When children born out of wedlock fight main family for inheritance

Mark Too, Nginyo Kariuki

Businessmen and politicians Nginyo Kariuki (left) and Mark Too. Their estates are among those subject to an inheritance court fight triggered by children sired out of wedlock.

Photo credit: File | Nation Media Group

Christine, 29, and her brother Charles, 18, were born out of wedlock to a Muslim father and a Christian mother.

Following the death of their father in December 2012, the principal Kadhi in Mombasa held that their mother and her children born out of wedlock were not entitled to inheritance according to Islamic law.

The siblings decided to fight for a share of their father’s estate and at stake was property worth Sh180 million.

Christine and Charles (not their real names) were not only seeking a stake in the estate of their father, Mr SC, but also his share in the estate of their grandfather, Mr BH, who had died in 2004 and succession cause had not been concluded.

After being blocked by the Kadhi and their uncles refusing to give them a portion, the pair fought back and escalated the dispute to the High Court. Their argument was that they were entitled to inheritance as children of Mr SC and that being non-Muslims they were wrongly subjected to the Kadhi’s court.

They eventually won the legal dispute last year after the High Court declared that they were children of Mr SC and were entitled to inherit him as well as his share in his father’s estate.

They are among many children born out of wedlock by secret ‘spouses’ who stage legal battles against the ‘first’ families for a stake in the estate of their fathers.

Estates of late businessmen and politicians Lawrence Nginyo Kariuki and Mark Too are among those subject of an inheritance court fight triggered by children sired out of wedlock.

Children born outside marriage have also been getting the court’s backing in their quest for inheritance as various judges hold that there should be no form of discrimination and that all children have equal rights to inherit.

With proof of parental responsibility and paternity evidence, they have been securing victories in courts and setting judicial precedents.

The judicial precedents hold that children of an extra-marital affair or adulterous union are also beneficiaries of their father’s estate.

They are recognised as children for the purposes of succession and can inherit his wealth and that a woman’s marriage is not a factor in determining her child’s right to inherit her/his father.

The judicial precedents also hold that the children of a man, whose estate is under succession, include his children born out of wedlock to a woman/women who were not married to him.

To boost the number of children born out of wedlock, the judicial precedents further hold the fact that the mother was not married to the man who made her pregnant is no reason to bar the child from inheriting his estate.

They are entitled to share in the estate of their father, according to section 3(2) of the Law of Succession Act, unless they choose to renounce their shares.

Another holding is that “a child of an adulterous union is entitled to inherit his father as he is his progeny and cannot be expected to prove his mother’s marriage to his father”.

In the case of Christine, 29, and her brother Charles, 18, they were fighting their uncles, who wanted to disinherit them.

Christine and Charles argued that upon the death of their father, his children automatically stepped into his shoes.

Hence, they were entitled to a share of the estate of their grandparents whether they were born out of wedlock or not.

It was their argument that as heirs of their father, they were entitled to a share in the estate of their grandfather through their father or even directly as grandchildren.

Further that under Section 3(2) of the Law of Succession Act, they were recognised as children of Mr SC whether born out of wedlock or not.

Ruling on the dispute, Justice John Onyiego stated that parents’ failure to formalise their union cannot be used to deny children the right to inherit their father’s property.

“Since paternity is not denied or challenged, the failure of the parents in formalising their marriage cannot be visited on the children to deny them what they are by law entitled,” said the judge.

Some of the high-profile Kenyans whose estates are under court disputes filed by children born out of wedlock include Nginyo and Too.

Nginyo died on February 24, 2020, while Too died on December 31, 2016.

In the succession case of Nginyo, lawyer Brenda Nyambura Kiragu, who is his daughter born out of wedlock, is in court fighting his ‘first’ family over the management and distribution of his properties.

She also wants the court to nullify her father's written Will dated June 13, 2014 which excluded her as a beneficiary of the estate.

Nginyo left a Sh4 billion estate, including real estate, farming, bank deposits and government bonds, and a Will that is being contested in court.

He also had interests in several companies as well as money in several banks, particularly I & M Bank, Consolidated Bank, Habib Bank and Equity Bank.

He is survived by his widow Margaret Wangari Nginyo and her six children — Jane Wambui Kiragu, James Anthony Kariuki, Rose Wanjiru Kariuki, Sarah Mukuhi Kariuki, Scholastica Njeri Kariuki and Silas Macharia Kariuki.

Nginyo also had three children from two other women. They are Brenda Nyambura Kiragu, Alex Ndoria Karuri and Austine Wachira Karungo. They are disputing the validity of the Will and claim to have been left out.

The estate is the subject of an inheritance court fight triggered by a woman claiming to be the widow of the late politician and the three children born out of wedlock.

Brenda, through court, pushed for the extraction of DNA before Nginyo ’s burial that proved the politician was her father.

In the estate of Mark Too, a woman named Chepkoech Too, who is claiming to be his daughter, has since obtained court orders for a DNA test to establish whether she is his biological child.

She wants a share of his wealth and has applied in court to be listed as a beneficiary of the multimillion-shilling estate.

Ms Chepkoech contended that she is a daughter of Mr Too arising from his relationship with her mother, codenamed lJK.

She said that on her own volition to resolve the issue of whether she is a beneficiary of the estate, she underwent DNA testing and her sample was compared and confirmed with that of Mr AMB, who had been confirmed as a son of Mr Too.

But the family rejected those results and for this reason, she sought to have a DNA test conducted on herself and the known children of the late politician to determine paternity.

To support her case, Ms Chepkoech tabled photos of her mother with Too as proof of the existence of a relationship between the two.

She also attached evidence that she had been in touch with her step-siblings and that she had visited the late politician on various occasions. She provided evidence that she had been present at the funeral as well.

At stake in the succession dispute is the inheritance of Too's vast estate comprising money in banks, motor vehicles, houses in Nairobi, Nakuru and Eldoret, shares in various companies, maize and wheat farms and land parcels.

Too had an interest in several limited liability companies including Fanikiwa Limited, East African Investment Trust Limited, Charterhouse Investments Limited, Kingswal Holdings Limited, Jamala Holdings Limited, Grad East Africa Limited and Bins (Nairobi) Limited.

He also had 10 trailers, 10 tractors and 11 motor vehicles. Other properties include homes in Nairobi's posh estates such as Muthaiga and Lavington, Milimani in Nakuru and Elgon View in Eldoret town. Also at stake are 19 farms in Trans Nzoia, Nakuru, Uasin Gishu and Nandi counties.