Kaela Katebe Kanswe (Suing in her capacity as beneficiary and Joint Administrator of the Estate of the late Emmanuel Kanswe) v Evaristo Mfuta (Sued in his capacity as Administrator of the Estate of the late Emmanuel Kanswe) (Appeal No. 69/ 2023) [2025] ZMCA 20 (26 February 2025)

( \_ ( IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA Appeal No. 69 / 2023 (Civil Jurisdiction) BETWEEN: KAELA KATEBE KANSWE (Suing in her capacity as beneficiary and Joint A dministrator of the Estate of the late Emmanuel Kanswe) APPELLANT AND EVARISTO MFUTA ONDENT Coram: Kondolo SC, Majula & Muzenga, JJA On 20th February, 2025 and 26th February, 2025 For the Appellant Mr D. Tambulukani of DT Legal Practitioners For the Respondent Mr C. Kaela of GM Legal Practitioners JUDGMENT MAJULA JA delivered the Judgment of the Court Cases referred to: 1. The Attorney-General vs. Nigel Kalonde Mu tuna, Charles Kajimanga and Philip Musonda - SCZAppeal No. 88/2012. 2. Inda Zambia Bank Ltd vs. Mushaukwa 1'/Iuhanga - SCZ Judgment No. 26/2009. J2 3. Clara Chimfwembe {In her capacity as Executrix of the estate of the late Donald Chimfwembe) vs Hellen Mutale Chimfwembe {In her own and on behalf of Mwansa Chimfwembe, Kafwimbi Chimfwembe, Mumbi Chifwembwe & Donald Chimfwembe) CAZ Appeal No. 15/ 2021. 4. Mcpherson Mutupa Mbulo vs Priscilla Mutupa Appeal No . 105/ 2000 5. Flynn v Farr NO and Others (2008) Case no 13967/2007 Legislation referred to: 1. Intestate Succession Act, Chapter 59 of the Laws of Zambia Authoritative Text: 1. Bryan A Ganer's, Black's Law Dictionary. 9th Edition, (United States of America, Thomson Reuters, 2009) 1. 0 Introduction 1.1 This appeal originates from a judgment rendered by the Honourable Madam Justice M. C Mulanda on 28th September, 2022, in which she dismissed the Appellant's originating summons. The dispute revolves around Zambia's Intestate Succession Act, Chapter 59, which governs inheritance where a person dies without a Will. The key issue to be interrogated in this appeal is the interpretation of the term 'Adopted child' and whether a stepchild of a deceased parent can qualify as a child within the definition of Section 3 of the aforecited Act. J3 2 .0 Background 2 . 1 The facts giving rise to this appeal are that Constance N gosa Kanswe was married to Nelson Katete . Together, they had two children by the names of Kaela Katete (the appellant herein) and Nelson Lubuto Katete, who were born on 27th January, 2000 and 4 th December, 2006, respectively. The Appellant's biological father, Mr Nelson Katete , died in a road traffic accident in March, 2009. 2 .2 On 3 rd March, 2016, the Appellant's mother (Constance Ngosa) got married to Mr Emmanuel Kanswe at the Registrar's Office at the Ndola City Council. During their marriage, they did not have any children together. Mr Emmanuel Kanswe accepted the Appellant and h er brother as his children and proceeded to change their surnames to his name. He took over all the parental responsibilities, including their maintenance, clothing, food and school fees. 2 .3 Unfortunately, the Appellant's mother, Mrs Constance Ngosa Kanswe, died on 18th June, 2021 in Ndola, and the father, Mr Emmanuel Kans we (hereinafter called the deceased) , died intestate on 19th June, 2021, a day after their mother died at Ndola Teaching Hospital. 2 .4 At the time of his death, the deceased was survived by a mother and two (2 ) children, namely Kaela Kanswe and Nelson Lubuto Kanswe. The Appellant and the Respondent were a ppointed joint administrators for the estate of the deceased and obtained Letters of Administration from the J4 High Court. The deceased left behind both movable and immovable property in the estate, which included a house, household properties and 80% shares in a company called Matikan Enterprises Limited. 2 .5 The Respondent, who was the brother to the deceased and his family, decided to distribute the household goods between the families of the late Emmanuel Kanswe and the family of Constance Ngosa Kanswe and decided that the Appellant and her brother fell under the 10% for dependents and were therefore not entitled to the house on the ground that most of the properties and the house were acquired before Emmanuel Kanswe married the Appellant's mother. The Appellant and her brother were not legally adopted by the deceased. The Respondent decided to distribute the house to the family of the deceased. 