The Kenyan Woman’s Place in Succession

Introduction

The law of succession also referred to as the law of inheritance basically deals with the transmission of property rights from the dead to the living. This area of law deals with transmission from the dead to the living and consequently inheritance is common in all human societies and is therefore a concept of universal application.

The 5^th edition of the Black’s Law Dictionary defines succession or inheritance as ‘’the devolution of title to property under the law of descent and distribution.’’ This definition therefore excludes those who take by deed, grant or any other form of purchase contract.

Arguably, this is driven by the desire to acquire property and as such, it is one of the ways of acquiring property due to the fact that when someone dies, the right to own and enjoy property rights die with them as well thus the rights over the property have to be acquired by someone else.

With consideration to the foregoing, the aspect of control has to also be factored in and considered. In most cases, people exercise this control in ways that are legal in the eyes of the law. However, philosophical decisions behind succession are the right of the owner to control that property even after death. Such people can do so through a will.

The main purpose of succession laws therefore is to provide the mechanisms through which property will be transmitted from the deceased to those who survive him/her and this automatically involves the following:

1. Identifying the legal claimants who claim the property.
2. Identifying the procedures of which such rightful claimants or dependents succeed to the property of the deceased.
3. Identifying the mechanisms for dispute resolution as provided so as to resolve any conflicts between persons who claim to be rightful owners.

However, patriarchal ideologies give shape to family life and defines it in terms of a bread winning husband and a domesticated wife or rather a housewife which in many cases is domesticated by the males despite the fact that some of these women may be making substantial contributions to the household income. Consequently men are attributed with greater economic power when it comes to determining how the family income and resources should be allocated.

Various communities and societies have their own set of rules despite the fact that inheritance is a universal concept. In Kenya however, we have Cap 160 which is the law of succession act and which is of general application. There are other laws which apply such as Islamic laws and customary laws which are fortunately or unfortunately exempted by the Act but still apply informally in practice.

During the colonial period, various laws used to apply and various statutes applied to the various communities at that time such as to Europeans, Africans, Hindus and Muslims as well. The advent of independence saw an attempt at moving towards uniformity i.e. an attempt to consolidate and harmonize the various laws of succession into one statute catering for various peoples of Kenya. This culminated in the enactment of the law of succession act in 1972. This was done with the aim of bringing to an end differential treatment of people carried out during the colonial period. After independence, emphasis was on equality and the enactment of the law of succession act was an attempt at this equality.

The succession of the estate of a deceased may however take two forms. It may be by a will which is referred to as testate succession or can also be without a will which will thus result to intestate succession. Both forms are recognized by the law regulating matters of succession in Kenya. Intestate succession or rather intestacy occurs when a person dies without having made a will or the persons attempt to die testate fail upon the invalidation of his will by a court of law or the person revokes his will and subsequently dies without having made another will.[1]

Intestacy may therefore be total or partial. It is said to be total where the intestate has left no valid will. It is partial where a person fails to include all his property in his otherwise valid will or part of the will is revoked or a person acquires property subsequent to the making of the will that is not ambulatory. The property not covered by the will is governed by the intestacy provisions or is subject to intestate succession.

The rules of intestacy however apply to property that is capable of being disposed off by a will and do not apply to joint property which passes by survivorship or to nominations, life policies written in trust, or the subject of a dornatio mortis causa and therefore Cap 160 makes provisions for both monogamous and polygamous situations. The nature of devolution of property therefore depends on whether the deceased was polygamous or monogamous.

The succession of the estate of a deceased could also be testate in that he dies leaving a valid will to direct how his estate should be devolved after his death. Despite the fact that this could be the case, women are still marginalized and affected by cultural practices and customary laws in great proportions.

This could occur where the deceased dies testate but in his will and due to cultural demands, excludes the girl child from his otherwise valid will. This has the effect that such a girl will not have a place in succession and it’s because the society’s background allows so. This shows that even though the deceased might die testate, women still face the risk of being disinherited and might as well have no place when it comes to succession.

Customary laws in most communities are never fair and do not safeguard the rights of women whether the spouse, spouses or even the girl child. This therefore means that when referring to women in this context, the girl child is also included because in one way or another, she will end up being affected by the same issues already affecting and similar to those affecting their mothers.

