In re Estate of Mbiyu Koinange (Deceased) - Margaret Njeri Mbiyu v David Njunu Mbiyu Koinange & 13 Others
The bottom line
#Kenya's Court of Appeal confirmed two women as widows of Mbiyu Koinange and ordered his vast estate redistributed afresh by a different High Court judge.
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 learned judge erred by holding that Margaret and Eddah were not widows and beneficiaries of the deceased
- 2.Whether the learned judge erred by failing to direct Margaret and Eddah to refund to the estate all payments made to them
- 3.Whether the learned judge erred by holding that Sylvia is not a biological child and beneficiary of the deceased
- 4.Whether the learned judge erred by failing to determine all the issues raised by the parties
- 5.Whether the learned judge erred by distributing the estate in a skewed manner and failing to distribute all of it
- 6.Whether the learned judge erred by finding that Kiambaa/Waguthu 2324 and the shares in Ocean View Beach Hotel Ltd were part of the estate and available for distribution
- 7.Whether the learned judge erred by holding that Muthera farm was part of the estate and available for distribution
- 8.What orders should be made as regards the award made by the High Court to Tangulizi
- 9.What orders should be made as regards the costs of the appeal and of the proceedings in the High Court
Key legal issues
#Validity of Margaret's statutory marriage to the deceased
The trial judge erred in holding the marriage invalid for want of the deceased's capacity; the issue of a prior customary marriage was never pleaded, and the marriage certificate was prima facie proof of due compliance with the repealed Marriage Act.
The parties' pleaded case was that Margaret was validly married but divorced; the judge introduced the capacity issue himself. The prior customary marriage to Damaris was pure speculation based on ethnicity and era. Section 11(1)(d) required the registrar's satisfaction before issuing a certificate; sections 34 of the repealed Act and 83(1) of the Evidence Act made the certificate admissible and presumed genuine. No evidence of divorce was adduced, but separation alone does not defeat widowhood under the Law of Succession Act.
Whether Eddah was a widow and beneficiary by presumption of marriage
Yes. Consistent and cogent evidence showed the deceased's clan and family accepted and treated Eddah as his widow; the trial judge erred in ignoring that evidence and prior judicial determinations by judges of concurrent jurisdiction.
Eddah failed to prove a Kikuyu customary marriage (essential rites such as ngurario and ruracio were admittedly not performed), but the presumption of marriage arises from long cohabitation and general repute without need for rites. The family's conduct over 30 years - depositions by Isaac and Charles Karuga Koinange, appointment of four administrators, partial confirmations under section 71, transfer of ancestral land and shares - estopped the respondents from denying her status.
Res judicata and the partial confirmations of grant
The partial confirmations by Koome and Nambuye JJ. were under section 71 of the Law of Succession Act, identified Margaret and Eddah as beneficiaries, and created legal rights that Musyoka J., a judge of concurrent jurisdiction, could not overlook or reverse.
A grant cannot be confirmed even partially without identifying beneficiaries; affidavit evidence is evidence. Musyoka J. treated the application as if no partial confirmations existed and purported to sit in review over concurrent judges without a review application. The proper course was appeal or a proper application for review in the High Court.
Sylvia's paternity and legitimacy
The trial judge did not err in finding no credible evidence that Sylvia was a child of the deceased; the presumption of legitimacy under section 118 of the Evidence Act was inapplicable given the contested marriage, and she refused the DNA test and did not testify.
Section 118 applies to birth during a valid marriage; Eddah's marriage was hotly contested and Sylvia's paternity disputed. Having been given the opportunity to undergo DNA testing and to testify, her excuses sounded more like reasons of convenience. Samples from the deceased's disinterred remains might well have degraded, as in EMM v. IGM.
Transfer of the Ocean View Beach Hotel Ltd shares to Eddah by nomination
The trial judge erred; the former Companies Act permitted transfer of shares in manner provided by the articles, and the personal representative could transfer shares to the deceased's nominee if the articles so provided. The respondents bore the onus of proving the articles did not allow it.
Sections 75, 78 and 79 of the former Companies Act make shares movable property transferable per the articles and validate transfers by personal representatives. The judge made findings on an issue the parties had not presented, and misread the Act. The willingness of the company and administrators to transfer the shares suggested the articles sanctioned the transfer.
Validity of the Muthera farm sale to Impulse
The transaction was void for all purposes for want of Land Control Board consent; the SFT's role was peripheral and section 6(3)(b) exemption did not apply. The farm remained part of the estate.
Muthera farm is agricultural land within a land control area; consent was neither applied for nor obtained. The agreement was between the administrators and Impulse, not the SFT. A void transaction whose furtherance is a criminal offence under section 22 cannot be enforced by a court. The evidence also showed fraud: purported payment to SFT, transfer before stamp duty, and under-declaration of the purchase price.
Kiambaa/Waguthu 2324
The parcel was the deceased's inheritance from his father and, transferred after his death by a clan that was not the administrator, forms part of the estate; if Eddah elects to retain it, her share is reduced accordingly.
