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Court of AppealAllowedCivil Appeal 193 of 2003

Samson Kigen v Kiprotich Kigen [2008] KECA 158 (KLR)

Court of Appeal of Kenya
30 May 2008
645 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled that a co-wife and her step-children cannot challenge a deceased woman's will because they aren't legal dependants or beneficiaries.

What this practically means

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Executive summary

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This is the concurring judgment of Bosire JA in an appeal against the judgment and decree of Nambuye J. of the High Court at Eldoret dated 21 February 2003 in H.C. Succ. Cause No. 115 of 1996, delivered at Eldoret on 30 May 2008 together with the principal judgment of O'Kubasu JA pursuant to rule 32(3) of the Court of Appeal Rules, Deverell JA having heard the appeal but retired before delivery. The dispute concerned an application for revocation of a grant of probate of the will of Soti Kigen, the first wife of Kigen Sitienei, on grounds including alleged fraudulent transfer of land into the deceased's name to defeat the claims of Jane Kigen, the second wife, and her children. Bosire JA held that section 29 of the Law of Succession Act defines dependants such that a co-wife is not a dependant of her co-wife, and a step-child qualifies only where the deceased had taken the child into his family as his own. Neither the respondent nor his mother were dependants or beneficiaries of the deceased's estate, and were therefore not 'interested' parties under section 76 entitled to seek revocation. He added that whatever the registered owner did with his property was within his power. The High Court judge erred by proceeding as though the deceased was parent to both sides by one mother. The appeal was allowed on the terms proposed by O'Kubasu JA. The judgment binds subordinate courts on the standing requirements for revocation applications under sections 29 and 76 of the Law of Succession Act.

Questions the Court framed

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

  1. 1.Whether the respondent and his mother Jane Kigen were dependants of the deceased Soti Kigen within the meaning of section 29 of the Law of Succession Act
  2. 2.Whether they were interested parties entitled under section 76 of the Law of Succession Act to apply for revocation of the grant of probate of the deceased's will
  3. 3.Whether the High Court's judgment revoking the grant was legally sound given their lack of standing

Key legal issues

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01

Standing to seek revocation of a grant of probate

Holding

Neither the respondent nor his mother, being neither dependants nor beneficiaries of the deceased's estate, had locus standi to apply for revocation of the grant.

Reasoning

The respondent was the step-son of the deceased only by virtue of his father's marriage to Jane Kigen; the deceased was the first wife. Section 29 defines dependants, excluding a co-wife as a dependant of her co-wife and including a step-child only where the deceased took the child into his family as his own. Having deposed that she had been chased out of the matrimonial home in 1979, Jane and her children were not dependants or beneficiaries, hence not interested parties under section 76.

p. 2
02

Free disposition of property by a registered owner

Holding

Whatever the husband Kigen Sitienei did with his own registered property was within his power, so an alleged fraudulent transfer to defeat co-wife/children claims could not found a revocation application by non-beneficiaries.

Reasoning

It was conceded that all the assets listed in the schedule to the petition were registered in the deceased's name, and Jane deposed that the husband was the registered owner of the family land before the transfers. Bosire JA reasoned that a registered owner may deal with his property as he wishes; the grievance of Jane and her children over the transfers did not confer on them the status of interested parties in the deceased's estate.

p. 2
03

Error of the court below in treating the parties as siblings of one mother

Holding

The High Court judge proceeded on a mistaken factual premise that the deceased was the mother of both sides, vitiating her analysis of standing.

Reasoning

Nambuye J. treated the deceased as father of both the appellant and respondent and their siblings by one mother, when in fact the deceased was the first wife and Jane Kigen the second wife of Kigen Sitienei. This misapprehension led the court below to overlook that the applicant for revocation was, in substance, a stranger to the deceased's estate, undermining the foundation of the revocation order.

p. 1

Legal principles established

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  • A co-wife is not a dependant of her co-wife within section 29 of the Law of Succession Act, and a step-child qualifies only if the deceased had taken that child into his family as his own.
  • Only persons who are dependants or beneficiaries of a deceased's estate are 'interested' parties entitled under section 76 of the Law of Succession Act to apply for revocation of a grant of probate.

Court orders

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  1. 1.Appeal allowed on the terms proposed by O'Kubasu JA (the precise orders appear in O'Kubasu JA's judgment, which is not part of the text supplied)

The bench

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

concurring

Wrote the judgment

Bosire JA, concurring with O'Kubasu JA's draft judgment, added his own reasons: the respondent and his mother Jane Kigen were not dependants of the deceased within section 29 of the Law of Succession Act - a co-wife is not a dependant of her co-wife and the step-child inclusion requires one 'whom the deceased had taken into his family as his own' - and so they were not interested parties entitled to apply for revocation of the grant of probate under section 76.

So it is quite clear that neither the respondent nor his mother were dependants of the deceased nor were they beneficiaries of her estate as to be entitled to apply for revocation of the grant of probate of Soti Kigen's will.p. 2
majority

Wrote the judgment

majority
On appeal from
High Court of Kenya at Eldoret
H.C. Succ. Cause No. 115 of 1996
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (judgment and decree of the High Court); delivered pursuant to rule 32(3) of the Court's Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A cowife is not included as dependant of her co-wife. The definition includes a step-child. However, there is a rider added. It must be one “whom the deceased had taken into his family as his own.”
p. 1Definition of dependant under section 29, Law of Succession Act
So it is quite clear that neither the respondent nor his mother were dependants of the deceased nor were they beneficiaries of her estate as to be entitled to apply for revocation of the grant of probate of Soti Kigen's will.
p. 2Locus standi for revocation of grant under section 76
I would too allow the appeal on the terms proposed by O’Kubasu J.A
p. 2Final orders - appeal allowed

Issues in the judgment

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material

The text supplied contains only the separate concurring judgment of Bosire JA; the principal judgment of O'Kubasu JA, which contains the court's full reasoning and the proposed orders, is not included, so the precise final orders and any costs direction cannot be quoted verbatim.

minor

The case caption names Samson Kigen as appellant, but Bosire JA refers to 'the appellant Kiprotich Kigen', who is named as respondent in the caption - an internal inconsistency in the judgment.

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, "Samson Kigen v Kiprotich Kigen [2008] KECA 158 (KLR)", Case Analysis (2008). Civil Appeal 193 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/158/eng@2008-05-30

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