Legal Clinic: Is inheritance based on the number of wives or children?

Hi Eric,

My father had two wives, both of whom are now dead. He had two farms measuring 140 and 150 acres, respectively. He lived on one of the farms with my mother, where they are all buried. My stepmother lived in a plot in town which was bought by my father but registered in my stepbrother's name. My mother bore 10 children, and she is survived by nine. My stepmother, on the other hand bore six children, and she is survived by three. We are all adults over 50 years old. Legally, how do we subdivide our father's property, in this case, land? Do we subdivide according to the number of children or according to the number of wives? I read somewhere it's according to the number of children.

Ever since our father died, none of my sibling has been allocated any or part of the farms. Kindly advise its urgent, we are about to get the letters of administrations.

Kevin

Dear Kevin,

Land seems to be the most sought-after commodity in Kenya, making its access, use and control the most contentious and grievous issue in many polygamous nature families. In no way are we implying that it is less controversial in monogamous ones. The value we place on land as a society often creates a reasonable and unreasonable expectation among people, especially those who may entirely rely on its production for survival. Amidst this concern, the Kenyan law is elaborate besides anticipates and applies in the many scenarios likely to emerge when succession calls. Legal understanding on matters land is enshrined in chapter five of the Constitution.

The law has provided, though not to everyone's satisfaction systems through which families balance interests and rights when apportioning land. Your situation is addressed by the process given at Section 29 of the Law of Succession Act, whose significance to ensure that genuine and rightful beneficiary is not disinherited. The Act proscribes the rules that determine what ought to happen to a person's estate after his or her death, as follows: i) identify the legal/rightful claimants of the deceased's property; ii) The procedure to be followed by the claimants to enable them to acquire the property of the deceased; and, iii) To provide tools of dispute resolution in the event of dispute amongst rightful claimants. Persons deemed as rightful are categorised as: wife or wives, or former wife or wives and the children of the deceased whether or not they were maintained by the deceased before his death; deceased's parents, step-parents, grandparents, grandchildren, stepchildren, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased before his/her death; and where the dead was a woman, her husband if at all he was being maintained by her immediately before the date of her death. This last part of the husband being maintained is likely to change if the Law of Succession Bill of 2019 gets passed by Parliament.

While the law looks generous on how it views the likely distribution of an estate intestate (an estate where the deceased has no will), priority is given to the immediate family of the deceased, in this case the wife or husband and the children. The rest enter the distribution equation if at all the preferred dependents are non-existence. Further, let it be noted that the absence of all the dependants mentioned is missing, the property automatically devolves to the state as unclaimed assets since no original owner or rightful heirs communicates interest in them over some time. Letters of administration are in the offing. This means that you already have filed a succession cause and administrator(s) has or have been identified. It should be known that such letters of administration will only be confirmed once an application of grant is made, supported with a subdivision schedule of the family land towards execution of the intended subdivision among the beneficiaries. Such application is made in a court of law after the elapse of six months since the letters of administration were acquired.

Imprudence in the process

However, the court may decline the grant if it finds imprudence in the process by which the family has approached the succession. Therefore, a clear estate management and distribution plan, less resentment, doubts and which includes the parcel of land already in your stepbrother's name is a pointer to favourable court's decision. The number of children or wives is largely immaterial for as long as there is proof of being the rightful beneficiary. The Constitution at Article 40 (2) (a) and (b), emphasises that Parliament shall not enact a law that permits the state or any person to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or to limit, or in any way restrict the enjoyment of any right under this Article based on any of the grounds specified or contemplated in Article 27 (4). Let the wisdom that motivated you to ask this question guide the family to an amicable settlement of your late father's estate.

Mr Mukoya is a lawyer with over 17 years of experience. He's the Executive Director, Legal Resources Foundation. Legal query? E-mail [email protected]