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Court of AppealPartially AllowedCivil Appeal No 66 of 2002· [2005] KECA 326 (KLR)

Rono v Rono & another (Civil Appeal 66 of 2002) [2005] KECA 326 (KLR)

Court of Appeal of Kenya
29 April 2005
PWP. N. WakiROR. S. C. OmoloEOE. O. O'Kubasu
4,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled daughters cannot get smaller inheritance shares than sons merely because they might marry.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Eldoret against Nambuye, J.'s distribution of the intestate estate of Stephen Rono Rongoeicherono, a polygamous Keiyo farmer who died in 1988 leaving two widows, nine children and, among other assets, 192 acres of agricultural land in Uasin Gishu. The High Court, invoking Cotran's Restatement of African Law and the possibility that daughters might marry, allocated only 5 acres to each daughter and gave the first widow's house a larger share, distributing the estate's liabilities equally between the two houses. Waki, JA held that the Law of Succession Act, which commenced in 1981, governs the estate with universal application; the customary law exemption in sections 32 and 33 did not apply because Uasin Gishu was not among the districts specified by the Minister. The learned Judge of Appeal held that the court's discretion must be exercised judicially on sound legal and factual basis, that speculation about the daughters' future marriage was not a determining factor, and that discrimination on grounds of sex is contrary to the Constitution's section 82 and to ratified international instruments including CEDAW and the Banjul Charter, which the court applied in line with the Bangalore Principles. The land distribution was set aside and substituted: 2 acres for the farmhouse held in trust, 30 acres to each widow, and 14.44 acres to each of the nine children. The conceded half share of Iten plot No. 117 goes to the appellant. The liabilities order was left undisturbed and, as a family matter, each party bears its own costs. Omolo, JA concurred separately, stressing that the Act does not mandate strict equality among heirs.

Key legal issues

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01

Applicable law governing the estate

Holding

The estate falls under the Law of Succession Act; customary law is expressly excluded because Uasin Gishu district is not among the districts specified by the Minister under sections 32 and 33, so even the agricultural land is distributed under written law.

Reasoning

The deceased died in 1988, after the Act commenced on 23.06.1981 by Legal Notice No. 93/81. Section 2(1) gives the Act universal application to intestate succession. Although sections 32 and 33 exempt agricultural land and livestock, that exemption applies only 'in such areas as the Minister may by Notice in the Gazette specify'. Legal Notice No. 94/81 does not list Uasin Gishu, so written law applies even to the 192 acres.

p. 8
02

Sex-based discrimination in distribution

Holding

The superior court erred in whittling down the daughters' shares to 5 acres each on the speculation that they would marry; there was no firm factual basis for that finding, and the discrimination contravenes section 82 of the Constitution and international norms such as CEDAW and the Banjul Charter.

Reasoning

All but one daughter were unmarried or divorced in 1994 and advanced in age, and eleven years later there was no evidence of change. The deceased had treated all children equally. The respondents themselves proposed 14 acres per daughter. The court also invoked ratified international instruments and the Bangalore Principles to inform its reading of the anti-discrimination guarantee, since the central issue cannot be addressed by domestic legislation alone.

p. 8
03

Correct distribution of the net estate

Holding

Section 40(1) requires distribution by houses according to the number of children in each house, adding each widow as an additional unit, with no discrimination on account of sex; the land was redistributed accordingly - 2 acres for the farmhouse, 30 acres to each widow and 14.44 acres to each of the nine children.

Reasoning

Section 40 applies to the polygamous estate and section 3 defines a house as a family unit comprising a wife and the children of that wife, with no sex discrimination among the children. Balancing all relevant factors, the court substituted its own distribution, giving equal acreage to the widows and equal shares to all nine children, with a communal farmhouse of 2 acres held in trust by the joint administrators.

p. 9
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Limits of the equality principle

Holding

The Act does not mandate absolute equality of shares among all heirs; the judge retains discretion to consider the number of children in each house and the differing needs of children.

Reasoning

In his separate concurrence, Omolo, JA emphasised that section 40(1) contemplates the number of children in each house being taken into account, and that forcing equal portions on, say, a young child needing schooling and an adult already working would work injustice. What the lead judgment holds is only that in the circumstances of this case there was no reasonable factual basis for distinguishing sons from daughters.

p. 9

Legal principles established

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  • The Law of Succession Act applies with universal application to intestate estates of persons dying after its commencement, and customary law is excluded except in respect of agricultural land and livestock in districts specified by the Minister; Uasin Gishu is not such a district, so written law governs distribution there.
  • A court's discretion in distributing a deceased's estate must be exercised judicially, on sound legal and factual basis; the possibility that daughters may marry is only one factor and not a determining one.
  • Discrimination between heirs on account of sex in the distribution of an estate is inconsistent with section 82 of the Constitution and with international human rights norms Kenya has ratified, which courts may take into account.
  • Under section 40(1) of the Law of Succession Act a polygamous intestate estate is distributed by houses according to the number of children in each house with the widow as an additional unit, but the Act does not compel strict equality between houses or among individual children; the trial judge retains discretion.

Court orders

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  1. 1.The superior court's distribution of the 192 acres of land is set aside and substituted with a fresh distribution
  2. 2.Two (2) acres for the farm-house commonly occupied by all family members to be held in trust by the joint administrators of the estate
  3. 3.Thirty (30) acres to the first widow, Jane Toroitich Rono
  4. 4.Thirty (30) acres to the second widow, Mary Toroitich Rono
  5. 5.Fourteen decimal four four (14.44) acres to each of the nine (9) children of the deceased
  6. 6.A fresh decree to issue accordingly
  7. 7.The superior court's order on distribution of liabilities between the two houses is left undisturbed
  8. 8.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenyasection 82(1)
  • Constitution of Kenyasection 82(3)
  • Constitution of Kenyasection 82(4)
  • Law of Succession Act, Cap 160section 2(1)
  • Law of Succession Act, Cap 160section 3(2)
  • Law of Succession Act, Cap 160sections 27 and 28
  • Law of Succession Act, Cap 160section 29
  • Law of Succession Act, Cap 160sections 32 and 33
  • Law of Succession Act, Cap 160section 40(1) and (2)
  • Judicature Act, Cap 8section 3(2)
  • Legal Notice No. 93/81commencement of the Law of Succession Act
  • Legal Notice No. 94/81specification of districts for sections 32 and 33 exemption
  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)Article 1
  • African Charter of Human and Peoples' Rights (Banjul Charter)Article 18
  • Universal Declaration of Human Rights (1948)
  • Covenant on Economic, Social and Cultural Rights (1966)
  • Covenant on Civil and Political Rights (1966)
  • Bangalore Principles on the Domestic Application of International Human Rights NormsPrinciple 7

Cases cited (1)

  • Longwe vs. International Hotels
    1993 (4) LRC 221
On appeal from
High Court of Kenya at Eldoret
Probate and Administration Cause No. 40/88
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the High Court (Appellate Jurisdiction Act); the judgment does not expressly cite the provision

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rono v Rono & another (Civil Appeal 66 of 2002) [2005] KECA 326 (KLR)", Case Analysis (2005). Civil Appeal No 66 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/326/eng@2005-04-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.