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Case Brief · caselaw.co.ke
High CourtPartially Allowed· [2019] KEHC 10630 (KLR)

In the Matter of the Estate of the Deceased (Confirmation of Grant - Protest by Lydia Muthoni Daniel)

High Court of Kenya
15 January 2019
1,875 words in judgment
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The bottom line

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Married daughters inherit equally with the widow, and property given to children during life is usually deducted from the final estate.

What this practically means

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Executive summary

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This is a first-instance High Court succession ruling at Embu determining a protest to a proposed distribution of an intestate polygamous estate. The applicant (Mary Wambeti Edward, a daughter of the deceased) and the protestor (Lydia Muthoni Daniel, the surviving widow and second wife) are co-administrators. The court applied Section 40 of the Law of Succession Act, under which the residue of a polygamous intestate estate is divided among houses according to the number of children, with the surviving widow added as an additional unit. Section 42 was applied to exclude the four sons who each received 1½ acres during the deceased's lifetime, holding they had been catered for and showed no interest in the cause. The court rejected the protestor's argument that married daughters cannot inherit, holding the law does not discriminate between married and unmarried children. Five grandchildren were held not to be direct heirs, as their parents are alive and identified as heirs, following the Veronica Njoki Wakageto authority. The proposed heir Gerald Mbogo Njagi, a son-in-law, was excluded for lack of evidence and because a son-in-law is not recognised as an heir unless claiming his deceased wife's share. The protestor's claim to exclusive entitlement to the five plots failed for want of documentary evidence of an alleged sale. The court distributed the five plots among the widow and seven daughters and directed that a certificate of confirmation issue accordingly. No costs order was made.

Key legal issues

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01

Entitlement of married daughters to inherit

Holding

Married and unmarried daughters are equally entitled to inherit from their deceased father.

Reasoning

The protestor argued the daughters, being married, should not inherit. The court held the law does not discriminate between married and unmarried children, and the daughters inherit equally with the surviving widow under Section 40 of the Law of Succession Act.

p. 3
02

Exclusion of sons already provided for during the deceased's lifetime

Holding

The four sons who each received 1½ acres during the deceased's lifetime are catered for and are not heirs as regards the remaining assets.

Reasoning

Section 42 requires inter vivos gifts to be taken into account. The sons received the bulk of the deceased's land, leaving only five small plots for the numerous remaining beneficiaries; none of the sons showed interest in the cause.

p. 3
03

Status of grandchildren as heirs

Holding

Grandchildren are not direct heirs of an intestate grandparent unless taking the share of their deceased parent.

Reasoning

Relying on the estate of Veronica Njoki Wakageto, the court held grandchildren inherit indirectly through their parents; they step into the shoes of a deceased parent only. Here all parents of the five grandchildren are alive and identified as heirs.

p. 3
04

Status of a son-in-law as heir

Holding

A son-in-law is not recognised as an heir unless claiming the share of his deceased wife.

Reasoning

The applicant claimed Gerald Mbogo Njagi was given land as a reward for caring for the deceased, but produced no evidence. The court found no basis in law or fact for his inclusion as an heir.

p. 4
05

Protestor's exclusive claim to the five plots

Holding

The protestor's claim that the 1½ acres subdivided into five plots was her share alone failed for lack of documentary evidence.

Reasoning

The applicant alleged the deceased had sold the protestor's land to buy her other land; the protestor denied this. The court found the applicant produced no documentary evidence of any such sale, and the widow inherits equally with the daughters under Section 40.

p. 2

Legal principles established

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  • Under Section 40 of the Law of Succession Act, in a polygamous intestacy the residue is divided among houses according to the number of children in each house, with a surviving widow added as an additional unit.
  • Property given to a child, grandchild or house during the deceased's lifetime is taken into account in determining the share of the net intestate estate (Section 42).
  • Grandchildren have no direct right to inherit a grandparent who dies intestate after 1st July 1981 unless their own parent is dead, in which case they step into the parent's shoes.

Court orders

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  1. 1.Distribution of the estate: Ngandori/Kirigi/6418 to Lydia Muthoni Daniel; Ngandori/Kirigi/6421 to Mary Wambeti Edward; Ngandori/Kirigi/6422 to Anne Njura Mbogo and Tabitha Rwamba; Ngandori/Kirigi/6423 to Margaret Gaturi Evanson and Jane Rwamba; Ngandori/Kirigi/6424 to Madrin Wanja Moses and Pauline Gikuu
  2. 2.A certificate of confirmation to issue in the foregoing terms

Authorities

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Legislation

  • Law of Succession ActSection 40
  • Law of Succession ActSection 42
  • Law of Succession ActSections 35 to 38
  • Law of Succession ActSections 26 and 35
  • Law of Succession ActPart V

Cases cited (1)

  • In the matter of the estate of Veronica Njoki Wakageto (Deceased)
    [2013] eKLR

    Grandchildren have no direct right to inherit intestate grandparents after 1st July 1981 unless their parent is dead.

Jurisdiction invoked
Law of Succession Act (succession cause - confirmation of grant and determination of protest)

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 Deceased (Confirmation of Grant - Protest by Lydia Muthoni Daniel)", Case Analysis (2019). . Source: 

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