UPDATE ON THE LAW OF SUCCESSION

Below are some interesting Succession Law cases from various courts around the
country. These decisions were reached within the past year and are all available to
subscribers of Law Africa Law Reports on www.lawafrica.com

1. Charles Wathuku v Ngure & Another (Waki,J)

R: 18/10/01 HCSC (Nyeri): 60/97 [1997] LLR 1950 (HCK)

SUCCESSION – Intestacy – Disputed paternity of petitioner – Deceased left no surviving

widow –Objectors not dependants of the deceased – Petitioner born out of wedlock and
subsequently brought up by mother and her husband – Whether there was sufficient proof
of paternity – Whether grant would be confirmed – Whether an order would be made for
refund of money withdrawn by the objectors

Held:
1. It was common ground that the deceased married twice but both wives, who
predeceased him, had no children. However, as no medical report of the deceased was
produced to confirm whether he was impotent, no such conclusion would be drawn.
2. There was sufficient evidence that the mother of the petitioner and the deceased had an
intimate relationship, even though they both eventually married other persons. The
evidence of the mother and the actions of the deceased in adopting the petitioner as his
son led to the conclusion that the petitioner was the son of the deceased.
3. The objectors, who were cousins but not dependants of the deceased, were not entitled
to inherit.
4. The petitioner’s grant would be confirmed and he would inherit the estate of the
deceased absolutely.
5. Since no application was made formally to court for refund of 5.8 million shillings
withdrawn by the objectors during the proceedings, no such order would be made.

2. Hadija Musa v Ibrahim Musa (Ringera,J)

R: 31/7/02 HC P&A (Bungoma): 22/2000 [2000] LLR 2014 (HCK)

SUCCESSION – Revocation of grant – Whether there were defects of substance in the

proceedings – Petitioner only surviving widow of deceased – Whether there was a
requirement to produce sureties in excess of one – Whether petitioner required to obtain
consent of other beneficiaries before filing petition
SUCCESSION – Continuing trust – Whether a continuing trust arises where some of the
beneficiaries are minors – Whether grant of letters of administration to widow alone was
made validly – s 58 Law of Succession Act

Held:

1. Since the widow had priority in petitioning for the grant by virtue of section 66 Law of
Succession Act, she did not require consent of any other person. Rule 7(7)(b) Probate and
Administration Rules considered.
2. There is no requirement in the Act or in the rules that one or more sureties must
accompany an application for grant of letters of Administration. Rule 29(3) Probate and
Administration Rules considered.
3. Where some of the beneficiaries of the estate are minors, a continuing trust arises. It
therefore follows that a grant cannot be made to one person. Section 58(1) Law of
Succession Act applied.
4. Failure to include some beneficiaries or some properties of the deceased need not be
fatal to the grant of letters of administration. Section 51(4) Law of Succession Act
considered.

3. Re Matheka’s Estate (Aluoch,J)

R: 27/6/02 HCSC (Nbi) : 470/90 [1990] LLR (HCK)

SUCCESSION – Revocation of grant – Disputed paternity of objector – Deceased swore

affidavit on change of objector’s name and referred to him as the son – Objector’s mother
had intimate relations with deceased at the time objector was born – Whether paternity
proved on the evidence – Whether grant would be revoked suo motu

Held:
1. On the evidence, the paternity of the objector by the deceased had been proved.
2. The grant would be revoked suo motu. A new grant would be issued to the petitioners
and the objector jointly, after which they may petition for confirmation of the same.

4. Mumo v Makau (Omolo, Tunoi, Bosire, JJ.A.)

R: 28/6/02 CA: 56/01 [2001]LLR 3650 (CAK)

SUCCESSION – Distribution of property – Property originally belonging to deceased

father – Appellant half-sister of respondent - Appellant registered as owner but
respondent in occupation of the property – Whether a married daughter could inherit
property under Kamba customary law – Whether appellant holding land in trust for the
family – Whether respondent had right to the property by virtue of patrilineal inheritance
– s 3(2) Judicature Act
LAND – Trust – Customary law trust – Appellant registered as first owner of the land –
Land originally belonged to appellant’s father – Whether appellant holds land in trust for
other members of the family – Whether customary law trust can be declared on first
registration – Registered Land Act

Held:
1. The land in question would have been inherited under Kamba customary law. It was
against the tenets of this customary law for the appellant, a married daughter, to inherit a
portion of the deceased father’s family land. Section 3(2) Judicature Act applied.
2. There is nothing in the Registered Land Act that precludes the declaration of a trust in
respect of registered land, even if it is a first registration. Wambugi v Kimani [1988–92]
2 KAR 58 approved.