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Court of AppealDismissedCivil Appeal 142 of 2017· [2022] KECA 435 (KLR)

Wekunda v Murunga & another

Court of Appeal
11 March 2022
1,284 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Kiage, Ngugi and Tuiyott, JJA) dismissed an appeal against the judgment of Ali-Aroni, J of the High Court at Bungoma in Succession Cause No. 64 of 1998, which distributed the estate of Sikunyili Lusike Mulia (deceased) among the deceased's biological sons Laban and Herman and a nephew, Stephen, in the proportions of 40.4 acres, 40 acres and 20 acres respectively. The appellant, a son of Stephen, contended that his father had been settled by the deceased during his lifetime on parcel EAST BUKUSU/WEST SANG'ALO/1498, invoking section 42 of the Law of Succession Act, and that the subdivision occurred in 1985 by the deceased rather than in 2000 by the sons. He also complained that the judge's distribution left out 10.6 acres and that the judge erred in finding a deceased beneficiary present at a 2015 survey. The Court applied the classic first-appeal standard from Shah v Mbogo, noting the consent order of 7th June 2004 by which the parties cancelled titles 1498, 1499 and 1500 to revert to the original title, and the surveyor's report of 17th April 2015 fixing the acreage. It held the learned judge properly exercised her discretion and declined to interfere, dismissing the appeal with costs. There was no appearance for the appellant at the hearing, though written submissions were on file.

Key legal issues

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01

Whether the High Court judge properly exercised her discretion in distributing the suit property among the beneficiaries

Holding

Yes; the judge addressed the law properly and considered all relevant factors, including the consent order cancelling the subdivisions and the surveyor's report on acreage, so the Court of Appeal would not interfere.

Reasoning

The Court noted the consent order of 7th June 2004 cancelling titles 1498, 1499 and 1500 to revert to the original title, and the surveyor's report of 17th April 2015 fixing the acreage at approximately 100.4 acres. The judge considered the parties' distribution proposals, the acreage and the law before apportioning the land. The Court found the discretion sound and correct and declined to disturb it.

02

Whether land distributed by the deceased during his lifetime (under section 42 of the Law of Succession Act) was excluded from the estate

Holding

The argument failed because the parties had, by consent in the succession proceedings, cancelled the very titles said to have been distributed inter vivos, reverting them to the original title.

Reasoning

The appellant relied on section 42 of the Law of Succession Act, contending his father had been settled on parcel 1498 by the deceased before death. However, the record contained a consent order dated 7th June 2004 in which the parties agreed that titles 1498, 1499 and 1500 be cancelled to revert to the original title No. EAST BUKUSU/WEST SANGALO/681, undermining the claim of lifetime distribution.

p. 2

Legal principles established

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  • On a first appeal, the Court of Appeal respects findings of the lower court unless it misapprehended the facts, misdirected itself in law, took into account irrelevant matters, failed to consider relevant matters, or its decision was plainly wrong.
  • An appellate court will not interfere with a trial judge's exercise of discretion in distributing a deceased's estate where the judge addressed herself properly on the law and took into account all relevant factors.

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.As Mumbi Ngugi and Tuiyott, JJA agree, it is so ordered

Authorities

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Legislation

  • Law of Succession Actsection 42

Cases cited (1)

  • Shah -vs- Mbogo & Another
    [1967] EA 1116

    First appellate court respects findings below unless the court misapprehended facts, misdirected itself in law, or its decision was plainly wrong.

On appeal from
High Court of Kenya at Bungoma
Succession Cause No. 64 of 1998
Jurisdiction invoked
First appeal to the Court of Appeal under the Law of Succession Act / Court of Appeal jurisdiction (leave to appeal noted as not sought by counsel)

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, "Wekunda v Murunga & another", Case Analysis (2022). Civil Appeal 142 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/435/eng@2022-03-11

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