Intestate Succession In Polygamous Settings In Kenya

Polygamy, best described as the practice of a man having more than one wife at a time has long been practiced in Kenya, especially under customary and Islamic marriage settings. The Marriage Act 2014 recognizes customary marriages as being potentially polygamous, and post-2017, the law now requires one to register their customary marriage. While intestate proceedings of a monogamous deceased can be straightforward, intestate proceedings where the deceased was in a polygamous union has specific factors that need to be considered in administration of the estate. Such factors include, the number of years each spouse was married, the number of children, property acquired through joint contribution (equal or not) and sometimes property shared out during the life of the deceased. In this article, we will discuss the court’s approach to determining the mode of distribution of estates with polygamous families. 

Intestacy Succession

Intestacy occurs where one dies without a will, where there was a will that was invalidated by the court or where there is some property that was not included in a will (partial intestacy).

The specific law that applies to intestacy succession in polygamous settings is Section 40 of the Law of Succession Act (Cap. 160, Laws of Kenya) (the “Act”) which provides as follows;

“…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…”

The Act further defines a “house” as;

“a family unit comprising a wife, whether alive or dead at the date of the death of the husband and the children of that wife”

Is the division to the houses automatic based on their number?

While the wording of the law is that division of such property is based on the number of persons per house, e.g. House A has 7, House B has 9, House C has 2, the courts have severally held that there are other factors that are to be considered when making such distribution, so that justice is not only deemed to be done but also, seen to be done.

In the case of Mary Rono v Jane Rono & another [2005] eKLR, the Court of Appeal held as follows; 

“…The possibility that girls in any particular family may be married is only one factor among others that may be considered in exercising the court’s discretion. It is not a determining factor…”

Courts have also held that applying the strict meaning of section 40 of the Act may cause injustice in certain instances and the courts take into account the unique circumstances of each case. In the case of Scholastic Ndululu Sura versus Agnes Nthenya Sura [2019] eKLR, the Court of Appeal held that;

‘…although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has the discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.’’

An example of the court considering the circumstances of the matter was in Kyoa Ndewa v Patrick Mulyungi Ndewa & another [2022] eKLR. The court noted as follows;

“The courts have held that applying the Section strictly in some instances can lead to serious injustice. This was held in Rono versus Rono [2005] eKLR 538, Rael Vulekani Musi versus Rachel Edagaye Akola [2016] eKLR and in the Estate of the late George Cheriru Chepkosiom [2017] eKLR. 

In those cases, courts held the position that the contribution made by the 1st wife should be taken into account to avoid the injustice of having a wife who had spent the better part of her life contributing towards acquisition of assets with the deceased having to get equal share with a younger wife who comes into the picture later on after assets have been acquired. The courts were of the opinion that before subjecting the net estate into equal distribution, evidence of the contribution of the 1st wife should be taken into account so that she is given her due share.”

What happens where the deceased had children out of wedlock?

The laws of Kenya have made it abundantly clear that children born in and out of wedlock are considered on an equal basis. Any discrimination against children born out of wedlock is unconstitutional. 

This same principle applies in matters of succession. In the case of Re Estate of Joseph Eric Owino (Deceased) [2022] eKLR, the court held as follows;

            “…for purposes of succession, all children, in spite of the marriage status of their parents are entitled to an inheritance. The aforementioned statement refers to children who fall within the parameters of Section 3 (2) of the Law of Succession Act.

This court is inclined to disregard the mode of distribution proposed by the 1st Applicant since the same does not make provision for the entitlements that are due to the deceased’s children who were born out of wedlock. If such a mode of distribution was to be adopted by this Court, it would result in manifest discrimination in contravention of the provisions of Article 27 of the Constitution of Kenya, 2010 which expressly prohibit discrimination on any ground…”

In the same case, the court went ahead to state that children of the deceased are supposed to be provided for, whether they were born in or out of wedlock.  

“…Failing to provide for the deceased’s children born out of wedlock amounts to discrimination on grounds of the marital status of their parents since unlike the children born to the 1st and 2nd house who were duly provided for in the mode of distribution, the children born to the deceased out of wedlock are entitled to an inheritance and their aforementioned entitlement should not be taken away simply because their mothers were not married to the deceased…”

Conclusion

The approach to intestate succession proceedings with polygamous families is evidently not black and white. In the interests of justice, the courts have been seen to employ a welcome approach that takes into account the unique circumstances of each family. While intestate succession in a polygamous setting may be prone to long litigation, embracing mediation and other alternative dispute resolution mechanism can help the family settle any disagreements in a timely and concise manner. Engaging qualified family law advocates is advantageous for the family even in the mediation process.

How can we be of help?

The Wealth and Private Client team is well-equipped to handle matters that include estate planning, drafting of wills, setting up and managing a trust and business succession planning. We have a wide variety of resources, skills, and experience on matters of family law including but not limited to Contentious and Non-Contentious Succession & Probate, Separation/ Divorce/Annulment and Matrimonial Property Matters, Children matters, litigation and mediation of these and many other matters spanning across the East African Region and other International Regions.

Should you have any questions regarding the subject of establishing a blind trust or a family trust, or related topic, please do not hesitate to contact  us onlaw@cmadvocates.com or dgichuru@cmadvocates.com

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Nelima Walubengo Tindi- Senior Associate

Gideon Letaya- Legal Assistant

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Dianah Gichuru- Partner & Head of Unit

Nelima Walubengo Tindi- Senior Associate