Kanji v Gathigi (Civil Appeal 179 of 2018) [2021] KECA 26 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that daughters inherit equally with sons, and step-grandchildren have no automatic claim to a deceased person's land.
What this practically means
#Executive summary
#Key legal issues
#Priority of children of the deceased in intestate succession
The respondent and her sister, being the only children of the deceased who died intestate, ranked first in priority to inherit her land under section 38 of the Law of Succession Act.
The land was registered in the deceased's name, who died intestate in 1981 leaving two daughters and no spouse. Section 38 directs the net intestate estate to devolve equally upon surviving children. The court re-evaluated the evidence on its own mandate as a first appellate court and agreed with the trial judge's findings.
Gender-based disinheritance of married daughters
A daughter cannot be excluded from inheritance merely because she is a woman, married, or has land in her matrimonial home.
The appellant argued that the respondent, being a married woman with land in Meru, could not inherit because the deceased had no male children. The court held this argument had no standing in law, endorsing the principle of gender-neutral equal distribution under section 38 of the Law of Succession Act.
Entitlement of step-grandchildren
A step-grandson who is not a child of the deceased and was not maintained by her has no priority in the distribution of her intestate estate.
The appellant admitted he was a step-grandson of the deceased, being a grandson of the deceased's co-wife Wanjiku. His family had separate land. The court found the objectors were not children of the deceased and did not rank ahead of her surviving daughters.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence and draw its own conclusions, though with due allowance for the trial judge
- Section 38 of the Law of Succession Act enshrines equal distribution of the net intestate estate to surviving children irrespective of gender or marital status
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Muranga
- Not stated
- Jurisdiction invoked
- First appeal under the Court of Appeal Rules, 2010 (Rule 29) - appellate jurisdiction over a High Court decision in a succession matter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanji v Gathigi (Civil Appeal 179 of 2018) [2021] KECA 26 (KLR)", Case Analysis (2021). Not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/26/eng@2021-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.