Is this the end of mpango wa kando? What new law means for modern Kenyan families

These conversations often times rear their ugly heads at burials and subsequent legal cases, where the secret lovers drag the goat wives to court as they demanded their share of the man's property. So serious is the issue, that obituaries would carry different versions of the deceased depending on which woman or family has placed it. 

Then on November 17, the President assented to the Law of Succession (Amendment) Bill, 2019, sending shock waves to Mpango wa Kandos countrywide. The Bill sought to amend the definition of the word dependant to lockout "illegitimate" spouses from inheriting the property of a deceased person. In the new law, a dependant is defined as "the spouse and children of the deceased, whether or not maintained by the deceased immediately before his death".

Agatha Kitheka is one such woman who is uneasy. In 2016, and at 24, she started going out with a rich married 'sponsor', ensnared by the good life he was going to afford her. 

She was not ready to get married, leave alone be a second wife, or have children. But she wanted the top dollar, luxurious lifestyle, and expensive dinner dates in exquisite getaway holidays that the man was offering. She agreed to be his secret lover in exchange for the Soft life. 

"I told him that I wanted to be his unofficial wife. I moved houses, got a car, and got a sumptuous monthly stipend," she says. 

Agatha had her cake and gobbled it all down. 'I could still quit and say I am single,' the now 29-year-old woman reasoned then. But there is a BUT. She developed feelings for her wealthy sponsor. 

Then, when in November 2021 the law on Succession was read out, her life hit a dilemma. Agatha now feels that she has invested too much emotion in the relationship to quit. 

"I am afraid. I love him. I have become used to the good life. I wouldn't want to lose out," she says. Agatha is now desperate to have a baby with her rich sponsor. 

"I said I was not ready when he first asked to have a baby with me two years ago. But now I am desperate to have one by him," she says. "I want a share of his life and property. But I am still afraid I might lose out." 

The new law

According to the new law, a dependant is defined as the spouse and children of the deceased, whether or not maintained by the deceased immediately before his death. According to Sabaya Sheila, an Advocate of the High Court who specialises in family law, there is the likelihood that a new marital trend will emerge from this law. 

"We are likely to see a spike in instances where more people married under customary law will be filing petitions to annul subsequent monogamous marriages which have been contracted by their spouses to mipango ya kando," she says.

"Ultimately, this amendment will jolt people into seeking to have all their marriages registered."

This implies that for mpango wa kandos like Agatha, having a biological child will only secure her child's rights but may not give her the right to inherit from her sponsor unless she is legally or customarily married as the second wife. 

Sabaya says that with the new law, the real winners will be legally married spouses whose work will only be to preserve the registration status of their marriages, even when their partners venture outside the marital bed. This is what Maureen Ayinga has set out to do. Together with her husband, they have a net worth of Sh80 million, which Maureen says she can never relinquish to her husband's side chick. 

"My husband has been keeping a mpango in Lang'ata Nairobi for the last two years. He pays her rent and monthly bills," says Maureen, 40. The mother of four says that she is not bothered by the relationship as long as her marital registration is intact and her share of matrimonial property is safe. 

"Condoms are mandatory between us. I don't care who he sleeps with. But I am not quitting this marriage just to see another woman enjoy my sweat," she declares. Her perception implies that with the new law, many marriages may end up being held together by property.

According to Sabaya, dependants in the previous provision included the wife or wives, or former wife or wives, and the children of a deceased man, whether or not they were maintained by the deceased before his death, as dependents. The new amendment now defines a dependent as spouse or spouses and the children of the deceased whether or not they were maintained by the deceased man before his death. 

"The definition of spouse is the one provided under the marriage Act. This means that the modern casual arrangements can no longer work upon the death of one partner as the rules of intestacy will require any Applicant to present a certificate of marriage to be allowed to have a spousal claim over any property of the deceased," she says.

