My Journal




The Problem (Pt 1)

The other day, a discussion sprouted in my Book Club WhatsApp Group concerning death, and very quickly it spiraled towards the Subdivision of Estates after the death of a loved one. This prompted me to think about having a dreaded conversation with my own father concerning his desires about division of his estates upon his…”You know”. See, I come from a blended family and like most African families I know, this type of conversation is usually distasteful.

From influential post-independence families to the average Wafula family, cable news outlets and online feeds have been awash with stories of succession cases gone ugly, with some rated as thriller-worthy. I know I am not the only one who wonders why this seems to be the case, and while we may quickly note that power, money and greed surface as the common thread tying all these cases together, a deeper look may suggest otherwise.

As the referee waves, “Play on!”, she can only ask one question: Is the problem then the law, the decedent or the heirs to the estate?


1. The Family:

In Kenya, customary law and practice has always defined and regarded the family in more expansive terms as opposed to the westernized definition of man, one wife and children of the marriage.

Dr. Patricia Kameri-Mbote

This can equate to matrimonial property being managed in a manner befitting the interests of the extended family.

The Other Woman/Cases of Blended Families:

One can only contract one type of marriage as stipulated in the law. However, it is a reality that many Kenyans contract Christian or civil marriages before falling back to customary marriage practices, to get subsequent “wives” (which in some cases, is a cover up for adultery.)

The existence of women and children outside the formally contracted marriage then complicates the matter, especially, if they are not duly acknowledged by the “larger” family. Children begotten outside the marriage have since been recognized as legitimate as per Section 3 (5) of the Succession Act. Once legitimacy is established, they are then entitled to a piece of the estate left behind. However, the problem in this case usually is the acceptance of the other woman and her seed. This is because they are seen as “grabbers”. They did not actively contribute to the acquiring of the estate. Hence the issue of the deceased providing for them while alive becomes immaterial to the ‘larger’ family.

Siblings and the surviving Spouse:

Most succession cases point to a salient conflict that doesn’t just come out of the blue. The death of a loved one brings to surface prior underhanded tension between family members, especially in relation to their relationship with their parents. Property acquisition is as much an emotive issue as it is an economic issue. It is worth noting that African culture, just like many others, has placed a high significance on acquisition of ancestral property. Simply put, when our parents die, we as their heirs equate the value of our inheritance to the approval we so seek from them.

On the other hand, when a sibling dies, many times there is a spat between the surviving spouse and the remaining siblings on account of exclusion of certain assets belonging to the deceased.

This provides enough fuel for the manipulative behaviour we so often witness amongst heirs; denigrating heirs against fellow heirs, using whispered lies to the testator to tilt the will in their favour, tampering of wills and other necessary documents, and other elements of inheritance theft.

The Daughters’ Aspect:

‘Under the customary law of most ethnic groups in Kenya a woman cannot inherit land, and must live on the land as a guest of male relatives by blood or marriage’ (GOK Policy Notes, 2006: supra note 3 )

The problem of daughters being left out of consideration and legal proceedings in the division of an estate, especially ancestral, is not new in Kenya (see Succession Cause 1293 of 2002). This rides primarily on the patriarchal attitude that daughters ideally ought to move out of their father’s home and acquire property from their new home. By virtue of customary law in the determination of such matters, many women get discouraged to fight for such estates, and when they do, they begin from a disadvantaged position in law.

2. The State (through The Judiciary):

The State provides two major avenues through which an estate can be appropriately managed:

  1. Courts and other quasi-tribunals, (the most common) and
  2. The Public Trustee in the Attorney-General Chambers (where no executor has been appointed.)

The current backlog of succession cases (akin to other cases) can be attributed to:

  1. Adversarial nature of our judicial system, where the fact finder in a case cannot actively pursue justice, they play a rather passive role of listening to what opposing parties have to say and issue judgments  based on evidence presented before them. With the passive role required of judicial officers, they can’t be seen to aid in the cases, even if it means that the rightful dependents end up disadvantaged by crafty advocates. 
  2. Deliberate foul play in way of causing prolonged and unnecessary delays in such matters, at times due to vested interests by a party to the case or cost benefits in a protracted case. With the judicial system flaws (discussion for a later date) existing loopholes are easily exploited by crafty lawyers to their own and those of their clients benefit, at the expense of justice. 
  3. Inadequate capacity in terms of personnel (judicial officers and staff) as well as infrastructure (physical courts and ICT tools yet to be fully leveraged for online venues). The strain is experienced especially when the same officers handle other high-priority cases such as those dealing with capital offences.
  4. Legal pluralism, where there is no uniform application of the law while dealing with succession matters. Cherry-picking of the law as well as different interpretations to the law lead to these cases being solved differently, with some judicial officers placing more emphasis on customary law in the Kenyan context while others sticking to statutory law.

3. The Desires of the Deceased:

While the decedent at this point cannot speak for themselves, their actions prior to their death equally have an influence on the whole saga that plays on when they exit the stage. 

The Last Will and Testament- Does it Really Matter?

The last will and testament; usually referred to as a Will, exist for the primary reason of communicating the wishes of the dead prior to their death. Though other reasons suffice, this discussion will focus on the role of the Last Will in the division of an estate.

It is not mandatory for someone to write a Will (most people don’t) while alive. When the coin flips, arrangements are usually made to divide the properties. These arrangements can be made as per the individual’s Last Will (testate succession) or by a court (a third party) in the absence of a Will (intestate succession).

On the surface, it is easier to make a Will. While articulating your wishes, you ensure that your loved ones are taken care of according to your own formula. You can include or exclude whoever you please. Sounds pretty straightforward, right? Then, why are we witnessing so many wills being successfully challenged in court?

In the second part of this series, we will shed more light on the law of the Will and division of an estate, in the ranking of claim to the estate of the deceased between dependents and creditors. Of course we will explore solutions, because “Every problem contains within itself the seeds of its own solution.”-Stanley Arnold.

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