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Court of AppealDismissedCivil Appeal No 130 of 2017

Daniel Kirehu Murai v Sammy Maina Kirehu & 11 others [2019] KECA 699 (KLR)

Court of Appeal
7 June 2019
1,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that claiming a share of a deceased person's estate doesn't give you the right to control it, especially if you hide other family members when applying.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Musinga, Sichale and Otieno-Odek, JJ.A) dismissed this first appeal against the decision of Musyoka, J. in Succession Cause No 1865 of 2011. The appellant, a grandson of the deceased John Kirehu Kariithi, had obtained letters of administration in February 2012, and the deceased's widow and children successfully applied for revocation. The High Court revoked the grant, appointed the deceased's surviving children as administrators, directed them to seek confirmation of the grant, and transferred the cause to Naivasha. The appellant argued he had complied with Section 76 of the Law of Succession Act, had made full disclosure, that his submissions were not considered, and that he ought to have been made a co-administrator; he also claimed 1½ acres as his late mother's promised share. The Court reiterated its duty on a first appeal to re-evaluate the evidence and reach its own conclusion, guided by the principles in Ephantus Mwangi v Duncan Mwangi Wambugu on interfering with findings of fact. It held that a beneficial claim to part of the estate does not confer exclusive entitlement to administer the estate to the exclusion of the deceased's children, and that the appellant's failure to disclose the existence of numerous survivors constituted material non-disclosure justifying revocation under Section 76, which confers wide revocation powers on the court. The Court further held that revocation and appointment of administrators did not amount to distribution of the estate, which would occur later, when the appellant's claim to the 1½ acres would be considered. The appeal was dismissed in its entirety and, as the parties are family members, each party was directed to bear his/her own costs.

Questions the Court framed

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

  1. 1.Whether the High Court erred in revoking the grant of letters of administration issued to the appellant on 13th February 2012
  2. 2.Whether the appellant made full disclosure of material facts when obtaining the grant
  3. 3.Whether the learned Judge erred in appointing the deceased's surviving children as administrators to the exclusion of the appellant
  4. 4.Whether the learned Judge failed to consider the appellant's submissions

Key legal issues

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01

Whether a person with a partial beneficial claim may obtain letters of administration to the exclusion of the deceased's children

Holding

No; a claim to a share of the estate does not confer exclusive entitlement to administer it

Reasoning

The appellant claimed 1½ acres as his deceased mother's share. The Court held that such a beneficial claim did not give him exclusive rights to apply for letters of administration to the exclusion of the deceased's children, who are the appropriate administrators. The appellant had also failed to disclose the existence of a large number of survivors, amounting to material non-disclosure justifying revocation under Section 76.

p. 2
02

Whether the revocation of the grant and appointment of new administrators amounted to premature distribution of the estate

Holding

No; revocation and appointment of administrators is distinct from distribution, which occurs at confirmation

Reasoning

The appellant contended the Judge erred by effectively distributing the estate. The Court held the decision did not amount to distribution; distribution happens at a later stage when the appellant's claim to the 1½ acres will be considered. The appeal against revocation and the appointment of the surviving children as administrators therefore failed in its entirety.

p. 3

Legal principles established

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  • On a first appeal, the Court has a duty to re-evaluate the evidence and arrive at its own independent conclusion, while bearing in mind that it did not see or hear the witnesses
  • An appellate court will hesitate before reversing findings of fact by a trial judge unless material circumstances were ignored, a demeanour finding is inconsistent with the evidence, or the finding is based on no evidence or a wrong principle
  • Section 76 of the Law of Succession Act gives the court wide powers to revoke or annul a grant obtained fraudulently or by concealment of material particulars

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear his/her own costs

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
Succession Cause No 1865 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment describes the appeal as 'a first appeal'); from a succession cause under the Law of Succession Act

Relief refused

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Setting aside the revocation of the grant issued to the appellant

The appellant's claim to a share of the land did not give him exclusive rights to administer the estate; the grant had been obtained through material non-disclosure

p. 2

Appointment of the appellant as co-administrator

The Court found no merit in the appeal and affirmed the appointment of the deceased's surviving children as administrators

p. 3

Immediate distribution of the 1½ acres claimed by the appellant

The revocation decision did not amount to distribution of the estate; the appellant's claim will be considered at the distribution stage

p. 3

Costs

Given that the parties are family members, each party will bear his/her own costs

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.

It is in view of the above that we find no merit in this appeal. It is hereby dismissed. As regards costs, given that the parties herein are family members, we direct that each will bear his/her own costs.
p. 3Final orders - dismissal of appeal and costs
This is a first appeal and that being so, we have a duty to re-evaluate the evidence relied on by the trial court and arrive at our own independent conclusion.
p. 2Duty of a first appellate court
the appellant's claim to ownership of 1½ acres of the land being a share of his mother's right did not give him the exclusive rights to apply for letters of administration of the deceased's estate, to the exclusion of the deceased's children
p. 2Entitlement to letters of administration
the learned Judge came to the correct conclusion in revoking the grant issued to the appellant as there had been material non-disclosure
p. 2Revocation of grant for material non-disclosure

Issues in the judgment

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minor

The coram lists 'ODEK, JJ.A' while the signature block reads 'OTIENO - ODEK'; the same judge is rendered inconsistently within 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, "Daniel Kirehu Murai v Sammy Maina Kirehu & 11 others [2019] KECA 699 (KLR)", Case Analysis (2019). Civil Appeal No 130 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/699/eng@2019-06-07

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