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Court of AppealDismissedCivil Appeal No. 282 of 2006

Kitur Arap Muzee v Mary Jeptarus Mibei [2012] KECA 86 (KLR)

Court of Appeal of Kenya
19 September 2012
2,161 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This Court of Appeal at Eldoret appeal arose from a ruling by Ibrahim, J. of the High Court at Eldoret in Miscellaneous Succession Cause No. 193 of 2005, dated 19th October 2006. The underlying estate was that of Kipkolum Arap Mibei, who died on 19th August 1978, leaving land known as Nandi/Petty/Cheptil/6. The three widows recorded consents in 1980-1981 distributing the land, and the succession cause in the Kapsabet magistrate's court was concluded. Years later, in 2005, an application under section 71(1) and (3) of the Law of Succession Act led to confirmation of a grant on 17th May 2005, which the respondent challenged by seeking annulment under sections 47 and 76 of the Act. The High Court sustained the appellant's preliminary objection that the Act did not apply to the pre-1981 estate, but nonetheless exercised supervisory powers to quash the confirmation and declare resulting dealings null and void. The appellant appealed on six grounds. Okwengu, JA, in the lead judgment, held that the Law of Succession Act, having come into force on 1st July 1981, did not apply to the estate of a person who died in 1978; that the 2005 confirmation of grant was incompetent and null and void; that the magistrate had no power to substitute the appellant for a deceased widow after the cause was concluded, amounting to an abuse of process; and that the High Court correctly exercised its supervisory jurisdiction suo moto, including on costs. Onyango Otieno, JA concurred. The appeal was dismissed with costs to the respondent. The judgment was delivered under Rule 32(3) as Omolo, JA was not performing judicial functions.

Questions the Court framed

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

  1. 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. 2.Whether the confirmation of grant issued on 17th May 2005 by the Principal Magistrate's court was competent
  3. 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. 4.Whether the award of costs to the respondent should be disturbed

Key legal issues

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01

Applicability of the Law of Succession Act to pre-1981 estates

Holding

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.

Reasoning

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.

p. 4
02

Abuse of process and supervisory jurisdiction of the High Court

Holding

The High Court properly exercised its supervisory powers suo moto to quash the irregular confirmation of grant and declare dealings thereunder null and void.

Reasoning

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.

p. 4
03

Costs of the annulment application

Holding

The award of costs to the respondent was proper because she was forced to seek annulment of orders obtained irregularly by the appellant.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal dismissed with costs to the respondent

The bench

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

majority

Wrote the judgment

concurring

Wrote the judgment

Concurred fully with the lead judgment of Okwengu, JA and proposed dismissal of the appeal with costs.

I have read the judgment prepared by Okwengu, JA. I agree with her fully and I have nothing useful to add.p. 4
OM
majority
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

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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

p. 4

Costs

Appeal dismissed with costs to the respondent.

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.

In accordance with Sections 2(1) & (2) of the Law of Succession Act, that Act was not applicable to the estate of the deceased.
p. 4Non-retrospectivity of the Law of Succession Act
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.
p. 4Incompetence of confirmation of grant
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.
p. 4Supervisory jurisdiction over subordinate courts
The upshot of the above is that I find no merit in this appeal and would therefore dismiss it with costs.
p. 4Final orders - dismissal of appeal

Issues in the judgment

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minor

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.

minor

Inconsistent spelling of the deceased widow's name across the judgment (Jeptum Elizabeth Mibei, Cheptum Elizabeth Mibei, Elizabeth Mibei).

minor

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

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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, "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.