Kitur Arap Muzee v Mary Jeptarus Mibei [2012] KECA 86 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the Law of Succession Act doesn't apply to estates of people who died before 1 July 1981, voiding a 2005 grant over a 1978 estate.
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 Law of Succession Act, Cap 160 applied to the estate of a deceased who died on 19th August 1978, before the Act came into force on 1st July 1981
- 2.Whether the confirmation of grant issued on 17th May 2005 by the Principal Magistrate's court was competent
- 3.Whether the High Court properly exercised its supervisory jurisdiction to quash the confirmation of grant as an abuse of the process of the court
- 4.Whether the award of costs to the respondent should be disturbed
Key legal issues
#Applicability of the Law of Succession Act to pre-1981 estates
The Act did not apply to the estate of a deceased who died on 19th August 1978, before the Act came into force on 1st July 1981.
Sections 2(1) and (2) of the Law of Succession Act apply the Act only to estates of persons dying after its commencement. Succession cause No. 31 of 1980 was not commenced pursuant to the Act, and the distribution recorded on 20th May 1981 concluded the proceedings. Any confirmation of grant under the Act long after conclusion was therefore incompetent and null and void.
Abuse of process and supervisory jurisdiction of the High Court
The High Court properly exercised its supervisory powers suo moto to quash the irregular confirmation of grant and declare dealings thereunder null and void.
The District Magistrate had no power to substitute the appellant in place of Jeptum Elizabeth Mibei or issue a certificate of confirmation under the Law of Succession Act after the cause had been concluded. The learned Judge was right to correct this abuse which had come to his notice, notwithstanding that he had sustained the preliminary objection on jurisdiction.
Costs of the annulment application
The award of costs to the respondent was proper because she was forced to seek annulment of orders obtained irregularly by the appellant.
The respondent had no option but to move the High Court to annul the confirmation of grant obtained irregularly by the appellant. The appellate court found no reason to interfere with the trial judge's discretion on costs, confirming that a party who obtains orders irregularly bears the costs of correcting them.
Legal principles established
#- The Law of Succession Act applies only to estates of persons dying after its commencement on 1st July 1981, and proceedings concluded before that date cannot be revived or confirmed under it.
- A court which has concluded the distribution of a succession estate is functus officio and cannot subsequently confirm a grant under the Law of Succession Act.
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Misc. Succ. Cause No. 193 of 2005
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court in succession proceedings
Relief refused
#The appellant's appeal against the High Court ruling quashing the certificate of confirmation of grant
The confirmation of grant under the Law of Succession Act was incompetent as the Act did not apply to the deceased's estate and the succession cause had been concluded in 1981
Costs
Appeal dismissed with costs to the respondent.
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 accordance with Sections 2(1) & (2) of the Law of Succession Act, that Act was not applicable to the estate of the deceased.
the application filed on 28th April 2005, by Martha Jepkoskei Kipkolum under section 71(1) and (3) of the Law of Succession Act, for confirmation of the grant issued on 20th May, 1981 was incompetent, and the order of confirmation of grant made on 17th May, 2005, and certificate of grant issued on the same date were null and void.
I find that the learned Judge was right in exercising his supervisory powers suo moto, to correct this abuse which had come to his notice.
The upshot of the above is that I find no merit in this appeal and would therefore dismiss it with costs.
Issues in the judgment
#Internal inconsistency on the date of conclusion of the succession proceedings: paragraph 13 states the proceedings were concluded on 20th May 1982, while paragraph 1 records the consent as recorded on 31st July 1980 and paragraph 3 refers to a grant issued on 20th May 1981, and paragraph 13 elsewhere refers to the confirmation being issued on 20th May 1981.
Inconsistent spelling of the deceased widow's name across the judgment (Jeptum Elizabeth Mibei, Cheptum Elizabeth Mibei, Elizabeth Mibei).
The appellant's counsel is recorded as referring to a certificate of confirmation issued on 28th April 2005 while the judgment elsewhere records it as 17th May 2005.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitur Arap Muzee v Mary Jeptarus Mibei [2012] KECA 86 (KLR)", Case Analysis (2012). Civil Appeal No. 282 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/86/eng@2012-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.