2 .6 The Respondent prepared a list for distribution of Emmanuel Kanswe's estate aforesaid, but the Appellant and her family declined to accept the manner in which the estate was distributed and to sign the distribution list. On 20 th July, 2022, the Appellant took out an action in the High Court seeking a declaration that she and her brother are children of the deceased and not dependants. The Appellant also sought an Order for the Administrators to sell all assets forming part of the estate of the deceased and distribute the proceeds to the beneficiaries. 2 .7 On 13th September, 2022, the Respondent opposed the claim and averred that most of the household goods and the real JS property were acquired by Emmanuel Kanswe before he married the Appellant's mother and that despite the Appellant and her brother using the last name "Kanswe" and being considered as children of the deceased, th ey were never formally adopted by the deceased as his children. The Respondent contended that they could only be considered as ordinary dependants to the estate of the deceased. 3.0 Decision of the Court below 3 . 1 After considering the evidence before her, the learned trial Judge identified the issue for determination as being whether or not the Appellant and her brother were adopted children of the deceased's estate as children of the family. 3 .2 She went on to examine the definition of "adoption" as articulated in Black's Law Dictionary and came to the conclusion that there is a formal requirement to make an application before the Court for a child to be said to have been legally adopted in terms of the Children's Code Act No.12 of 2022. Ultimately, the court below held that the procedure prescribed in the law must be followed to create a valid adoption. She stated that changing a surname and living with the deceased for a long time is not enough. The learned Judge, however, found that the Appellant and her brother were mere dependants who could only benefit 10% of the deceased's estate under Section 5(1) of the Intestate Succession Act. J6 4 .0 Grounds of Appeal 4 .1 Being dissatisfied with the Judgment of the High Court, the Appellant launched an appeal anchored on three (3) grounds couched as follows: "1. The learned trial Judge in the court below erred in both law and fact when she held that 'having considered that the Applicant and her brother, Nelson Lubuto Kanswe, were not legally adopted by the deceased Emmanuel Kanswe, I find that they are not by law adopted children of the late Emmanuel Kanswe' in disregard of the evidence on record that the two were children of the family. 2. The learned trial Judge in the Court below erred in both law and fact when she held that the Appellant and her brother Nelson were dependants of the deceased and therefore entitled to a share of the deceased's estate, which a dependant is entitled to under section 5(1) of the Intestate Succession Act. 3. The learned trial Judge in the court below erred in both law and fact when she disregarded the Appellant's alternative claim that the Administrators sell all the assets forming part of the estate for the late Emmanuel Kanswe and share the proceeds of the sale among the rightful beneficiaries in accordance with the law.'' J7 5.0 Appellant's arguments 5 .1 In support of the appeal, the Appellant's Counsel filed into Court heads of Argument on 20 th March, 2023. The kernel of the submissions in respect of ground one was that the lower court should have employed an ordinary interpretation of the word 'adoption' as opposed to its legal meaning espoused in the Black Law's Dictionary. 5 .2 Counsel pointed out that according to the aforecited definition, there are two instances envisaged in the definition of adoption. In the first instance, it is where the parent-child relationship is created by judicial pronouncement. 5.3 The second instance arises by operation of the law where there is no requirement for a judicial or court order to create the parent-child relationship. According to counsel, the operation of the law envisaged in this situation is where two people get married but already have a child or children, and these become stepchildren by virtue of the marriage, and they are not classified as guardians or dependants. 5.4 He contended that this entails that the relationship in the present case between the deceased and the two children left behind cannot be classified as that of guardian and dependant. That in any case, the Appellant and her brother were legitimised by virtue of the marriage between their mother and Mr. Emmanuel Kanswe. J8 5 .5 With regard to interpreting statutes and documents using the literal rule, we were referred to the case of The Attorney General vs. Nigel Kalonde Mutuna, Charles Kajimanga and Philip Musonda 1 and Indo Zambia Bank Ltd vs. Mushaukwa Muhanga. 