Sewe v Sewe & another (Civil Appeal 20 of 1990) (Civ) [1991] KECA 14 (KLR)
The bottom line
#Kenya's Court of Appeal ruled family land estates should have joint administrators, not one person, to protect all beneficiaries' interests.
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 trial judge erred in not taking into account the provisions of section 29(a) of the Law of Succession Act (cap 160)
- 2.Whether the first respondent had contravened section 45(1) of the Law of Succession Act
- 3.By whom and in what manner the grant of letters of administration of the estate of Ishmael Sewe Miyumo should issue
Key legal issues
#Number of administrators where the estate property is subject to a continuing trust
The grant should issue to all interested parties jointly rather than to a sole administrator, in terms of section 58(1) of the Law of Succession Act (cap 160).
During the appeal it transpired that the property must be held on trust since all parties had an interest in it. The respondents feared that a sole administrator would sell the land on which the mother lives without their knowledge. To safeguard the property from waste and alienation and maintain peace among the family, all three were directed to apply jointly as administrators.
Distinction between administration and distribution of an estate
Obiter: the appointment of an administrator is distinct from the distribution of assets to those entitled to inherit; beneficiaries must return to court at the time of inheritance.
The court sought to make clear to the parties that being appointed administrator does not confer entitlement to inherit. Questions of who inherits the land and in what proportion are deferred to a later stage, when the parties will have sorted out the shares and must come to court for distribution.
Legal principles established
#- Where there is a continuing trust and all parties have an interest in the estate, the grant of letters of administration should not issue to one person but to all the interested parties under section 58(1) of the Law of Succession Act.
Court orders
#- 1.Appeal allowed
- 2.Rosebella Sewe, George Zablon Angungo Sewe and George Ouko Sewe alias John Ouko Sewe shall apply to be appointed administrators of the estate of Ishmael Sewe Miyumo
- 3.Each party shall bear his/her costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Kisumu
- High Court Civil Case No 8 of 1985
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate framework; the judgment does not cite a specific provision conferring jurisdiction
Relief refused
#Sole appointment of the appellant as administrator
The property should be held on trust as all parties had interest in it, and a sole grant risked waste and alienation of the land on which the mother resides
Costs
Each party shall bear his/her costs of this appeal.
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.
It is evident that the grant should not be issued in the name of one person but should be issued in terms of section 58(1) of the Succession Act (cap 160) to all the parties.
the appointment of the administrator is not the same as distributing the assets to those who are entitled to inherit. When the time comes for inheritance, they will have to come to court by which time they will have sorted out who shall inherit the land and in what proportion.
we allow this appeal and order that Rosebella Sewe, George Zablon Angungo Sewe and George Ouko Sewe alias John Ouko Sewe shall apply to be appointed administrators of the estate of Ishmael Sewe Miyumo. Each party shall bear his/her costs of this appeal.
Issues in the judgment
#The judgment headnote lists the trial judge as 'Butler-Sloss J' at the High Court at Kisumu, which may be a reporting error, but this is recorded as printed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sewe v Sewe & another (Civil Appeal 20 of 1990) (Civ) [1991] KECA 14 (KLR)", Case Analysis (1991). Civil Appeal No 20 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1991/14/eng@1991-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.