Johannes Mbugua Muchuku v Lois Wangui Muchuku & 6 others [2016] KECA 391 (KLR)

Section 2(1) and (2) of the Act give it universal application to all cases of intestate succession of persons dying after its commencement. Section 35, read with sections 41 and 42, governs distribution where there is a surviving spouse and children, and makes no discrimination based on sex. Counsel for the respondents also pointed out that Nyandarua is not among the gazetted districts where customary law applies to agricultural land and livestock, and the appellant pointed to no will excluding daughters. The High Court's application of sections 35, 41 and 42 was therefore correct.

The appellant's replying affidavit asserted that land already given to the daughters left them no claim to the residue. The Court held the contrary: section 42 provides that property paid, given or settled to or for the benefit of a child during the intestate's lifetime shall be taken into account in determining the share of the net intestate estate finally accruing to that child. The Court fully adopted the reasoning in Samuel Maina Mwangi & 2 others v Muthoni Kagiri that land given to children is taken into account in distribution, and held the learned Judge correctly construed and applied section 42.

The appellant argued that the events and pleadings predated the 2010 Constitution and that international law is subservient to municipal law. The respondents answered that Article 27 was properly invoked as the Judge was enforcing rights already crystallised under the Law of Succession Act, and that the mention of international conventions was inconsequential since the record shows the Judge relied on the Act's provisions. The Court endorsed the Rono v Rono reasoning that customary law is subject to the Constitution, which outlaws discriminatory laws, and that international instruments prohibiting sex discrimination may inform distribution. The High Court's approach was affirmed.