What does the Law of Succession Act say?

The Law of Succession Act provides that ’’except as otherwise provided in this act or any other written law, the provisions of this act shall constitute the law of Kenya in respect of and shall have universal application to, all cases of intestate or testamentary succession to the estate of deceased persons dying after the commencement of this act and to the administration of estates of those persons.’’[2]

The Law of Succession Act makes various provisions to regulate inheritance matters for the various types of marriages. The Act makes provisions for both Monogamous and polygamous types of marriages. The nature of devolution of property in intestate succession depends on whether the deceased was polygamous or monogamous. However, the rules of intestacy do not apply to the provisions of Section 32 of the Act.[3]

Most Kenyans undergo Christian marriages which of course are done under the African Christian Marriage and Divorce Act while many others choose to have Civil marriages conducted under the Marriage Act. The marriages conducted under the two Acts are monogamous in nature and therefore subsequent women and children who will have been begotten outside such a marriage would be concubines and therefore illegitimate respectively and according to the provisions of the Act.[4]

Legislative intervention has however addressed the problem. An amendment to the Law of Succession Act now regards the subsequent women as a wife and the subsequent children as legitimate.[5] This is to ensure that all are catered for and for the sole purpose of succeeding the man in the event that he dies. The amendment can be attributed to the perception of the Traditional African society on the family unit.

Monogamous Marriages

The law of succession act provides that subject to the provisions of Section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to the personal and household effects of the deceased absolutely and a life interest in the whole residue of the net intestate estate provided that, if the surviving spouse is a widow, that interest shall determine upon he re-marriage to any person.[6]

On the other hand, the Matrimonial Property Act provides that, a married woman has the same rights as a married man. These rights include to acquire, hold, administer, control, use and dispose of property whether movable or immovable, to enter into a contract and sue in her name.[7] This is a provision whose main purpose is to ensure that men and women are equal or rather have an equal status in a marriage union.

The Law of Succession Act provides that a spouse who makes a contribution towards the improvement of a non matrimonial property acquires a beneficial interest in the property equal to the contribution made by that spouse.[8] In this case, contribution means monetary and non-monetary contribution which includes domestic work and management of the matrimonial home, child care, companionship, management of family business or property and farm work as well as provided for by the act.[9]

The above assertions were reiterated in the case of Karanja v Karanja[10] where the court recognized the fact that a wife could help her husband acquire property through direct financial contribution. The contribution of a wife as a housewife or rather a housekeeper is no less important and her duties of taking care of her husband and children cannot be overlooked.

The dichotomy of continuum has also posed such a great challenge to succession matters. This has been between the western approaches and the traditional African approaches to issues concerning succession. The westernized jurisprudence puts matrimonial property within the limited confines of the family which is something that has been defined and interpreted by courts before.[11]

In the case of Rono v Rono[12] the sons claimed a greater share of their deceased father’s property that their sisters and their fathers widow. They advanced the argument that under Keiyo traditions, girls have no right to inheritance of their father’s estate and that even customary law supported their claim. However, the court found that where discrimination is at stake, the constitution and human rights standards must prevail.

In 2008, the above challenge was addressed again. In Re Estate of Lerionka Ntutu (deceased), it was argued that Maasai customary law did not recognize a daughter’s right to inherit property from her deceased father’s estate. The court and specifically Lady Justice Rawal made reference to and with reliance on the Rono v Rono decision overruled the application of Maasai customary law and therefore ruled that the daughters of a Maasai who had died without leaving a will were entitled to inherit his property not forgetting to emphasize the need to respect the requirements of CEDAW and International law together with women’s inheritance rights.[13]

In the above case, the question was whether the court was to apply the Law of Succession Act or apply the customary law of the Maasai community. The issue was clarified when Justice Rawal among other things held that any tenet of customary law which would abrogate the right of daughters to inheritance would be repugnant to justice and morality and could not be applied. This was a win for women because it meant that the daughter’s right to inheritance was recognized by the law.

