Sawe & another v Sawe (Civil Appeal 39 of 2020) [2025] KECA 1677 (KLR)
The bottom line
#Kenya's Court of Appeal invalidated a father's Will that cut out his first family and ordered his land divided equally among all 14 beneficiaries.
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 respondent and her siblings were children/dependants of the deceased notwithstanding the appellants' claim of divorce or separation and contested paternity
- 2.Whether the mode of distribution in the Will was skewed to the disadvantage of the first house
- 3.Whether the learned Judge erred in revoking the Will and failing to appoint administrators, leaving the estate in limbo
- 4.Whether the learned Judge rightly distributed the property in accordance with section 40 of the Law of Succession Act
- 5.Whether the cross-appeal was properly on record and whether its distribution discriminated against the first house
- 6.Whether the order on costs was justified
Key legal issues
#Status of the respondent and her siblings as dependants of the deceased
The respondent and her siblings are children of the deceased and dependants under section 29(a) of the Act; the presumption of paternity was not dislodged
The appellants used 'divorced/separated' interchangeably without proving either. No evidence proved dissolution of marriage by court process or customary law, nor separation. Despite alleging the children were not sired by the deceased, the appellants never formally sought determination of paternity. Under section 118 of the Evidence Act and the presumption that a child born in a valid marriage is the husband's child, the appellants bore the burden of proving non-access at conception, which they failed to discharge.
Validity of a Will that fails to provide for dependants
A Will whose distribution is so skewed as to disinherit dependants may be invalidated and the estate distributed under the intestacy provisions
While section 5 confers unfettered testamentary freedom, it is expressly subject to Part III of the Act. Sections 26 and 28 require reasonable provision for dependants. Following Marete vs. Marete, where all free property was distributed by the impugned Will in a manner leaving first-house beneficiaries effectively disinherited, the only way to make reasonable provision for all dependants was to invalidate the Will and distribute under intestacy laws.
Appointment of administrators after invalidation of a Will
Where the court itself orders distribution of the estate, it is unnecessary to appoint administrators and the estate is not left in limbo
The appellants argued that revocation of the grant left the estate without administrators. The court held that since the Judge ordered the distribution of the estate, appointing administrators was not necessary, and the estate could not be said to be in limbo having been distributed. The ground challenging the trial court's approach on this issue therefore failed.
Distribution of a polygamous intestate estate under section 40 of the Act
The estate was divided equally among 14 units (the two houses), each beneficiary receiving 10.57 acres from one parcel and 2.64 acres from the other
Section 40(1) requires division among houses according to the number of children in each house, with the surviving wife counted as an additional unit, but the court retains discretion to consider factual circumstances for equitable distribution. Applying Article 27 of the Constitution and the principle of equality, the court aggregated 6 beneficiaries in the first house and 9 in the second into 14 units and divided each parcel into 14 equal portions.
Competence and timeliness of the cross-appeal
The cross-appeal was properly on record and the late challenge to it under rule 84 could not be entertained
The appellants argued the cross-appeal was filed out of time without leave. The court held the challenge was brought very late in the day contrary to rule 84 of the Court of Appeal Rules, 2010, which requires striking-out applications to be brought within thirty days of service of the notice of appeal or record of appeal.
Costs of the appeal and the cause
Each party to bear their own costs in the appeal and in the High Court, this being a family dispute
Although the appeal failed on the substantive issues, the court found the costs issue was the only part of the appeal that succeeded and ordered each party to bear their own costs both in the appeal and in the High Court given the family nature of the dispute.
