My four maternal uncles have split their father’s 40-acre land and left out my elderly aunt
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.
What you need to know:
- The Law of Succession Act directs how intestate property can be handled.
- State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status
Dear Eric,
I need guidance on inheritance and land succession when a parent dies without a will.
My maternal grandfather, a Kisii, died last year without a will. One of my aunts never married and remained at home caring for my grandparents. My grandfather had 40 acres of land. My four maternal uncles have already subdivided the land amongst themselves, leaving my aunt with nothing, and she's in her 60s. Her daughter is married but to a poor husband.
Is my aunt entitled to the land?
Dear Nephew of the Kisii,
The supreme law of the land has denounced and banned discrimination, irrespective of the person who may perpetrate it. Article 27 of the Constitution rejects any action, programme, intervention or decision by private persons and the State from any form of discrimination. Clause 4 of this Article provides thus; the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
The Law of Succession Act directs how intestate property can be handled. If a person dies without a will they are said to have “died intestate.”
Section 35 of the Law of Succession Act helps readers and yourself to begin the conversation about your auntie's right to her late father's inheritance. Sub-section (1) proffers that subject to provisions of Section 40, which speaks to the rights and division of property in a polygamous household, an intestate with one surviving spouse and a child or children.
In this case, the surviving spouse shall be entitled to the personal and household effects of the deceased absolutely; and a life interest in the whole residue of the net intestate estate. The law speaks about the children and does not segregate in terms of sex, gender, or marital status.
In light of your aunty’s position, the succession law states that she should be part of the inheritance. The Constitution’s Article 27, in Clause (3), asserts that women and men have the right to equal treatment, including equal opportunities in political, economic, cultural, and social spheres. It does not matter that your uncles have divided the land unto themselves without their sister's share. They have likely done this based on the Kisii culture, besides perpetuating the entrenched masculinity that continues to oppress women and girl child.
The Constitution rejects any other law, including customary, that conflicts with it. Article 2 Clause (4) provides that any law, including customary, inconsistent with this Constitution is void and any act or omission in contravention of this Constitution is invalid. Further, in Clause 1 of Article 27, the Constitution states that every person is equal before the law and has the right to equal protection and benefit of the law.
The aforementioned provisions have been applied in several cases before the Kenyan courts. First, you are in a position to help your aunty by approaching the Court on the strength of Article 22 Clause (1) and (2), which gives you the right to institute court proceedings for your own or another person's interest, claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. In this case, you may begin by challenging the process of attaining grant letters of administration intestate to ensure that your aunt's interests and rights are provided.
The Succession Cause No. 12 of 2019, in re Estate of the Late Epharus Nyambura Nduati (deceased), the High Court revoked the grant of letters of administration issued to Caroline Wanjiku Nduati and Paul N. Nduati, citing three reasons.
First, the respondents had obtained the grants that were defective in substance; second, the grant was fraudulently obtained and it was obtained using an untrue allegation. Further case law was established in the decision of Justice Kalpana Rawal in Re the Estate of Lerionka Ole Ntutu (deceased) of 2008, where it ruled that daughters had a right to inherit their late father’s estate.
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