Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 438 of 2019· [2022] KECA 1309 (KLR)

Koech & another v Chemutai & 2 others

Court of Appeal
2 December 2022
HOH. A. OmondiKLK. I. LaibutaMGM. Gachoka
4,966 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that polygamous family estates must be divided by counting children in each house, not split equally between houses.

What this practically means

#

Executive summary

#
The Court of Appeal (H.A. Omondi, K.I. Laibuta and M. Gachoka, JJA) dismissed an appeal against the High Court's distribution of the intestate estate of Elijah Kipketer Misoi, a polygamist who died in 1996 owning an 18-acre parcel in Kericho. The appellants, grandsons of the deceased through the predeceased son of the first house, protested the confirmation of the grant, contending that the estate should be shared equally between the two houses under Kipsigis customary law, giving their house half the estate. The High Court (J.N. Onyiego, J) instead applied section 40 of the Law of Succession Act, treating each child as a unit with the surviving spouse as an additional unit, and confirmed an equal distribution among the eleven beneficiaries. The Court of Appeal framed five issues: the interpretation of section 40, distribution by houses versus units, the applicability of Kipsigis customary law, the entitlement of a step-son, and whether the judge ignored the appellants' evidence. The court held that section 40 requires division among houses according to the number of children, with the surviving wife as an additional unit, so equal division among houses is neither contemplated nor lawful; that Kipsigis customary law was inapplicable because it conflicted with section 40 and was repugnant to justice; and that the inclusion of Lawrence Kipkurui Koech rested on unrebuted affidavit evidence. The appeal was dismissed, the High Court judgment upheld, and each party ordered to bear its own costs as a family matter.

Key legal issues

#
01

Correct interpretation of section 40 of the Law of Succession Act

Holding

Section 40 requires division among houses according to the number of children in each house, with the surviving spouse as an additional unit; equal distribution among houses is not contemplated.

Reasoning

The court traced the history of section 40 to the Report of the Commission on the Law of Succession 1968, which rejected equal division among houses as unfair and discriminatory, and endorsed prior Court of Appeal authority (Rono v Rono; Grace Samson Komen) holding that allocation between houses cannot be equal where houses have unequal numbers of children.

p. 6
02

Applicability of Kipsigis customary law

Holding

Kipsigis customary law could not apply because its proposed mode of distribution conflicts with section 40 of the Law of Succession Act and is repugnant to justice.

Reasoning

Section 2(1) of the Law of Succession Act gives the Act universal application to intestate estates of persons dying after its commencement. Section 3(2) of the Judicature Act subjects customary law to consistency with written law and to the repugnancy test. Equal division between a house of one child and a house of nine children would be repugnant to justice and discriminatory against children.

p. 7
03

Inclusion of Lawrence Kipkurui Koech as a beneficiary

Holding

The trial judge correctly included him; the assertion that he was a son of the first house's line was never rebutted by the appellants.

Reasoning

Eric Keter's replying affidavit deposed that Joshua Kipkoech Keter was polygamous and that the protestors omitted Lawrence Kipkurui Koech, a son from the second house. The appellants neither pleaded nor testified to rebut this, so the trial court properly relied on the unassailed evidence.

p. 8
04

Whether the trial judge failed to consider the appellants' evidence, authorities and submissions

Holding

The ground failed; the judge considered all the evidence and issues.

Reasoning

The court re-analysed the record as a first appeal, noting the trial court heard two witnesses for each side, and applied Jabane v Olenja on interference with trial findings, concluding the judge was right in assessing the evidence and considered all issues.

p. 9

Legal principles established

#
  • In a polygamous intestacy governed by section 40 of the Law of Succession Act, the estate is divided among houses according to the number of children in each house, with the surviving wife as an additional unit - not equally among houses.
  • Customary law applies only insofar as it is not repugnant to justice and morality or inconsistent with any written law; a customary mode of distribution that conflicts with section 40 cannot apply.
  • An appellate court will not lightly disturb findings of fact of a trial judge who saw and heard the witnesses.

Court orders

#
  1. 1.The appellants' appeal be and is hereby dismissed
  2. 2.The judgment and decree of the High Court at Nairobi (JN Onyiego) dated July 28, 2018 be and is hereby upheld
  3. 3.Each party shall bear its own costs, this being a family dispute

Authorities

#

Legislation

  • Law of Succession Actsection 40
  • Law of Succession Actsection 40(1)
  • Law of Succession Actsection 2(1)
  • Law of Succession Actsection 2(2)
  • Law of Succession Actsection 3
  • Law of Succession Actsections 35 to 38
  • Law of Succession Actsection 35
  • Law of Succession Actsection 32
  • Judicature Actsection 3(2)
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 27

Cases cited (9)

  • Selle vs Associated Motor Boat Co
    [1968] EA 123

    First appeal is by way of retrial; court re-evaluates evidence while making allowance for not seeing witnesses.

  • Abdul Hameed Saif vs Ali Mohamed Sholan
    (1955) 22 EACA 270

    Trial judge's findings of fact may be departed from where he failed to take account of particular circumstances or probabilities.

  • Mary Rono vs Jane Rono & another
    (2005) eKLR

    Section 40 does not stipulate equal portions per child; equality may work injustice, especially for young children.

  • Grace Samson Komen vs William Kiprop Komen & 2 others
    [2015] eKLR

    Allocation between houses under section 40 cannot be equal where houses have different numbers of units.

  • In re Estate of John Muia Kalii (Deceased)
    [2008] eKLR

    Source of the Report of the Commission on the Law of Succession 1968 on division among houses.

  • Jabane vs Olenja
    [1986] KLR 661

    Appellate court will not lightly differ from trial judge's findings of fact; interference only on no evidence or wrong principles.

  • Ephantus Mwangi vs Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278

    Cited within Jabane v Olenja on interference with trial court findings.

  • Mwanasokoni vs Kenya Bus Services
    (1982-88) 1 KAR 870

    Cited within Jabane v Olenja on interference with trial court findings.

  • Rono v Rono

    Authority that section 40(1) does not mean equal distribution amongst houses.

On appeal from
High Court of Kenya at Nairobi
High Court Succession Case No 401 of 1999
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (succession cause decided by the High Court); no specific constitutional provision invoked

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Koech & another v Chemutai & 2 others", Case Analysis (2022). Civil Appeal 438 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1309/eng@2022-12-02

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