2 5.6 Counsel went on to submit that if the Legislature intended that the word adoption provided in Section 3 of the Intestate Succession Act should be interpreted in the legal sense, they would have equally provided so. 5.7 Based on the foregoing, Counsel urged us to uphold ground 1 to the effect that the Appellant and her brother were adopted children of the late Emmanu el Kanswe, who must be paid 50% of his estate. 5.8 The main point submitted in respect of ground 2 was th at the issue of the house left by the deceased remains unresolved. He observed that the Respondent decided to assign the said house to the relatives of th e deceased wh en the law does not provide that they should benefit from an estate. Coun sel asserted that the only beneficiaries iden tified in the Intestate Succession Act are th e spouse, children, parent and dependants. 5. 9 That the Appellant and her brother, being the surv1v1ng children, are legally entitled to the house . Counsel further averred that the two are also entitled to household goods, J9 motor vehicle and shares in Matikan Enterprises Limited, where the deceased held 80% of the shares. 5 .10 In relation to ground three, Counsel avowed that in the originating summons filed in the lower court, there was an alternative claim for an Order to compel the administrators to sell all assets of the deceased and distribute the proceeds to the beneficiaries. This was not determined by the lower court. 5 .11 Learned Counsel observed that there is an acrimonious relationship between the Appellant and the Respondent, which might result in the former being deprived of her entitlements. 5 .12 We were thus urged to Order the administrators to sell all assets and distribute the proceeds to the beneficiaries. 6 .0 Hearing of the Appeal 6 .1 The matter came up for hearing on 20th February, 2025. Mr Tambulukani requested leave to file heads of argument in reply, but the same was declined on the basis that it was being sought late in the day. 6 .2 In support of the appeal, reliance was placed on the heads of argument that were filed together with the record of appeal. For emphasis, Mr Tambulukani submitted orally that in the Intestate Succession Act, there is no prefix to the definition of a child that they must be 'legally adopted' as held by the JlO Court below. He argued that this Court should construe the word child in the context of customary law where there is no need to have a formal adoption. He reiterated that the Appellant and her young brother must be classified as children of the deceased and not dependants. 6.3 With respect to ground 3, Mr Tambulukani argued that the lower Court did not consider the alternative claim by the Appellant to have all the assets sold and distributed to the beneficiaries, given the hostile relationship that is obtaining b etween the Appellant and the deceased's relatives. He accordingly urged us to ponder on the alternative claim and make appropriate Orders. 6 .4 On behalf of the Respondent, Mr Kaela placed full reliance on the heads of argument in response that had been filed on 17th May, 2023. "l .0 Decision of the Court 7 . 1 We have meticulously examined the record of appeal as well as the submissions of Counsel for the Appellant. We propose to deal with grounds one and two togeth er as they are intertwined and pose the question of whether the Appellant and her brother were children or dependants of the deceased Mr Emmanuel Kanswe. 7 .2 The main grievance of the Appellant in r espect of grounds one and two is that the lower court erred when it found that the Appellant and her brother were not children of the deceased. Jl 1 7 .3 What we have been able to glean from the evidence is that the Appellant and h er brother, Nelson Lubuto Kanswe, were born out of an initial marriage between their mother, Constance N gosa Kanswe and Mr. Nelson Katete. 7.4 The Appellant was born on 27th January, 2000, while her brother was born on 4 th December, 2006 . Mr. Nelson Katete, unfortunately, died in March 2009, and the Appellant's mother remarried Mr. Emmanuel Kanswe on 3 rd March, 2016. The issue is wh eth er the Appellant and her brother can be said to be children of Mr. Emmanuel Kanswe. 7.5 The word child is defined in Section 3 of the Intestate Succession Act as fallows: "A child born in, or out of marriage, an adopted child, a child who is conceived but not yet born." 7 .6 This definition explicitly includes biological and adopted children but does not mention stepchildren. In the case of Clara Chimfwembe (in her capacity as Executrix of the estate of the late Donald Chimfwembe) vs Hellen Mutale Chimfwembe (in her own and on behalf of Mwansa Chimfwembe, Kafwimbi Chimfwembe, Mumbi Chifwembwe & Donald Chimfwembe)3 we set out the elements of the definition of a child when we held that: "Child is one who is: (i) (ii) born during the subsistence of a marriage. born outside of a marriage or wedlock; Jl2 (iii) conceived by the parties to that marriage but not yet born; or (iv) adopted by the parties to the marriage." 