/eng@2022-02-18

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