Widows ‘not entitled to capital assets’, judge says in shock ruling

Reuben Nyakundi

Malindi High Court Judge Reuben Nyakundi.

Photo credit: File | Nation Media Group

What you need to know:

  • Malindi High Court judge Reuben Nyakundi said a widow’s entitlement to absolute access to the estate is limited to personal and household goods.

A widow is not entitled, absolutely and exclusively, to the estate of her husband, but only to a life interest over the property, the High Court has ruled.

Malindi High Court judge Reuben Nyakundi said a widow’s entitlement to absolute access to the estate is limited to personal and household goods, but not capital assets, which are meant for the children.

The judge made the arguments in a case in which a family wants a divorcee and widow, who remarried after the demise of her husband, locked out of the inheritance.

“She is entitled only to a life interest over the property, for the ultimate destination of the property of the deceased is not to her but the children,” Justice Nyakundi said.

“It is about a parent passing property on to his or her descendants but not to contemporaries or ascendants.”

Justice Nyakundi argued that the concept of succession, whether under statute, common or customary laws, is about generational transfer of wealth from parents to their children.

“That is why the property passes absolutely to the children but not to the surviving spouse, who would only be entitled to a life interest over that property,” the court said.

The judge, however, added that he is aware of the argument that the spouse should have priority over the children, and that the property ought to pass to him or her exclusively and absolutely first, and subsequently to the children following his or her death.


But Justice Nyakundi also said that contention has no backing in law and is contrary to the concept of succession.

“It should be emphasised that succession is not meant to be within a generation, where property passes from one spouse to the other,” he said.

“It should be outside, where family wealth passes from one generation to the next.”

ISB moved the court under a certificate of urgency to block the remarried widow from interfering with the deceased’s homes, pending the hearing of the succession row.

“Let the court order that the three widows and their children continue living in their matrimonial homes without interference,” ISB told the judge.

The applicant wanted an order declaring that the woman has since remarried hence her interest in the deceased’s estate is no more.

He also wanted an order directing the inheritance case to begin afresh six years into the dispute.

The row relates to the property of SB, who died intestate on July 22, 2014.

He had three wives – ZSM, MS and ZSS.

Court records indicate that there were no formal divorce or separation proceedings filed, though ZSM and SB lived apart.

The applicant told the court that at the time of the man’s demise, he was still married to ZSS, but her interests in the deceased’s estate were extinguished the moment she remarried.

The complainant added that he obtained court documents, showing MS applied for divorce twice but one plea was withdrawn.

He said the man died before the court could issue final orders in the second divorce.

“It would be a failure of justice to allow MS and ZSM to administer the deceased’s estate, based on the above reasons,” he said

Former wives

The women, however, insisted that the complainant raised the issues prematurely and that keeping the succession pending offends the rule of natural justice of determining matters expeditiously and justly.

The two also accused the complainant of filing the application despite a consent recorded by the parties in the case to abandon numerous applications and focus on the main suit.

The Succession Act defines a “dependant” as the wife, wives, former wife or wives and children of the deceased, whether or not maintained by the man immediately before to his death”.

Justice Nyakundi relied on the Act to dismiss the complainant’s arguments that remarrying or dissolving a marriage disqualifies the two women from claiming the man’s property.

“This, to the mind of the court, therefore, rules out the issue of whether one of the widows has since remarried or is a divorcee as has been said by the applicant. The dependants in this matter remain the ones indicated in the letter by the area chief,” Justice Nyakundi said.

“The argument being advanced by the applicant that some of the widows are divorcees or have since remarried remains an issue that the court will look into during the final determination of this petition.”

The judge added that evidence presented to him showed the women were married to the man and got children form the unions.

“The court makes an order that the assets of the deceased’s estate remain intact, without interference from any of the beneficiaries,” Justice Nyakundi said.

“The beneficiaries should continue living in their matrimonial homes.”

The judge said he would accept oral evidence from the beneficiaries, with a final order that the status quo on the property be maintained, pending determination of the succession case.