By AMOS MUOKI

NAIROBI

When Nduku’s husband died in 2015, she believed the worst was behind her. Together they had spent thirty years building a home in Nairobi and buying farmland in Machakos, and they had raised four children: three sons and a daughter. 

Her sons moved quickly. Citing Kamba custom, they told her that their married sister had no claim to the estate, and that she herself was only a caretaker of property that belonged to the male heirs.

They were wrong. Under the Law of Succession Act, daughters inherit equally with sons, a widow holds the estate in trust rather than as a caretaker, and the children of a child who has died can take that child’s place. The law offers clear answers to families who find themselves in Nduku's position.

The widow as trustee

When a person dies without a will and leaves a spouse and children, the estate is not simply split between them. Under Section 35 of the Act, the surviving spouse takes the personal and household effects outright, but has only a life interest in the rest of the estate. That means the right to use and enjoy the property for life, without owning it. The capital passes to the children when the spouse dies or, in the case of a widow, when she remarries.

The arrangement protects the family. It prevents a surviving spouse from selling the property or leaving it to outsiders, and it ensures the estate reaches the children as intended. The spouse may also give away part of the capital to the children during their lifetime, and a child who is unhappy with how that power is used can go to court.

Where there is no surviving spouse

If the deceased leaves children but no spouse, Section 38 of the Act applies, and the estate is divided equally among all the children. No child can claim a larger share because of gender, age or position in the family. The courts have refused attempts by sons to take the greater part of an estate and leave their sisters with a token portion.

Daughters, married or not

Many customary systems excluded daughters from inheriting land, on the assumption that they would marry and be provided for through dowry. The Act does not allow this. The most important statement of the principle came from the Court of Appeal in Rono v Rono [2005] 1 EA 363, where Justice Waki confirmed that the law does not discriminate between children on account of their sex. A daughter’s marriage does not reduce her entitlement, and customary law cannot be used to displace the Act in matters of intestate succession.

When a child has died first

If a child dies before their parent, that child’s own children are not left out. Under Section 41, they take, in equal shares, the portion their parent would have received. This is known as the principle of representation.

Consider a man with three children, Peter, Paul and Mary. Peter dies before his father, leaving two children. The estate is divided into three equal shares. Paul takes one, Mary takes one, and Peter’s two children share the third, receiving half of it each. Lawyers call this distribution “per stirpes”, meaning “by branches”. The grandchildren do not each receive a full share equal to that of their uncle or aunt.

Protecting minors

Section 41 also creates a statutory trust for children under eighteen. Their shares are held on their behalf until they come of age, and cannot be taken or squandered by others in the meantime. Administrators of the estate are expected to safeguard the property, often by opening a bank account in the child’s name, and it passes to the child when the trust ends.

Gifts made during the parent’s lifetime

Fairness also requires that earlier gifts be counted. Under Section 42, if a parent gave one child a significant gift or settlement during their lifetime, that benefit is taken into account when the final shares are worked out, and that child may receive less from the estate. Lawyers call this bringing the property into “hotchpot”.

A practical guide for families

Families dealing with an estate should begin by listing every child of the deceased, sons and daughters, married and unmarried, including children born outside marriage whom the deceased recognized. They should then establish whether any child has died, and if so identify that child’s own children, who may inherit their parent’s share.

If there is a surviving spouse, the spouse takes the household effects and a life interest in the rest, and the children receive the capital later. If there is none, the estate is divided equally among the children, with grandchildren sharing the portion of a parent who has died. 

Shares belonging to minors must be held in trust, and any earlier gifts to individual children must be accounted for.

The bottom line

Had Nduku’s sons known the law, they would have understood that their mother was entitled to hold the estate in trust for all four children, including their sister. Instead of trying to shut out their mother and sister, they should have worked together to see their father’s estate distributed fairly. The courts have been consistent that custom cannot override the Act. For families, the message is that all children are equal in law.

This column is for informational purposes only and does not constitute legal advice. Consult a qualified professional for guidance specific to your circumstances.