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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 Lawafrica 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sufficient proof of paternity – Whether grant would be confirmed – Whether an order would be made for refund of money withdrawn by the objectors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 Since no application was made formally to court for refund of 5.8 million shillings withdrawn by the objectors during the proceedings, no such order would be made.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 an application for grant of letters of Administration must be accompanied by one or more sureties. 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 which 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.

Subscribers to LawAfrica Law Reports will be able to view the full text of cases cited as LLR.