Legal principles established
#- Testamentary freedom under section 5 of the Law of Succession Act is subject to Part III of the Act; a testator must make reasonable provision for dependants, and where all free property is distributed by a skewed Will that disinherits dependants, the court may invalidate the Will and distribute the estate under the intestacy provisions
- A child born during a valid marriage is presumed to be the husband's child under section 118 of the Evidence Act; the party disputing paternity bears the burden of proving non-access at the time of conception
- A party alleging divorce or separation must adduce cogent evidence of the dissolution of the marriage through a court process or applicable customary law; the two concepts cannot be used interchangeably or left to conjecture
- Section 40(1) of the Law of Succession Act does not oust the court's discretion to take into account factual circumstances to ensure equitable and fair distribution of a polygamous intestate estate
- Equality in distribution of a deceased's estate under the Act, supported by Article 27 of the Constitution, requires fair and non-discriminatory treatment of all beneficiaries regardless of gender or marital status, overriding conflicting customary law
- An application to strike out a notice of appeal or appeal under rule 84 of the Court of Appeal Rules must be brought within thirty days of service; a challenge brought after that period is out of time
Court orders
#- 1.The distribution of the deceased's estate ordered by the trial court (Omondi, J.) on 14th August 2019 in Eldoret High Court Succession Cause No. 369 of 2004 is set aside
- 2.The two parcels of land comprising the deceased's estate (LR. No. 7739/8 measuring 149 acres less 1 acre donated to AIC Church, and LR. No. Nandi Cheptil/138 measuring 37 acres) shall be divided among the 14 units comprising the two houses, each person getting 10.57 acres in LR. No. 7739/8 and 2.64 acres from Nandi Cheptil/138
- 3.The Land Registrar, Nandi County and the Land Registrar, Uasin Gishu County are directed to forthwith undertake the appropriate sub-divisions and issue each of the 14 beneficiaries titles for their respective parcels
- 4.Each party shall bear their own costs in the appeal and in the High Court, this being a family dispute
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Eldoret
- Succession Cause No. 369 of 2004
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Law of Succession Act and Rule 31(1) of the Court of Appeal Rules, 2022
Relief refused
#The appellants' appeal seeking validation of the Will and distribution strictly in accordance with it
The Will was impermissibly skewed and failed to make reasonable provision for dependants in the first house; the trial Judge properly interfered with testamentary freedom
The appellants' alternative prayer to remit the case to the High Court for a fresh hearing
The court found the trial Judge's invalidation of the Will correct and the estate distributable by the appellate court itself
The appellants' contention that administrators ought to have been appointed after revocation of the Will
Having ordered distribution of the estate, appointment of administrators was unnecessary and the estate was not left in limbo
The respondent's casual submission that three persons (Jonathan Sawe, Everline Jerono and Sally Jepchumba) be removed from the list of beneficiaries in the second house
The issue was not raised before the trial court and could not be entertained on appeal as it amounts to an ambush
The respondent's cross-appeal challenge to the trial court's distribution on equality grounds
Allowed - the appellate court substituted its own distribution in equal shares per unit under section 40 of the Act
Costs
Each party shall bear their own costs in the appeal and in the High Court, this being a family dispute.
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 the end, we find that this appeal fails save for the issue of costs as ordered below. We allow the respondent's cross- appeal and set aside the entire judgment and decree delivered by Omondi, J. on 14th August 2019 in Eldoret High Court Succession Cause No. 369 of 2004
The two parcels of land comprising of the deceased's estate, namely, LR. No. 7739/8 measuring 149 acres less 1 acre donated to AIC Church and L.R. No. Nandi Cheptil/138 measuring 37 acres shall be divided among the 14 units comprising of the two houses of the deceased, with each person getting 10.57 acres in LR. No. 7739/8 in Uasin Gishu and 2.64 acres from Nandi Cheptil/138.
Each party shall bear their own costs in the appeal and in the High Court this being a family dispute.
Since all of the deceased's free property was distributed in the impugned Will, it is our view that the only way that the Court could make reasonable provision for all the dependants of the deceased, including the respondent was to invalidate the last written Will of the deceased and distribute the properties that comprised the estate of the deceased under the intestacy laws of the Act.
Therefore, the party disputing paternity must provide strong evidence to prove non-access, rather than conjecture and speculation.
This constitutional principle is supported by Article 27 of the Constitution and it overrides any confiicting customary law that would deny or diminish a lawful beneficiaries' inheritance rights. All children are considered equal before the law for inheritance purposes.
The freedom exists but it must be exercised reasonably and in accordance with the law.
Issues in the judgment
#Internal inconsistency on the burial place of the deceased's first wife - the 1st appellant's affidavit states she lived and died at Ndalat Settlement Scheme, while later the appellants' argument (as summarised by the court) places her at her parents' home, and the respondent claimed she was buried on the deceased's land at Cheptil
Arithmetic inconsistency in the court's unit computation - the court states 'the 6 beneficiaries in the first house to the 9 beneficiaries in the second house which will aggregating to 14 units', but 6 plus 9 is 15, not 14
Inconsistent year given for the first wife's death - her death is placed in 1974 in the affidavit while the respondent's evidence elsewhere suggests 1978, and the court's findings do not resolve the discrepancy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sawe & another v Sawe (Civil Appeal 39 of 2020) [2025] KECA 1677 (KLR)", Case Analysis (2025). Court of Appeal at Nakuru, Civil Appeal (Eldoret High Court Succession Cause No. 369 of 2004 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1677/eng@2025-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.