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Case Brief · caselaw.co.ke
High CourtPartially Allowed

In the Matter of the Estate of the late Benjamin Kiprono Soi alias Benjamin K. Soi alias Benjamin Kiprono Arap Soi

High Court of Kenya
9 March 2015
1,840 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Customary laws cannot override the Constitution; daughters and grandchildren must be included in estate distribution under Kenyan law.

What this practically means

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Executive summary

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This was a Protest against a proposed mode of distribution in a confirmation of grant application concerning the intestate estate of Benjamin Kiprono Soi, who died on 25th June 2010 survived by three widows, twelve sons and thirteen daughters, including a deceased daughter survived by three children. Letters of administration had issued on 13th November 2012 to Samwel Rono, Reuben Rono and Geoffrey Rono. Their proposed distribution catered only for the widows and sons, in line with Kipsigis custom under which daughters receive nothing beyond a heifer (here Shs. 10,000 each in lieu). The Protestors, daughters of the deceased, sought three acres each. The Petitioners invoked Sections 32 and 33 of the Law of Succession Act and Kipsigis customary law, arguing Kericho custom should govern. The court held the estate was governed by the Act since the deceased died after it became operational; Sections 32 and 33 apply only to listed districts, which exclude Kericho; and any applicable custom must not be repugnant to justice and morality or inconsistent with written law. Article 27 of the Constitution prohibits discrimination on grounds of sex and marital status, and Section 40(1) refers to children without reference to sex. The Protest was allowed and the proposed mode of distribution struck out. The court declined to effect distribution itself pending a full inventory of assets and an account of proceeds from two plots sold without authority, directing the family to agree a non-discriminatory mode of distribution, with provision for the deceased daughter's children, for mention on 7th May 2015, costs reserved.

Key legal issues

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01

Whether Kipsigis custom excluding daughters from inheritance could govern distribution

Holding

No - the estate is governed by the Law of Succession Act since the deceased died in 2010 when the Act was operational, and custom cannot override the constitutional guarantee of equality

Reasoning

The deceased died on 25th June 2010 when the Act was operational, so his estate falls under the Act. Sections 32 and 33 exclude only specified districts from Part V, and Kericho District is not listed, so Kipsigis custom does not apply. Even applicable custom must not be repugnant to justice and morality or inconsistent with written law, and Article 27 forbids discrimination on grounds of sex or marital status.

p. 4
02

Whether the proposed mode of distribution was discriminatory

Holding

Yes - the mode catered only for widows and sons, excluding daughters and the deceased daughter's children, amounting to a high degree of discrimination

Reasoning

Paragraph 6 of the administrators' supporting affidavit showed distribution only to widows and sons. The daughters and the children of the deceased daughter Margaret Chepkemoi were not catered for at all. Section 40(1) of the Act speaks of children without reference to sex, and Article 27 of the Constitution prohibits discrimination on grounds including sex, marital status and birth.

p. 3

Legal principles established

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  • Customary law that disinherits daughters is inapplicable where the estate is governed by the Law of Succession Act, and any custom must not be repugnant to justice and morality or inconsistent with written law
  • Sections 32 and 33 of the Law of Succession Act apply only to the districts expressly listed, and Kericho District is not among them

Court orders

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  1. 1.The Protest is allowed and the mode of distribution presented by the Petitioners/Administrators is struck out
  2. 2.The administrators are given an opportunity to agree with the widows, sons and daughters on an acceptable mode of distribution without regard to gender/sex
  3. 3.A provision must be made for the children of the deceased sister
  4. 4.A full inventory of the estate assets plus an account of the proceeds of the sale of two plots must be filed together with the agreed mode of distribution
  5. 5.Mention on 7th May, 2015 to confirm compliance; failing consent, the court will effect the distribution; costs to be addressed on the mention date
Jurisdiction invoked
Law of Succession Act (Cap 160) - confirmation of grant of letters of administration

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, "In the Matter of the Estate of the late Benjamin Kiprono Soi alias Benjamin K. Soi alias Benjamin Kiprono Arap Soi", Case Analysis (2015). . Source: 

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