In re Estate of Cypriano Imanyara Imiru (Deceased)
The bottom line
#Kenya's Court of Appeal confirmed that lifetime gifts of land to children count when dividing a deceased parent's estate, even if daughters get smaller shares.
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 distribution of the deceased's estate (the suit land) was in accordance with Article 27 of the Constitution as read together with section 38 of the Law of Succession Act
- 2.Whether the deceased died intestate such that the estate had to be distributed equally among all beneficiaries under sections 35 and 38 of the Law of Succession Act
- 3.Whether the learned judge erred in failing to have due regard to relevant evidence
Key legal issues
#Interaction of section 38 (equal division among surviving children) with section 42 (previous benefits brought into account) of the Law of Succession Act
The net intestate estate is divided equally under section 38, but only after accounting for property given or settled on a child during the deceased's lifetime under section 42.
The court held that section 42 recognises that a person may, during their lifetime, give property to or settle a child on part of their land. Any such gift or settlement must be brought into account when distributing the estate under section 38. The remainder is then divided equally among surviving children, sons and daughters alike. The trial judge's distribution, based on measured portions settled during the deceased's lifetime, was therefore correct.
Whether Article 27 of the Constitution (non-discrimination) compels equal distribution of a deceased's estate
Article 27 forbids gender discrimination, but it does not oblige a deceased to distribute assets equally among children during his lifetime, as long as none is left out.
The court affirmed that under the 2010 Constitution courts have made firm pronouncements against gender discrimination in distribution of deceased persons' property. However, where a deceased informally distributed his estate according to his wishes and beneficiaries lived on their portions for years, it is improper for a beneficiary to later claim equality. The deceased's wishes must be respected.
Whether the trial judge erred in his appreciation of the evidence
The trial judge did not err in his interpretation of the law or appreciation of the evidence; the appeal lacked merit.
Evidence established that the deceased settled his three sons on specific portions marked by planted trees, gave John Kaburu a smaller portion because he had received 3 acres at Timau, and reserved his homestead portion for all four daughters, two of whom had lived with him since 1975 and 1984. The measured acreages formed the basis of the trial judge's distribution, which the appellate court endorsed.
Legal principles established
#- Where an intestate during his lifetime settled property on a child, that benefit must be brought into account when distributing the net intestate estate under section 38 of the Law of Succession Act.
- A deceased person is not under a legal obligation to distribute his assets equally amongst his children during his lifetime, provided no child is left out.
- A child is a child regardless of gender or circumstances of birth, and each is entitled to a share in the parents' inheritance.
Court orders
#- 1.The 1st appellant's appeal was marked as withdrawn with no order as to costs
- 2.The appeal (of the 2nd appellant) is dismissed in its entirety
- 3.Each party shall bear its own costs of the appeal
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 Chuka
- H.C. Succ. Cause No. 343 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Law of Succession Act / Appellate Jurisdiction Act (not expressly stated in the judgment)
Relief refused
#Appellants' prayer that the daughters of the deceased be entitled to an equal share of the suit land as their brothers
Section 42 of the Law of Succession Act requires previous benefits/settlements to be brought into account; the deceased's lifetime distribution must be respected
Appellants' contention that the estate be distributed equally under sections 35 and 38 of the Law of Succession Act
The distribution was subject to section 42, which brings lifetime gifts and settlements into account
Costs
Each party shall bear its own costs of the appeal; the 1st appellant's appeal was withdrawn with no order as to costs.
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.
We find this appeal lacking in merit and dismiss it in its entirety. Each party shall bear its own costs of the appeal.
Such a gift or settlement must be taken into account in distributing a deceased’s estate under section 38.
This Court has long accepted that a child is a child none being lesser on account of gender or the circumstance of his or her birth.
We agree with the learned judge that in his lifetime the deceased was not under any legal obligation to distribute his assets equally amongst his children.
where a deceased person had informally distributed his estate amongst his children according to his wishes and for years they had lived on their allotted portions, it was improper for a beneficiary to claim later on that there should have been equality in the distribution of the estate
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Cypriano Imanyara Imiru (Deceased)", Case Analysis (2022). Civil Appeal 78 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1176/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.