📋 CASE INFORMATION

Case Citation: 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)

Court: Court of Appeal of Zambia (held at Ndola) – a superior court (which reviews decisions from the High Court)

Judges: Kondolo SC, Majula JA, and Muzenga JJA

Date of Judgment: 26th February, 2025

Legislation: Intestate Succession Act, Chapter 59 of the Laws of Zambia; Children's Code Act No. 12 of 2022

🔍 WHY THIS CASE MATTERS

This case deals with one of the most important questions in Zambian family law: What happens to the property of someone who dies without a Will, and who legally inherits? More specifically, it answers a painful question many families face: Do stepchildren have a right to inherit from their stepparent?

In Zambia, many families experience stepfamily situations. A parent may remarry after the death or separation from the first spouse. The new spouse may care for and support the children from the earlier relationship for many years. The question becomes: when that stepparent dies without a Will, are those children entitled to inherit as "children" or do they only get a smaller share as "dependants"?

This case is important because the Court of Appeal (the highest court that hears appeals) has clarified once and for all that simply living with a stepparent, having your surname changed, and being cared for is not enough to give you inheritance rights as a child. The law requires a formal legal adoption process through the courts. Without that court order, stepchildren fall into a different category called "dependants," which means they get a smaller percentage of the estate (10% instead of 50%).

This ruling affects many Zambian families and shows how the law distinguishes between moral relationships (love, care, living together) and legal relationships (formal court-approved adoption). Paralegals need to understand this so they can explain inheritance law to clients who may be stepchildren, or who are distributing estates and need to know who qualifies as a "child."

📖 OVERVIEW

🗂️ FACTS: WHAT REALLY HAPPENED

Family Background:

• Kaela Katebe was born on 27 January 2000 to Constance Ngosa and Nelson Katete (her biological father)

• Her brother, Nelson Lubuto, was born on 4 December 2006

• Their biological father, Nelson Katete, died in a road traffic accident in March 2009 when Kaela was 9 years old

• Their mother, Constance Ngosa, later remarried

The Remarriage (2016):

• On 3 March 2016, Constance married Emmanuel Kanswe at the Ndola City Council Registrar's Office

• During their marriage, Constance and Emmanuel did not have any children together

• Emmanuel fully accepted Kaela and Nelson as his own children

• He changed their surnames from "Katete" to "Kanswe"

• He took over all parental responsibilities: paying for their food, clothing, school fees, and maintenance

• The children lived with Emmanuel and their mother as a family

Death of the Parents:

• Constance Ngosa (the mother) died on 18 June 2021

• Emmanuel Kanswe died intestate (without a Will) on 19 June 2021 – one day after the mother's death

• At the time of his death, Emmanuel left behind:

  • His own mother (Kaela and her brother's grandmother)

  • Two children from the earlier marriage: Kaela Kanswe and Nelson Lubuto Kanswe

  • Estate assets: a house, household goods, and 80% shares in Matikan Enterprises Limited

The Dispute Over the Estate:

• Emmanuel's brother, Evaristo Mfuta (the Respondent), was appointed as joint administrator

• Evaristo decided to distribute the household goods between Emmanuel's family and Constance's family

• He classified Kaela and her brother as "dependants" (not children) and gave them only 10% of the estate

• He decided they were not entitled to the house because:

  • Most property was acquired before Emmanuel married their mother

  • They were never formally adopted by Emmanuel

The Court Case:

• On 20 July 2022, Kaela sued in the High Court for a declaration that she and her brother were children (not dependants) and should receive 50% of the estate

• She also asked the court to order the administrators to sell all assets and distribute proceeds fairly

• In September 2022, the High Court dismissed her case, holding that stepchildren must be formally adopted to be called "children"

• Kaela appealed to the Court of Appeal in 2023

⚖️ARGUMENTS FROM EACH SIDE

Kaela's Arguments (The Appellant):

Kaela's lawyer argued that the word "adoption" in the Intestate Succession Act should be interpreted in its ordinary, everyday meaning, not its strict legal meaning. He made these key points:

1. The definition of "adoption" in the Black's Law Dictionary actually includes two types: (a) adoption by court order, and (b) adoption by operation of law (automatically, without a court order)
    

2. When two people marry and one already has children, those children become "stepchildren" automatically by the marriage itself – no court order is needed
    

3. The Legislature (Parliament) did not say the word "adoption" must be "legal adoption" in the Intestate Succession Act, so we should not add that requirement
    

