By AMOS MUOKI

John Mutua was a successful farmer in Kitui County. He married two wives under Kikuyu customary law. With his first wife, he had three sons and two daughters. With his second wife, whom he married twenty years later, he had four daughters. When he passed away in 2005, he left behind substantial agricultural land, livestock, and several rental properties in town.

The question that now confronts his family is a difficult one: how should his estate be divided between the two houses? His first wife argues that she helped him acquire most of the assets during their many years together and deserves a larger share. 

His second wife insists that all his children are equal and the estate should be shared equally between the two families.

This is the dilemma that Section 40 of the Law of Succession Act was designed to resolve. For millions of Kenyans who live in polygamous marriages, this provision provides the legal framework for distributing the estate of a deceased husband and father. Its application, however, is not always straightforward and has generated considerable debate.

The Legal Framework Under Section 40

Section 40 of the Law of Succession Act addresses what happens when a polygamous man dies intestate. The provision begins by stating that the deceased's 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.

This means the estate is not divided equally between the widows. Instead, it is divided based on the number of children each wife has borne, with each wife then added as an additional unit to the number of her children. 

In practical terms, one first counts the children in each house, adds the wife as one further unit, and then divides the estate proportionally among the houses on that basis.

Understanding the "Unit" System

The best way to understand Section 40 is through a practical example. Consider a deceased man with two widows, where the first has four children and the second has six. Under Section 40, the first house is treated as having five units, that is, four children plus the widow, while the second house has seven units. Together, the estate is divided into twelve units, so the first house receives five-twelfths of the estate and the second receives seven-twelfths.

This is precisely the approach the Nakuru High Court took in In the Matter of the Estate of Benson Ndirangu Mathenge (deceased). There, the deceased was survived by two widows and their children, the first with four children and the second with six. The court divided the available land into twelve units, giving five to the first house and seven to the second.

Once the estate has been divided among the houses in this way, distribution within each house then follows the ordinary provisions that apply to monogamous families, meaning the property allocated to each house is shared out according to Sections 35 to 38 of the Act.

The Rono v Rono Decision

The most significant case on this subject is the Court of Appeal decision in Rono v Rono and another [2005] 1 EA 363. The case involved a deceased man survived by two widows and their nine children between them, the first widow's house comprising three sons and two daughters, and the second's four daughters.

The first house sought to have the estate shared in accordance with customary law, under which the second house would have received a far smaller share, since daughters were not traditionally entitled to inherit land from their fathers. The second house argued instead for the application of Section 40.

In a judgment delivered by Omolo JA, Waki JA and O'Kubasu JA, the Court of Appeal held that customary law did not apply and that Section 40 governed the matter. Omolo JA observed that the section does not require the estate to be shared equally between the houses, but rather calls for the number of children in each house to be taken into account, so that distribution is proportional rather than equal. 

The court also underscored an important point of fairness: Waki JA noted that there is no discrimination between children on the basis of sex, and that daughters in both houses were entitled to inherit equally with their brothers.

The Daughter's Dilemma: Are They Entitled to Inherit?

One of the most common disputes in polygamous intestacy cases is whether daughters should inherit at all. Under traditional customary law in many Kenyan communities, daughters were often excluded from inheriting land, on the expectation that they would marry and receive their due through dowry instead.

Section 40 has done away with this distinction entirely. It does not differentiate between sons and daughters. Every child, regardless of gender, is counted as a unit, so a house with four children receives the same number of units whether those children are all sons or a mix of sons and daughters.

This principle was addressed directly by Musinga J in Kuria and another v Kuria. The dispute pitted a son of the deceased's first wife and a surviving widow against a married daughter of the deceased, with the son and widow arguing that a married daughter had no claim under Kikuyu customary law. The court ruled decisively that Section 40(1) applied and does not discriminate between daughters and sons in matters of intestate succession. 

The estate was divided between the two houses according to the number of children in each, with the surviving widow added as an additional unit, producing nine equal units shared among the nine survivors. 

The court made clear that while married daughters were free to choose to surrender their shares to their siblings, they were fully entitled to inherit if they wished to keep them.

The Unfairness Debate: Is Section 40 Fair to Widows?

Despite its clarity, Section 40 has been criticised for its perceived unfairness, particularly in how it treats widows who married early and contributed significantly to building up the family's assets.

