Ndorobwa & 3 others v Marango & another
The bottom line
#Kenya's Court of Appeal confirmed that land a father gave his sons while alive counts when dividing his estate, so they get no extra share.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit property was held by the deceased in trust for the respondent
Yes; the deceased registered the property in his name because the respondent was a minor, and the appellants had each already received 15 acres inter vivos
The court re-evaluated the evidence as a first appellate court. Three older sons each had a 15-acre parcel registered in their names; the deceased lived on the suit property with the respondent, who was a minor at registration. The 1st appellant conceded the property was registered in the father's name on behalf of the respondent. Section 42 required the inter vivos benefits to be counted.
Whether the 1985 clan decision entitled the appellants to 2 acres each
No; no clan member testified, and in any event such a decision would not bind the court
The appellants did not call any clan member to prove the alleged 1985 meeting and decision. Even if proved, the trial court correctly held it would not be binding. Having received 15 acres each in the deceased's lifetime, giving them a further 2 acres at the respondent's expense would be unfair.
Legal principles established
#- A first appellate court must re-evaluate the evidence before the trial court and reach its own conclusion
- Gifts inter vivos to a beneficiary are taken into account in distributing the net intestate estate under section 42 of the Law of Succession Act
- A clan's decision on distribution of an intestate estate is not binding on the court
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Each party to bear its own costs
- On appeal from
- High Court of Kenya at Bungoma
- Probate & Administration Cause No. 403 of 2010 formerly High Court Civil Appeal No. 72 of 1995
- Jurisdiction invoked
- First appellate jurisdiction over the High Court in a succession appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndorobwa & 3 others v Marango & another", Case Analysis (2022). Civil Appeal 33 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1040/eng@2022-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.