4. Kaela and her brother were "legitimised" (made lawful children) simply by their mother's marriage to Emmanuel
    

5. The relationship between Emmanuel and the children was not that of guardian and dependant – it was a parent-child relationship
    

6. The hostile relationship between Kaela and Evaristo means the estate should be sold and distributed fairly among beneficiaries, rather than giving relatives the house
   
    

The Respondent's Arguments (Evaristo Mfuta):

Evaristo argued that:

1. The children were never formally adopted under the Children's Code Act No. 12 of 2022
    

2. Simply changing surnames and living with Emmanuel for a long time is not enough to create adoption
    

3. Most property was acquired before Emmanuel married their mother, so it should go to his own family
    

4. The children should only be classified as dependants, not children, because there was no formal adoption process
   
    

🏛️ HOW THE COURT DECIDED (REASONING)

The Court's Analysis:

The judges carefully examined the definition of "child" in Section 3 of the Intestate Succession Act. The Act says:

"A child born in, or out of marriage, an adopted child, a child who is conceived but not yet born."

The judges noted that this definition mentions:

• Children born during marriage

• Children born outside marriage

• Adopted children

• Children conceived but not yet born

But it does NOT mention stepchildren.

The Court's Key Findings:

1. Formal Adoption is Required: The Court of Appeal held that adoption is not an automatic process. According to Black's Law Dictionary, adoption means:
   
   
   "The creation of a parent-child relationship by judicial order between two parties who usually are unrelated."
   
   
   This clearly requires a judicial order (a court decision). Simply loving and caring for a child is not enough.
    

2. The Children Do Not Meet the Definition: Kaela and her brother do not fall into any of the four categories of "children" in the Act:
    

   • They were not born during Emmanuel's marriage to their mother (they were born to the first marriage)

   • They were not born outside any marriage (they were born in the first marriage)

   • They were not conceived during this marriage

   • They were NOT formally adopted (no court order)

3. Previous Court Decisions Support This: The Court cited the Supreme Court case Mcpherson Mutupa Mbulo v Priscilla Mutupa, where a child living with a deceased person was found to be a "dependant," not a "child," because there was no formal adoption.
    

4. Moral Arguments Do Not Create Legal Rights: The Court rejected the argument that moral relationships (love, care, living together) create legal inheritance rights. The Court said:
   
   
   "The Appellant's reliance on moral reasoning and unrelated laws does not establish a legal right to inheritance."
   
    

5. International Precedent: The Court referred to a South African case, Flynn v Farr NO and Others, where the court held that only de lege (legally adopted) children inherit, not de facto (informally cared-for) children.
    

6. The Marriage Does Not Confer Adoption: The Court was clear: "The deceased's marriage to the Appellant's mother does not automatically confer adoption."
   
    

The Dependant Status:

However, the Court found that Kaela and her brother DO qualify as "dependants" under the Act because:

• They were maintained by Emmanuel immediately before his death

• They were living with him

• They were his responsibility for food, clothing, and education

• They were unable to maintain themselves (being young)

The definition of "dependant" in the Act is:

"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."

This perfectly describes Kaela and her brother.

📜THE COURT'S DECISION (FINAL OUTCOME)

Grounds 1 & 2 - DISMISSED:

The Court of Appeal dismissed the first two grounds of appeal. This means:

✗ Kaela and her brother are NOT children of Emmanuel Kanswe under the law

✗ They did NOT qualify as formal heirs to a 50% share of the estate

✗ Simply living with the deceased, being supported by him, and having your surname changed is NOT enough to create inheritance rights as a child

✓ They ARE classified as dependants

Ground 3 - PARTIALLY SUCCEEDS:

The Court agreed that the assets should be sold and distributed fairly. Here's how the estate must be distributed:

Estate Distribution:

According to the Intestate Succession Act, Section 5(1) and Section 6(b):

• The Deceased's Mother: Gets the remainder of the estate (after dependants' share) because there is no surviving spouse or biological children

• The Four Dependants (including Kaela and her brother, plus 2 other dependants): Share 10% of the estate equally

In this case:

• 10% of the estate goes to the 4 dependants (shared equally, so each gets 2.5%)

• The remaining 90% goes to Emmanuel's surviving mother

What Must Happen Now:

1. The administrators must value all property at market value

2. All assets (including the house, household goods, and company shares) must be sold

3. The proceeds must be distributed according to the law

This decision means Kaela and her brother will get money from the sale of the estate, but they will NOT get to live in the house or inherit it as children would.

Costs:

Each party must bear their own legal costs (no order for one side to pay the other's costs).

