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High CourtDismissedChamber Summons dated 24th October, 2018 (Succession Cause, Kitale)· [2019] KEHC 3564 (KLR)

DANIEL K TABUT v ANNAH CHEPKOSKEI CHEBII

High Court of Kenya
23 July 2019
HCH K Chemitei
602 words in judgment
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The bottom line

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Lifetime permission from a deceased person to use land does not automatically grant you a larger share of the inheritance.

What this practically means

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Executive summary

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The Applicant, sole child of the first house of a polygamous deceased, sought by chamber summons dated 24th October, 2018 a review of the grant confirmed on 20th May, 2018, so as to receive 25 acres out of Land Parcel Cherangani/Nzoia Block 4 Mwaita/42, with the remaining 55.1 acres shared by his siblings and other beneficiaries. He relied on the deceased's lifetime permission for him to utilise that portion and argued the Respondent's house would not be prejudiced. The Respondent, the remaining widow with seven children by the deceased, opposed, contending the review would disadvantage her house. The court confirmed jurisdiction to review its orders under Section 63 of the Law of Succession Act, which imports Order 45 of the Civil Procedure Rules. It found no error apparent on the face of the record and no new or important fact unknown to the applicant at confirmation, noting he had conceded to confirmation. Applying Sections 35, 38 and 40 of the Act, the court held that a polygamous estate must be distributed to the children in equal shares and that lifetime permission to use land did not confer a right to inherit it. The application was dismissed with costs on 23rd July, 2019, delivery occurring in the parties' absence.

Key legal issues

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01

Whether grounds for review under Order 45 (error on the face of the record or newly discovered facts) were established

Holding

Not established; the applicant conceded to confirmation and showed no new fact or error

Reasoning

The court applied Section 63 of the Succession Act importing Order 45 CPR requirements. The applicant had consented to confirmation of the grant and failed to identify any error apparent on the record or any new and important fact unknown to him at confirmation. Lifetime utilisation permitted by the deceased was not such a fact.

p. 1
02

Whether the applicant was entitled to a larger share than his siblings

Holding

No; Sections 35, 38 and 40 of the Succession Act envisage equal distribution among children of a polygamous estate

Reasoning

The court held that the spirit and letter of Sections 35, 38 and 40 mandate equal distribution. The applicant, sole child of the first house, gave no legal basis to be favoured over the children of the second house. The deceased's permission to utilise 25 acres during his lifetime did not amount to a testamentary disposition.

p. 1

Legal principles established

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  • A court may review its orders in succession matters under Section 63 of the Law of Succession Act by applying Order 45 of the Civil Procedure Rules
  • In a polygamous estate, absent other proof, the estate is distributed to the children in equal shares; lifetime permission by the deceased to use land does not confer a larger inheritance

Court orders

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  1. 1.The application for review of the grant confirmed on 20th May, 2018 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Law of Succession ActSection 63
  • Law of Succession ActSections 35, 38 and 40
  • Civil Procedure RulesOrder 45
Jurisdiction invoked
Section 63 of the Law of Succession Act read with Order 45 of the Civil Procedure Rules

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, "DANIEL K TABUT v ANNAH CHEPKOSKEI CHEBII", Case Analysis (2019). Chamber Summons dated 24th October, 2018 (Succession Cause, Kitale). Source:

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