Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in judgment

In re Estate of Gwonda Kebate, Kebate Kebate, Ondande Kebate & Onchere Kebate (Deceased) (Civil Appeal 108 of 2019) [2024] KECA 784 (KLR)

Court of Appeal
5 July 2024
3,083 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal upheld that a plot given as a gift decades ago stays with the recipient's family, and family members lost their challenge to the inheritance.

What this practically means

#

Executive summary

#
Three first cousins of four deceased brothers (Gwonda, Ondande, Onchere and Kebate Kebate), registered as proprietors of Nyaribari Chache/B/B/Boburia/2460, appealed against a High Court ruling of 20th May 2019 dismissing their summons for revocation of a grant confirmed to the respondent, the deceased brothers' daughter-in-law, who had taken the plot absolutely. The trial judge had found the plot was gifted by Gwonda to the respondent's husband Charles for caring for him, that the brothers who died in the 1960s were governed by customary law, and that the appellants failed to disclose beneficiaries themselves and had not proved grounds for revocation under section 76 of the Law of Succession Act. Before the Court of Appeal (Okwengu, Omondi and Ngugi JJA), the respondent argued leave to appeal was required in succession matters and had not been sought. The court reviewed conflicting authority - Julius Kamau Kithaka (Odek JA, no leave needed for revocation appeals) against Joyce B. Nyamweya and Dhadialla v Chaudhri - and adopted the latter view that leave is generally required, holding the appeal infirm on that account, though it proceeded to consider the merits. On the merits, applying Isabel Chelangat and Cheshire & Burn, the court presumed a joint tenancy (survivorship passing the whole to Gwonda), found sufficient unrebutted evidence of the gift inter vivos to Charles, and agreed the appellants, who had their own land, failed to discharge their burden under section 76. The appeal was dismissed with each party bearing their own costs, this being a family matter. The binding takeaway: leave is generally required for succession appeals to the Court of Appeal, and a conveyance without words of severance raises a presumption of joint tenancy.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction to entertain the appeal without leave
  2. 2.Whether the property was held jointly or held in common by the four deceased brothers
  3. 3.Whether Plot 2460 was gifted to the respondent's husband
  4. 4.Whether the appellants discharged their burden to show the grant should be revoked under section 76 of the Law of Succession Act

Key legal issues

#
01

Whether leave to appeal was required in succession matters

Holding

Although the court noted Odek JA's contrary view in Julius Kamau Kithaka, it aligned itself with the Dhadialla line of authority that leave is generally required for succession appeals; leave was not obtained, rendering the appeal infirm.

Reasoning

The respondent argued the appeal was devoid of merit for want of leave. The court reviewed conflicting authorities: Julius Kamau Kithaka (no leave needed for revocation applications) and Joyce B. Nyamweya and Dhadialla v Chaudhri (leave generally required). It adopted the latter position as the general rule, but noted the result would be no different on the merits.

p. 4
02

Whether the property was held jointly or in common

Holding

Applying Cheshire & Burn's principle via Isabel Chelangat, the court presumed a joint tenancy as the register did not indicate distinct shares, meaning the last surviving brother effectively inherited the whole.

Reasoning

The register did not indicate whether proprietorship was joint or in common. Relying on the cited texts, land conveyed to co-owners without words of severance raises a presumption of joint tenancy with the right of survivorship, so Gwonda, the last to die, took the whole of Plot 2460.

p. 6
03

Whether Plot 2460 was gifted to the respondent's husband

Holding

The court agreed with the trial judge that there was sufficient unrebutted testimony of a gift inter vivos by Gwonda to Charles, and that the respondent was entitled upon Charles's demise to apply for letters of administration.

Reasoning

The respondent and her witness DW1 gave unrebutted testimony that Gwonda gave the plot to Charles in gratitude for care in his old age, and the family lived on it without protest for many years. Once gifted, the property ceased to form part of the brothers' distributable estates.

p. 6
04

Whether the grant should be revoked under section 76

Holding

The appellants had their own parcels of land and were not dependent on the suit property, and failed to discharge their burden of proving grounds for revocation under section 76 of the Law of Succession Act.

Reasoning

Revocation under section 76 requires proof of defects such as concealment of material facts. The appellants themselves failed to disclose beneficiaries, each had their own land, and their claim under section 39 was subject to section 42. The trial judge's dismissal of the revocation summons was therefore correct.

p. 6

Legal principles established

#
  • As a general matter, one needs leave to appeal to the Court of Appeal on succession matters.
  • Where land is conveyed or devised to two or more persons without words showing distinct and separate shares, a presumption of joint tenancy arises.
  • On a first appeal, the Court of Appeal has a duty to evaluate the evidence on the record and reach its own independent conclusion.

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.Each party to bear their own costs, this being a family matter

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court
Not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal under rule 31(1)(a) of the Court of Appeal Rules; the court held no leave was required under the Law of Succession Act for an appeal from a revocation application, though it found leave was generally needed and the appeal infirm for want of it

Relief refused

#

Setting aside the High Court ruling of 20th May 2019 and allowing the summons for revocation of grant dated 19th September 2018

The court found the gift inter vivos unrebutted and the appellants failed to discharge their burden of proving grounds for revocation; the appeal was also infirm for want of leave

p. 6

Costs

Each party to bear their own costs, this being a family matter.

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.

In conclusion this appeal fails and the same is dismissed. Each party to bear their own costs, this being a family matter.
p. 6Final orders - dismissal and costs
The appeal herein is, therefore, infirm on that account. As we demonstrate below, however, the result would not be difierent even if we considered the appeal on its substantive merits.
p. 4Leave to appeal in succession matters
Applying this principle to the present case, this Court would hold the deceased brothers as joint proprietors. That is to say that a presumption would arise that the tenancy is intended to be joint.
p. 6Presumption of joint tenancy
We, thus, agree with the learned judge that the appellants did not discharge their burden to show that the grant issued and confirmed to the respondent should be revoked as per the provisions of section 76 of the Law of Succession Act.
p. 6Burden of proof on revocation of grant

Issues in the judgment

#
minor

The judgment states on the one hand that the appeal was infirm for want of leave, yet proceeds to determine it on the merits without explaining the basis of jurisdiction; the leave holding (no leave needed per Odek JA vs leave required per Dhadialla) is left in tension with the court's decision to hear the appeal substantively.

minor

The judgment records in one passage that the learned judge held Gwonda died in 1999, whereas earlier in the judgment the death certificate is said to show Gwonda died on 17th August 1991.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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, "In re Estate of Gwonda Kebate, Kebate Kebate, Ondande Kebate & Onchere Kebate (Deceased) (Civil Appeal 108 of 2019) [2024] KECA 784 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/784/eng@2024-07-05

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