The judgment in Koinange & 13 Others v. Koinange directed transfer to the house of the deceased's mother, not to Eddah. The clan elders' transfer to Eddah indicated they regarded her as the youngest widow, but the clan had no power under the Law of Succession Act to deal with the parcel.
Legal principles established
#- A court has no power to determine issues not raised in the pleadings or otherwise consented to
- The existence of a customary marriage is a matter of fact proved by evidence; it cannot be presumed from ethnicity alone
- A judge of concurrent jurisdiction cannot review or reverse the orders of another judge of the same court; the remedy is appeal or proper review
- A controlled transaction in respect of which Land Control Board consent has not been obtained is void for all purposes
- A court ought not to enforce an illegal contract where the illegality is brought to its notice and the party invoking its aid is implicated in the illegality
- A party who by declaration, act or omission intentionally caused another to believe a thing true and act on it is estopped from denying it
- A woman married under a system of law permitting polygamy remains a wife for purposes of the Law of Succession Act notwithstanding her husband's previous or subsequent monogamous marriage
- A respondent who is content with a judgment cannot attack aspects of it without filing a notice of cross-appeal
Court orders
#- 1.Margaret and Eddah declared widows and beneficiaries of the deceased, each of their houses comprising the widow only
- 2.No order directing Margaret and Eddah to refund payments already made to them from the estate
- 3.Declaration that there is no evidence that Sylvia is a biological child and beneficiary of the deceased; her cross-appeal dismissed
- 4.Kiambaa/Waguthu 2324 declared part of the estate; if Eddah elects to keep it, her share shall be reduced accordingly
- 5.The deceased's shares in Ocean View Beach Hotel Ltd declared validly transferred to Eddah and not available for distribution
- 6.Muthera farm declared part of the estate and available for distribution; Impulse's appeal dismissed
- 7.Tangulizi affirmed as entitled to 4.5 acres from Barbara's share in Title No. Kiambaa/Thimbugua/819
- 8.Matter remitted to the High Court for re-distribution of the estate by a judge other than Musyoka, J., to be mentioned before the presiding judge, Family Division, within 15 days for directions on priority hearing
- 9.The estate to bear the costs of the administrators; all other parties to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Succession Cause No. 527 of 1981
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Appellate Jurisdiction Act (first appeal from the High Court in a succession cause)
- Consolidated with
- Civil Appeal 50 of 2016, Civil Appeal 56 of 2016
Relief refused
#Sylvia's cross-appeal seeking recognition as a child and beneficiary of the deceased
She was afforded an opportunity to testify and undergo DNA testing but rebuffed both; no credible evidence of paternity
Impulse Developers' appeal against nullification of the Muthera farm sale
The transaction was void for want of Land Control Board consent and tainted by fraud
Cross-appeals by Kihara, Mbatia and Waiganjo seeking refund of payments to Margaret and Eddah
Moot once the court found both were widows and beneficiaries
Lennah's proposal to apply matrimonial property principles limiting distributable estate to 55%
Neither Margaret nor Eddah claimed contribution to acquisition of the estate
Costs
The estate shall bear the costs of the administrators and all the other parties shall bear their own costs.
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.
Cases must be decided on the issues on the record. The court has no power to make an order, unless by consent, which is outside the pleadings. In this instance, the issues raised by the Judge and the order thereon, was a nullity.
Ultimately and with respect, the learned judge erred by purporting to reverse, without jurisdiction or being properly moved, the earlier findings of the two judges of concurrent jurisdiction.
We are accordingly satisfied that Eddah was by cohabitation, repute and the conduct of the family of the deceased towards her, a widow and beneficiary of the deceased.
In Gituanja v. Gituanja [1983] KLR 575, this Court held that the existence of a customary marriage is a matter of fact, which is proved by evidence.
An alienation made in transgression of the Act is ordained to be void for all purposes. Strong words indeed!
No court ought to enforce an illegal contract where the illegality is brought to its notice and if the person invoking the aid of the court is himself implicated in the illegality.
A respondent who has indicated that he is happy with the judgment cannot, out of the blue, start attacking aspects of it without any notice.
The estate shall bear the costs of the administrators and all the other parties shall bear their own costs.
This matter is remitted back to the High Court for re- distribution of the estate, by a judge other than Musyoka, J., to the beneficiaries of the deceased as identified in this judgment.
Issues in the judgment
#Paragraph 31 text is truncated mid-citation and runs into the next party's submissions without a break
Numbering of issues in paragraph 76 is garbled - item (ix) appears between (viii)(a) and (b)
Paragraph 73 is missing from the numbering sequence (jumps from 72 to 74)
Paragraph 163 is missing from the numbering sequence (jumps from 162 to 164)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Mbiyu Koinange (Deceased) - Margaret Njeri Mbiyu v David Njunu Mbiyu Koinange & 13 Others", Case Analysis (2017). Civil Appeal 47 of 2016 (consolidated with Civil Appeals 50 and 56 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/799/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.