The Environment and Land Court in Nyeri has given a landmark ruling allowing married women to inherit their father’s estate. Reality is now sinking that the tradition of locking out daughters from inheriting their parents’ property has been overtaken by events.
The decision was made while Justice Lucy Waithaka was delivering a ruling on the distribution of the estate of Mr Ibrahim Wathuta Mbaci, who was polygamous. She asserted that her verdict was based on Section 29 of the Law of Succession. According to that section, the dependant of an estate is: “Wife or wives, or former wives or wives, and the children of the deceased, whether or not maintained by the deceased immediately prior to his death.”
Further, the Law of Succession Act section 35 provides that “Where an intestate has left a surviving child or children but no spouse, the net intestate shall… devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
Article 27 of the Constitution on the other hand prohibits discrimination on the basis of sex. In her proposed mode of distributing the estate, the deceased second wife, Ms Mary Wangui Wathuta said her four step daughters were married and were therefore not entitled to benefit.
Before the 2010 Constitution was enacted, the courts would consider the traditions of the litigants and often sided with customary law. But, under the new laws, a child is a child, whether married or not, and is entitled to the parents’ property. In the case at hand, the judge noted that Mr Mbaci’s second wife, Ms Mary WanguiWathuta, had unfairly failed to include the married daughters of the first wife in the sharing of their father’s estate.
As expected, the ruling has elicited varied and sharp reactions from various Kenyans given that many communities in the country are deeply entrenched in the traditional belief that sons are the sole inheritors of their father’s estate.