7 . 7 In another insightful case of Mcpherson Mutu.pa Mbulo vs Priscilla Mutu.pa4, which was a dispute concerning inheritance rights , the Supreme Court addressed this issue when they upheld the lower Court's decision that: 1. The child was not the biological child of the deceased nor of his wife. 2. At the time of his demise the child remained with him. The Supreme Court said, "he also found (the High Court Judge) that the child known as Veronica MUTUPA was living with the deceased at the time of his demise and that she was a dependant of the deceased." 7.8 It is, therefore, clear that the Appellant and her brother do not fall into any of the categories for the definition of a child as provided for in the Act. 7.9 The Appellant's Counsel has strenuously argued that this court should interpret the word Adopt definition in a manner that excludes the court process. He has placed reliance on the fact that the Appellant and her brother were being kept by the deceased, and he accepted them as such. Our response in light of the foregoing is that this argument is misconceived and does not hold water. The Appellant's reliance on moral reasoning and unrelated laws does not establish a legal right to inheritance. The deceased's marriage J13 to the Appellant's mother does not automatically confer adoption. 7 . 10 From our perspective, for one to qualify as a child in Section 3 of the Intestate Succession Act, one of th e criteria is th at a child must b e adopted. This entails a judicial pronouncement after formal application. Black's Law Dictionary is instructive in terms of the definition wh en it states as follows: "The creation of a parent-child relationship by judicial order between two parties who usually are unrelated; the relation of parent and child created by law between person who are not inf act parent and child." 7 . 11 In the Clara Chimfwembe case, we held th a t a person who does n ot meet the threshold set out in section 3 of the Intestate Succession Act cannot be classified as a child. The court process is inevitable for a child to be said to have been adopted. In other jurisdictions, Courts have similarly held that stepchildren do not have automatic inheritance rights unless legally adopted. For instance, in the South African case of Flynn v Farr NO and Others5 , the Court examined wh ether a de facto (informally adopted) child could be recognised as an heir under th e intestate Succession Act. The Court concluded that only de lege (legally adopted) children are entitled to inherit, underscoring th e n ecessity of formal adoption procedures to establish inheritance rights. We thus J14 hold that the Appellant and her brother are not children of the deceased. 7 .12 We now turn to consider wheth er the Appellant and her brother can be said to have been dependants of the deceased in terms of Section 3 of the Intestate Succession Act. The word dependant is defined as fallows: "Dependant in relation to a deceased person means a person who was maintained by the deceased person immediately before his death and who was:- (a)A person living with that deceased person; or (b)A minor whose education was provided for by that deceased person; and who is incapable, either wholly or in part, of maintaining himself. " 7 . 13 In casu, there is no dispute that the Appellant and her brother were maintained by the deceased and were living with him and the mother. They, therefore, fall in the category of dependants. We maintain the stance we took in Clara Chimfwe mbe (supra) that to inherit as a dependant, a person must show financial reliance on the deceased. The evidence on record has proven the dependency; therefore, by reason of the Intestate Succe ssion Act, they are beneficiaries as dependants. 7. 14 We thus find that the lower court was on firm ground in holding that the Appellant and her brother were dependants Jl5 of the deceased. Grounds one and two are, therefore , devoid of merit and are consequently dismissed. 