In the Matter of the Estate of the late Benjamin Kiprono Soi alias Benjamin K. Soi alias Benjamin Kiprono Arap Soi
The bottom line
#Customary laws cannot override the Constitution; daughters and grandchildren must be included in estate distribution under Kenyan law.
What this practically means
#Executive summary
#Key legal issues
#Whether Kipsigis custom excluding daughters from inheritance could govern distribution
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
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.
Whether the proposed mode of distribution was discriminatory
Yes - the mode catered only for widows and sons, excluding daughters and the deceased daughter's children, amounting to a high degree of discrimination
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.
Legal principles established
#- 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
#- 1.The Protest is allowed and the mode of distribution presented by the Petitioners/Administrators is struck out
- 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.A provision must be made for the children of the deceased sister
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.