🎯KEY LEGAL PRINCIPLES TO REMEMBER

These are the important legal rules established or confirmed by this case:

✓ Formal Adoption is Mandatory: To qualify as a "child" for inheritance purposes in Zambia, a stepchild MUST be formally adopted through a court order under the Children's Code Act. There is no exception.

✓ Informal or "De Facto" Adoption Does Not Count: Living with a stepparent, being supported by them, having your surname changed, and being treated as a family member is NOT the same as legal adoption.

✓ Stepchildren Are Not Automatic Heirs: A stepchild who was not formally adopted cannot inherit as a child would (50% of the estate). They are limited to the dependant status.

✓ Dependants Are a Separate Category: The law recognizes "dependants" as people maintained by the deceased but not legally related. They get 10% of the estate, not 50%.

✓ The Marriage of Parent and Stepparent Does Not Confer Adoption: Even if your mother or father marries someone who becomes your stepparent, and even if they live with you and support you, you are not automatically their legal child for inheritance purposes.

✓ Section 3 of the Intestate Succession Act is Strict: The four categories of "children" are:

1. Children born in marriage

2. Children born outside marriage

3. Children conceived (but not yet born) during marriage

4. Formally adopted children (by court order only)

If you don't fit one of these categories, you are not a "child" for inheritance law purposes.

✓ Dependants Must Show Financial Reliance: To qualify as a dependant, you must prove that the deceased person was maintaining you and you were unable to support yourself.

✓ The Court Will Order Assets to Be Sold: If there is conflict over property distribution and if it serves justice, the Court may order administrators to sell all assets and distribute proceeds fairly among beneficiaries.

💼PRACTICAL IMPACT FOR PARALEGALS

📚 MINI-EXAMPLES (REAL-LIFE ZAMBIAN SCENARIOS)

⏳QUICK TIMELINE OF THE CASE

✅ETHICS REMINDER FOR ZAMBIAN PARALEGALS

🔗CONNECTING TO ZAMBIA'S DUAL LEGAL SYSTEM

Important Note for Paralegals:

Zambia has a dual legal system:

1. Statutory Law (based on English common law) – This is what the Intestate Succession Act is. It applies when someone dies without a Will.
    

2. Customary Law (traditional laws of Zambia's 72 ethnic groups) – In some areas, especially in chiefdoms, traditional courts and customary law may apply to family and inheritance matters.
   
    

What This Case Does: This case interprets statutory law (the Intestate Succession Act) and makes clear that formal court adoption is required. However, in some customary law contexts, adoption may work differently. A child might be recognized as a legitimate member of the family under traditional practices without a formal court order.

As a Paralegal, You Should:

• Understand that this case applies to statutory succession (when people die without Wills in the formal legal system)

• Be aware that customary law may have different rules

• Refer clients with customary law issues to practitioners who understand both systems

• Not assume that customary adoption automatically counts under statutory law

SUMMARY: WHAT YOU NEED TO TELL CLIENTS

If someone asks: "Am I entitled to inherit from my stepparent?"

You should explain:

"Under the Intestate Succession Act, being a stepchild – even if you were loved, cared for, and supported by your stepparent – does not give you inheritance rights as a 'child' would have.

To inherit as a child (50% of the estate), you must have been formally adopted through a court order under the Children's Code Act. This requires an application to the court.

If you were not formally adopted, you can inherit only as a dependant (10% of the estate) if you can prove:

1. You were maintained by the deceased person before their death

2. You were living with them, AND

3. You could not maintain yourself

A recent Court of Appeal case (Kaela Katebe Kanswe v Evaristo Mfuta, 2025) confirms this rule. Even if your stepparent changed your surname and treated you as their own child, without a formal court adoption, you are not legally their 'child' for inheritance purposes.

If you want legal advice about your specific situation, I can refer you to a qualified legal practitioner who can review your case."

📞 FINAL ETHICS REMINDER

For all Zambian paralegals working with clients on inheritance matters:

This case teaches us an important lesson about the limits of our role. We can educate and explain the law. We can help clients understand their rights. We can signpost them to the right help. But we cannot represent them in court and we cannot make final decisions about who inherits.

When families are grieving and in conflict over property, they need emotional support AND legal guidance. You are uniquely positioned to provide support and explain the law in a way that clients understand. But complex inheritance disputes often need the specialized knowledge of a qualified legal practitioner.

Know your scope. Work within it. Refer when needed. Serve your clients with integrity.

Document prepared for paralegal education and reference
Last updated: November 2025
Based on: Kaela Katebe Kanswe v Evaristo Mfuta, CAZ Appeal No. 69/2023