 Polygamous Marriages

The Law of Succession Act provides that where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.[14]

The Marriage Act provides that Islamic and customary marriages are presumed to be polygamous or that they are potentially polygamous.[15] This has the effect that such marriages are considered to be polygamous before the law. The Act further provides that a person in a polygamous marriage shall not contract another, monogamous marriage.[16] Consequently, when one of the above marriages has been contracted, one lacks the capacity to contract a monogamous marriage.

Previously, women who were caught up in a polygamous labyrinth did not get anything in terms of inheritance of their deceased husbands which was very unfortunate. In Re Ruenji’s Estate, the marriage was under the African Christian Marriage and Divorce Act and Sachdeva J. held that women married under customary law by a man who had already or rather previously married under statutory law were not wives and their children were not children for the purposes of succession of the estate and were therefore not entitled to share in the estate of the deceased.[17]

In Re Ogola’s Estate, the same kind of holding was made. Simpson J. held that, a man married under statute is statute barred from contracting other marriages during the pendency of the statutory marriage and that any marriage so contracted are null and void, and the women so married are not entitled together with their children to inherit on the intestacy of the deceased man. This decision again bluntly women who were second wives to men who were already married under statute.[18]

In the matter of the Estate of Samuel Hopewell Gacharamu, the deceased had married his first wife under Gikuyu customary law. When he married a second wife, he married under the Kamba customary law although he again proceeded to marry the second wife under the Marriage Act. The issue that arose was as to who was the widow of the deceased and so entitled to inherit and it was also contentious as to what share should go to the two wives and children if both of them were declared widows.

The court held that the two were married under Gikuyu and Kamba customary law respectively and that the fact that the second wife was married under the Marriage Act merely facilitated the registration of that marriage but didn’t change the character of the marriage or even affect its validity. The two women together with their children were therefore entitled to a share of the deceased’s estate.

The decision in the Estate of Samuel Hopewell Gacharamu was reiterated in the decision in the Estate of Duncan Kiiru Karuku when the court stated that for the purpose of intestate succession, despite the fact that the first marriage was conducted under statute, the other wives and their children were the wives and children of the deceased and were therefore entitled to inherit.[19] Reference should however be made to Section 29 of Cap 160. The Act further provides for the mode of distribution.[20] In the above case, if not for the intervention of the court, the other wives would have been disinherited unfairly. This seems to be a direct interpretation of Section 3 (5) of the Law of Succession Act.[21]

In the Estate of Benson Ndirangu Mathenge, the deceased was survived by his two widows and their children as well. The first widow had four children while the second widow had six children. Ondeyo J. stated that the first house comprised of five units while the second house was comprised of seven units. The court stated that the two houses combined comprised of twelve units if looked at in terms of units. The 40 acre piece of land available for distribution was divided into twelve units out of which five were given to the first widow and her four children and the remaining seven to the second widow and her six children.[22]

What of married daughters?

Married daughters are still entitled to inherit their late father’s estate. The Constitution of Kenya 2010 provides that subject to Article 65, every person has the right, either individually or I association with others, to acquire and own property.[23] The constitution also provides that, the state shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.[24]

In the case of Samson Kiogora Rukunga v Zipporah Gaiti Rukunga,[25] the dispute was as to whether a married daughter has a right to inheritance. This was in Meru High Court where the objector, Consolata Ntibuka went to court to challenge her brother’s decision to evict her from their deceased fathers land on the ground that she was married. The matter was brought before Lady Justice Mary Kasango. Lady Justice Mary Kasango stated that in her view, the law as it is now, it matters not whether a daughter is married or not when it comes to consideration of whether she is entitled to inherit her parents estate.

The Constitution of Kenya 2010 in Chapter Five on Land and Environment provides that one of the principles of land policy is the elimination of gender discrimination in law, customs and practices related to land and property in land.[26] The Constitution further provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.[27] The above provisions of the Constitution of Kenya 2010 are tailored to ensure equality between men and women irrespective of the gender dominance.

The position that even married daughters are entitled to inherit their deceased father’s estates has again been reaffirmed in Re Estate of Pricilla Wairimu Kamau[28] where the court and specifically Lady Justice Martha Koome reaffirmed the provisions of the Law of Succession Act that daughters have equal inheritance rights just like sons do and she therefore held that the law doesn’t at all distinguish the children of the deceased on the basis of their gender or marital status.  The above ruling is also a win for the women a step towards ensuring equality between men and women in succession.