7 .15 In the third ground, the Appellant has accused the trial Judge of having disregarded her alternative claim that the Administrators ought to be ordered to sell all the assets joining part of the estate of the late Emmanuel Kanswe and share the proceeds of the sale among the rightful beneficiaries in accordance with the law. 7 .16 We have reflected on this argument, and the view we take is that as we have already determined that in accordance with the law, specifically the Intestate Succession Act, the Appellant and her brother are only entitled to the estate as dependants. 7 . 1 7 We have already determined in grounds 1 and 2 that they do not qualify to be classified as children of the late Mr. Emmanuel Kanswe. 7 . 18 We have taken time to consider the provisions of Sections 5 and 6 of the Intestate Succession Act, which guides on the distribution of property 1n the absence of certain beneficiaries. For ease of reference, it provides as follows: "5. (1) Subject to sections eight, nine, ten and eleven the estate of an intestate shall be distributed as follows: (a} twenty per cent of the estate shall devolve upon the surviving spouse; except that where more than one widow survives the intestate, twenty p er cent of the estate shall be distributed among them proportional to J16 the duration of their respective marriages the deceased, and other factors such as the widow's contribution to the deceased's property may be taken into account when justice so requires; to (b) fifty per cent of the estate shall devolve upon the children in such proportions as are commensurate with a child's age or educational needs or both; (c) parents of the deceased; (d) dependants, in equal shares." twenty per cent of the estate shall devolve upon the ten per cent of the estate shall devolve upon the ''6. Where an intestate leaves- no spouse, the portion of the estate which the (a) spouse would have inherited shall be distributed to the children in such proportions as are commensurate with a child's age or educational needs or both; (b) no spouse or children; the aggregate portion of the estate which the spouse and children would have inherited shall be distributed equally to the parents of the deceased; (c) distributed to dependants in equal shares; no spouse, children, parents, or dependants, the (d) estate shall be distributed to near relatives in equal shares; no spouse, children, parents, dependants or near (e) relatives, the estate shall be bona vacantia and shall devolve upon the State." no spouse, children or parents, the estate shall be 7 .19 Of critical relevance is section S(d) which entitles the Appellant and h er brother to 10%. What we h ave gleaned from the evidence on r ecord is that the deceased was survived by a mother. At the hearing, both Counsel for the Appellant and Respondent confirmed that the deceased was s urvived J17 by the mother. The evidence on record further reveals that aside from the Appellant and her brother, there were 2 other dependents making the total of dependants 4. Therefore, the estate should be distributed amongst the 4 dependants and the surviving mother. For the avoidance of doubt, the dependants shall be entitled to 10% of the estate. The surviving mother is en titled to the remainder of the estate as it devolves to her on account of Section 6(b) of the Act. This is because there is no spouse or children. The beneficiaries therefore are the mother and dependants. 7 .20 In the interest of justice and finality of issues, we find it prudent to order that the property be valued and sold at market valu e and b e distributed amongst the surviving parent and dependants in accordance with the provisions of the Intestate Succession Act highlighted above. In th e net result, ground 3 succeeds to the extent that the assets should b e sold and proceeds shared in accordance with the law aforecited. 8 .0 Conclusion 8 . 1 The sum of our decision is th at grounds 1 and 2 are devoid of merit and are dismissed. To eliminate any uncertainty, our decision is as follows: 1. Zambian case law consistently upholds that stepchildren are not automatic heirs, they must be legally adopted to inherit from their step-parents under the Intestate Succession Act. J18 2. The Appellant and her brother fall under the category of dependants under the Intestate Succession Act as they were not legally adopted and are entitled to a share of 10% of the deceased's estate. 3 . The property is to be sold and shared in line with the provisions of the Act. The rightful beneficiaries of the deceased's estate are, the surviving parent and 4 of the dependants. 10 % to dependants and the remainder shall devolve to the surviving parent. 8.2 Each party is to bear their respective costs. 2: -= M. M. Kondolo, SC COURT OF APPEAL JUDGE I ··· ·· ·· ·· · ~ i:M· ... ~i~ .. COURT OF APPEAL JUDGE ············· K. zenga COURT OF APPEAL JUDGE