Francis Mwai Karani v Robert Mwai Karani [2012] KECA 45 (KLR)
The bottom line
#The Court of Appeal confirmed that land a father gave his sons while alive is counted as their inheritance, so only the daughters and grandson share the remaining 3.8 acres.
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 remaining portion of land measuring about 3.8 acres should be shared only by the daughters and the grandson, or whether the sons who had already received 2 acres each during the deceased's lifetime are also entitled to a share of it.
Key legal issues
#Whether sons who received 2 acres each during the deceased's lifetime were entitled to a share of the residual 3.8 acres
They were not; their lifetime gifts had to be brought into account under Section 42 of the Law of Succession Act, leaving the 3.8 acres to the daughters and the grandson as proposed by the administrator and upheld by the High Court.
The court reproduced Section 42 of the Law of Succession Act, which mandates that property paid, given or settled on a child, grandchild or house during an intestate's lifetime be taken into account in determining the share of the net intestate estate. Since each of the four sons had already received 2 acres with separate titles issued, their portions were advances on their inheritance. The appellant had also conceded that the daughters were entitled to a portion of the deceased's land. On that basis the Court found the High Court's approach correct and declined to interfere.
Legal principles established
#- Property given or settled on a child, grandchild or house during an intestate's lifetime must be brought into account when determining that beneficiary's share of the net intestate estate, so that lifelong gifts to sons do not entitle them to a further share of the residue.
Court orders
#- 1.The appeal be and is hereby dismissed
- 2.The judgment of the High Court (Khaminwa, J.) dated 28th June 2006 dismissing the protest stands
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the principal judgment dismissing the appeal, holding that Section 42 of the Law of Succession Act required inter vivos gifts to the sons to be brought into account, so the residual 3.8 acres properly devolved on the daughters and grandson.
In view of the foregoing, I am satisfied that the learned Judge adopted the correct approach in reaching her conclusion.p. 3
Wrote the judgment
Concurred fully with Koome, JA and proposed that the judgment of the Court be in the terms she suggested; the appeal was dismissed as proposed.
I have had the opportunity of reading in draft the judgment of my sister, Koome, JA. I agree with her fully and have nothing useful to add.p. 3
- On appeal from
- High Court of Kenya at Embu
- Succession Cause No. 221 of 2004
- Jurisdiction invoked
- First appeal from the High Court in a succession cause; judgment delivered under Rule 32(2) of the Court of Appeal Rules
Relief refused
#Equal apportionment of the 3.8 acres between the two houses of the deceased in accordance with the law of succession, as sought by the appellant
Section 42 of the Law of Succession Act requires property settled on a child during the deceased's lifetime to be taken into account on distribution, and the Judge had adopted the correct approach; the appellant had admitted the daughters were entitled to a portion.
Costs
No costs order is recorded in the judgment.
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.
that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house
For the foregoing reasons, I find no merit in this appeal. I order that the same be and is hereby dismissed.
I therefore cannot interfere with the judgment of the learned Judge.
Issues in the judgment
#The judgment contains internal date discrepancies: the cause prefacing the judgment refers to Succession Cause No. 221 of 2004 while the body states 'Succession Cause No. 221 of 2006'; the appeal is also recorded as heard on 7th February, 2012 but delivered on 25th October, 2012.
The judgment states it was delivered under Rule 32(2) because O'Kubasu, J.A. is no longer performing judicial functions, but O'Kubasu, J.A. does not appear as a signatory or member of the coram.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Mwai Karani v Robert Mwai Karani [2012] KECA 45 (KLR)", Case Analysis (2012). Civil Appeal 115 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/45/eng@2012-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.