What if I am a Muslim woman?  

The Law of Succession Act further provides that “subject to subsection (4), the provisions of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim to the intent that in lieu of such provisions, the devolution of the estate of any such person shall be governed by Muslim law.”[29] This therefore means that matters to do with devolution of property of the deceased will conform to the provisions of the Holy Quran which states how the estate of the deceased shall be distributed.

The law of inheritance is a vital aspect of the Islam religion. Unfortunately, it can be argued that there is no equality for members subscribing to that religion when it comes to succession. Take for example the provision of the holy Quran that says, ‘’Allah ordains concerning your children that, the male shall have a share equivalent to that of two females. If the children are females numbering two or more, their proportion is two thirds of the inheritance.’’ [30] This is a clear disproportionate share amongst sons and daughters. But what can the law do about it? Well, nothing. Muslims are not subject to the provisions of the Law of Succession Act, period.

Conclusion

The law is everywhere and literally affects everything. It permeates every aspect of life to the point where whenever you peel off the layer of reality, the web of law is just beneath it. One would then ask themselves, where is this law that is said to have far reaching effects when women are being frustrated by men and a society which bows down to customary laws that violate women’s rights? Does it hate women? Is the law a chauvinist? Reflecting from all the assertions made above, it is clear that the issues affecting women are closely related to each other if not intertwined with legal stagnation, attitudes towards women, ignorance of the law and gender insensitivity.

The government has a role to play through legislation in combating the ill and rot in the society levelled against women with regard to succession. Legislation should therefore ensure equality between men and women and create a support mechanism for women’s claims as this is the best approach and solution to the paralysis of desperate women trying to figure out which way to go. It is the best way to understand the contours and cracks of their desperation and suffering. Women should be empowered to demand their rights, they should not wait for things to happen to them, they should be able to make things happen.

BY:
Kayere Ephraim

LAED-Kituo Cha Sheria

[1] See Section 34 of the Law of Succession Act

[2] Section 2 (1) of the Law of Succession Act

[3] Section 32 of the Law of Succession Act provides that ‘’the provisions of this part shall not apply to Agricultural land and crops thereon; or livestock situated in such areas as the Minister may, by notice in the gazette, specify.’’

[4] See Section 2 (2) of the Law of Succession Act

[5] Section 3 (5) of the Law of Succession Act

[6] Section 35 (1) of the Law of Succession Act

[7] Section 4 of the Matrimonial Property Act

[8] See Section 9 of the Matrimonial Property Act

[9] Section 2 of the Matrimonial Property Act

[10] Karanja v Karanja [1976] KLR 356

[11] See the case of Hyde v Hyde [1861-73] ALLER 175

[12] Rono v Rono & another(2008) KLR G & F 803

[13] Re Estate of Lerionka Ntutu, [2008] eKLR

[14] See Section 40 (1) of the Law of Succession Act

[15] Section 6 (3) of the Marriage Act

[16] Section 9 (b) of the Marriage Act

[17] Re Ruenji’s Estate (1977) KLR 21

[18] Re Ogola’s Estate (1978) KLR 18

[19] Succession Cause No. 74 of 1987, Estate of Duncan Kiiru Karuku

[20] Section 40-42 of the Law of Succession Act

[21] Section 52 of the Law of Succession Act provides that, notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular Section 29 and 40 thereof, and her children accordingly children within the meaning of this Act.

[22] High Court Succession Cause No. 231 of 1998

[23] See Article 40 (1) of the Constitution of Kenya 2010

[24] Article 27 (4) of the Constitution of Kenya 2010

[25] See the case of Samson Kiogora Rukunga v Zipporah Gaiti Rukunga 2001 [eKLR] available at http://www.kenyalaw.org

[26] See Article 60 (f) of the Constitution of Kenya 2010

[27] Article 27 (3) of the Constitution of Kenya 2010

[28] See the case of Re Estate Pricilla Wairimu Kamau [2005] eKLR

[29] Section 2 (3) of the Law of Succession Act

[30] See Sura 4 Verse 11 of the Holy Quran