Consider a scenario in which a man marries his first wife while young and poor, and the couple spend decades working together to acquire substantial property and raise several children.

Twenty years later, he marries a second, much younger wife, who contributes little to the family's wealth but bears several children of her own. 

Under Section 40, both widows are treated identically, each counted as one unit regardless of her contribution, so the first wife, who helped build the estate, receives no greater recognition than the second wife, who joined the family long after the bulk of the property had been acquired.

The courts themselves have acknowledged this imbalance. In Mwangi Giture, Koome J observed that the provision is unfair to widows who participated in acquiring the greater part of the estate, since they end up with a share equal to that of a younger wife married many years later who contributed very little to the family's assets. Even so, the court made clear it had no discretion in the matter: Section 40 is the law, and the courts are bound to apply it as written.

The Statutory Trust for Minor Children

A further important provision is Section 41 of the Act, which creates a statutory trust in favour of minor children. Where children are below the age of eighteen, their share of the estate is held on trust until they come of age.

In In the Matter of the Estate of Joseph Kimemia Gichuhi, Koome J stated that Section 41 requires property devolving upon children to be held in trust for them until they turn eighteen, with the administrator acting as trustee until then. 

This provision carries particular weight in polygamous families, where children of widely varying ages are common, since the trusteeship ensures minors are protected until they are old enough to manage their own affairs.

Practical Guide for Polygamous Families

For families facing the distribution of a polygamous intestate's estate, the process generally unfolds in a set sequence. It begins with identifying all the "houses," each consisting of a widow and her children; where a widow has predeceased the deceased, her children still constitute a house for distribution purposes, since, as the Court of Appeal put it in Kanyi v Muthiora [1984] KLR 712, houses never die when there are heirs to succeed them. 

Next comes counting the children in each house, where every surviving child counts as a unit, whether son or daughter, married or unmarried, followed by adding one further unit for each surviving widow. 

The net intestate estate is then divided proportionally among the houses according to their respective units, after which property within each house is distributed according to Sections 35 to 38, as though the deceased had been married to that wife alone. Finally, where children are minors, their shares must be held in trust under Section 41 until they reach adulthood.

What the Law Does Not Allow

It is equally important to understand what the law does not permit. Section 40 does not allow customary law to determine distribution; as the Court of Appeal made clear in Rono v Rono, such law has been excluded by Section 2(1) of the Act, save for the limited exceptions in Sections 32 and 33. Nor does the law allow a court to weigh a widow's contribution to the acquisition of the estate. Unfair as this may seem, the courts have repeatedly held that they have no discretion in the matter. The formula set out in Section 40 must simply be applied.

Final Word

Section 40 of the Law of Succession Act represents a significant departure from traditional customary law. It seeks to ensure that all children of a polygamous marriage, regardless of gender or which house they belong to, are treated fairly in the distribution of their father's estate.

Yet the provision is not without its critics. The failure to distinguish between widows who contributed to the acquisition of the estate and those who did not has been described by the courts themselves as unfair. Nevertheless, until Parliament amends the law, the courts remain bound to apply Section 40 as it is written. 

For polygamous families, the message is clear: understand the law, count your units, and distribute accordingly. The courts will not apply customary law, and they have no discretion to depart from the statutory formula.

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

Imagine a soldier heading to the battlefield who writes to his son: "If anything happens to me, everything I own is yours." He survives the war and lives another thirty two years without ever making another will. When he finally dies peacefully in old age, does his son inherit under that old letter? Or picture a husband and wife who set out their final wishes in one shared document. When the wife dies first, can that document be admitted as her will?

Both questions turn on two of the more unusual corners of succession law: conditional wills and joint wills. The Law of Succession Act is silent on both, but Kenyan courts continue to recognise them as part of the common-law inheritance the country received from England. 

A conditional will only takes effect if a specified event occurs, and the courts must work out whether that event was a motive for making the will or a genuine pre-condition for it to operate. A joint will, meanwhile, is a single document made by two or more people, yet it functions as separate wills for each of them. Neither is addressed in Kenya's statute book, and lawyers generally advise against both, for the same underlying reason: uncertainty.

Understanding how they work matters for anyone thinking seriously about testamentary freedom  and for anyone tempted to add a condition to their own will without realising what that might cost their heirs.

