I read your article recently on whether women have a right to inherit their parent’s property with great interest. I have a similar case.
I am the firstborn in a family of seven - five sisters and one brother. Our late parents left us a house and farmland in Lambwe Valley, Homa Bay County. After my mother died in 2021, our brother became hostile and even chased one of my sisters from the family house. When my sister, who lives in the UK, came, as she could not come for the burial due to lockdown, he threatened us with dire consequences if we went to the house, but we braved on as my sister was grieving. How can all of us have a share of our parents’ land?
The rights of equity and equality of men and women are espoused in Chapter 4 of the Constitution. Article 27 (1) equalises every person, irrespective of sex or gender. This legitimises common cultural practice amongst many Kenyan communities, where a girl-child is considered less significant in family setups.
Clauses 4 and 5 describe all possible parameters of inclusion. Clause 4 commands the State not to prejudice any person directly or indirectly on grounds such as race, sex, pregnancy, marital and health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, etc.
However, Clause 5 binds people against discriminating against each other following such grounds.
The Constitution and the Law of Succession Act are the pillars that protect your rights. Just like sons, daughters are equally entitled to inherit their deceased parent’s estate. Articles 27 and 40 of the Constitution require the State to have laws that prevent arbitrary deprivation of property or interference with any property interests. This means that no one can be denied or restricted from enjoying any right based on the grounds mentioned in Article 27 Clause 4. This legal framework supports your claim to an equal share of the deceased’s estate.
Section 34 of the Law of Succession Act recognises the importance of fairness while administrating a deceased person’s estate. It addresses the rights of the dependants, especially where there is no valid will. This is strengthened by Section 38, which provides where an intestate has left a surviving child or children but no spouse.
The net intestate shall, subject to the provisions of Sections 41 and 42, devolve upon the surviving child if there be only one, or shall be equally divided among the surviving children. The law emphasises equal division and does not mention surviving children’s gender, sex, marital, wealth, or poverty status.
Through legal representation, you have the right to seek the Court’s intervention, which is mandatory in inheritance matters, even if there is a valid, uncontested will. This can be done through an application to seek a grant of representation as provided in Section 51 of the Law of Succession Act or by contesting for inclusion into a petition of another person, likely your brother, who may be seeking to represent the family on estate matters. The Court, before confirming any grants, as alluded to in Section 77 (1-d), will ensure the respective identities and shares of all persons beneficially entitled. Once confirmed, the grant will specify all persons and their respective shares, ensuring a fair distribution of the estate.
Meanwhile, as you seek to know whether the process of grant of letters of administration on succeeding your late father’s estate has commenced, your sisters may wish to sue the brother based on Section 45 of the Law of Succession Act, claiming his intermeddling with the deceased person’s property. It provides that no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person without authority.
Such a person will be guilty of an offense attracting a Sh10,000 fine or a year imprisonment and subjected to both sometimes. Besides, there is an opportunity to invite alternative dispute resolution as given in Article 159 Clause 2 paragraph (c) and engage in an out-of-court estate settling process. If this works, then the same can be taken through the court process for registration and legitimacy through a probate process. To assuage your fears, refer to the case of Rono v. Rono, 2005, where the daughters of the deceased were bequeathed land inheritance.