Conditional wills

A conditional will takes effect only if a specified event occurs. If the event never happens, the will is void, and the testator is treated as having died intestate  as though no will existed at all. A person about to set off on a dangerous journey, for instance, might write: "This will shall only take effect if I die during this expedition." If they return safely and die years later of natural causes, that will has no legal force whatsoever.

The difficulty for courts lies in telling apart two very different intentions behind similar wording. In the first, the event is simply the motive: the danger prompted the testator to make a will, but they meant it to apply on their death, whenever and however that occurred. 

In the second, the event is a pre-condition: the testator meant the will to apply only if that specific danger materialised, and if it didn't, the will was never meant to operate at all. Because the two readings can turn on a single word, English case law  which Kenyan courts still draw on  offers three useful illustrations.

The soldier's letter: Re Spratt's Goods 

An army officer serving in New Zealand's Maori War wrote a "privileged will" — a will exempt from the usual formalities because of the circumstances of active military service. In it, he left everything to his son "should anything happen" to him.

 He survived the war and lived another thirty-two years without revoking or replacing the letter. The court admitted the will to probate, holding that "should anything happen" described the officer's motive for writing at that moment, not a condition on which the gift depended. The son inherited the full estate.

Motive or pre-condition? 

Whether a clause is a motive or a condition is not fixed by any formula; it is a matter of construing the testator's actual words against the surrounding circumstances. Courts ask, in effect, whether the testator meant "I am writing now because I face danger, but I want this to apply whenever I die," or whether they meant "this applies only if that particular danger kills me."

Where this leaves conditional wills in Kenya

Section 5 of the Law of Succession Act gives every person of sound mind, who is not a minor, the freedom to dispose of their property by will, but it says nothing specific about conditions attached to that disposition. In practice, conditional wills are rare in Kenya, and most practitioners advise against them. If a court reads an ambiguous condition differently from what the testator intended, the estate can end up distributed under intestacy rules that bear little resemblance to the testator's actual wishes. 

Anyone still set on a conditional will should state their intention in terms that leave no room for argument, saying explicitly whether the stated event is a condition the will depends on, or simply the reason they chose to write a will at that particular time.

Joint wills

A joint will is a single document in which two or more people typically spouses, set out their testamentary wishes together. Despite the shared document, the law treats a joint will as two separate wills, not one will belonging to both people jointly.

How it plays out on death

If a wife dies first, the joint document is admitted to probate as her will alone, and her husband's portion stays dormant. When he later dies, the very same document goes to probate again, this time as his will. One physical instrument ends up serving as two separate testamentary acts, executed together but taking effect at different times.

Why lawyers advise against them

The Law of Succession Act neither prohibits nor expressly provides for joint wills, and Kenyan courts accept them as valid provided they meet the formalities in Section 11 signed by the testator, or by someone else in their presence and at their direction, and witnessed and attested by two or more competent witnesses. Even so, most practitioners steer clients away from joint wills, largely because changing one's mind gets complicated: since both people's wishes sit in one document, one party altering their share may require the other's consent, or force a full revocation and fresh start. 

Attribution can also become unclear, since a poorly drafted joint will can leave it genuinely uncertain which provisions belong to which testator. And circumstances change after the first death. A surviving spouse who wants to remarry or revise their estate plan may feel, rightly or wrongly, bound by terms agreed jointly years earlier. Separate wills, cross-referenced where useful, generally achieve the same goals without these complications. 

Where a joint will is presented for probate after one maker's death, courts treat it as that person's will alone, and expect the document to make clear which provisions are whose.

The bottom line

For most people, the safest path remains a straightforward, properly executed will, free of conditions and shared authorship. Anyone drawn to a conditional will should spell out, in unambiguous language, whether the stated event must occur before the will operates. 

Anyone drawn to a joint will should weigh whether separate wills  simpler, more flexible, and easier to amend  would serve them just as well, and if not, ensure the document clearly separates each party's wishes.

Conditional and joint wills are genuine, if uncommon, features of Kenyan succession law. They illustrate how far testamentary freedom can stretch to accommodate unusual circumstances. But for nearly everyone, they remain more interesting as legal curiosities than as practical planning tools. As practitioners often put it: keep your will simple, keep it clear, and keep it unconditional.

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