What will change now

As a result, Sabaya says that she foresees an increase in divorce cases where the mipangos will convince their wababas to annul their existing registered marriages or ignore the unregistered ones and contract fresh ones with them as a way of securing a share of the men's property. 

This is echoed by Esther Masanyangila, an Advocate of the High Court and the founding and managing partner of Masanyangila & Associates Advocates. Esther says that the Marriage Act 2014 insists that all marriages including customary marriages must be registered. 

The back door entry

However, mpango wa kando could have a back door entry into a man's property if the man sneaks her into his Will. According to Esther, courts are very slow to interfere with Wills. They only do so in the interest of justice. "A Will that provides for all the beneficiaries and also provides for the mpango wa kando is still a valid Will," says Esther. She explains that under the Law of Succession Act Cap 160, only spouses who are legally married under the Marriage Act of 2014, are entitled to a man's estate if he dies intestate (without a Will). 

"If he dies testate (with a Will), and provides for a mpango wa kando in the Will, the side chick will be entitled to her portion of the estate as provided for in the Will in accordance with Section 11 of the Law of Succession Act Cap 160 Laws of Kenya," she says.

There are instances too, when relatives may not be part of a deceased man's estate. Esther says that where a man has died without a Will and left behind an estate, such property cannot be distributed or disposed of without a court order. In addition, this court order should give priority to the registered spouse and children of a deceased man in the administration of the man's property. 

Esther singles out the Nairobi Succession Cause No. 2015 of 2012 in the matter of the Estate of the late Joshua Orwa Ojode which has now been amplified by the new law. "In this matter, the court ruled that where a deceased person is survived by a spouse and child or children, the other relatives are not entitled to a share in the intestate estate of such a person. The spouse and child are entitled to the estate to the exclusion of all other relatives," she says.

Whereas the new law may have been well-intentioned in maintaining the sanctity of the monogamous marital system, it may have ignored the realities of modern marriages and their implications. 

A Consumer Insight 2018 survey on infidelity in Kenya, reported that at least 24 percent of people in relationships date multiple lovers at any given time. Also, according to the Kenya Demographic and Health Survey 2014, about one in every five men in Nairobi aged between 15 and 49 cheats on their partners. This survey found out that having two or more partners is more common among divorced, separated, or widowed women and men. Shockingly though, condom use among those with two or more partners was lowest among married women and men, raising the possibility of having unplanned offspring. However, in the new legal matrix, children are still covered regardless of the nature of sexual interaction they were conceived from.

The case of blended families

As the modern relationship has continued to evolve, blended families are becoming common. That's why one of the emerging concerns among people in unconventional marriages is how stepchildren will be affected by the new law. Take Christine Nyogemo case. The 46-year-old is a single mother of three children and is engaged to a man who is a 53-year-old single father of four. 

"We have agreed to live together as a family. He is a widower in the supermarket retail business while I am in the cereals wholesale business," she says. 

However, she is perturbed at what will happen to their combined wealth in the event of their deaths. "What will happen to the wealth I have built up for my children over the last 20 years?" she poses. "Will his children be entitled to it? Will my children be entitled to a share of his estate?" 

Christine says that she would turn in her grave if her new partner's biological children inherited part of her property then her children are denied part of his estate because they are not biologically his. "I don't have a problem loving his children, but I also don't want property fights and disinheritance which women in my Chama say will become common," she says.

Her fears resonate with those of Teresia Wanjiru. She recently got into a come-we-stay arrangement with a widower who has two grown-up children. "I have three children. He has two. Our children are all aged 18 and above. He works in government while I am a stay-at-home wife and dairy farmer," says Teresia who is 44. 

She is worried that being uneducated, with children that are not her spouse's biological offspring and he being wealthy, her children will not be able to inherit from him. "If he really loves me as he says, he should give my children a share of his property. He should also talk to his children so that they don't disinherit my children," she says. 

The case of step-children

Also, some women in blended families who end up having biological children with the men they marry are anxious that some of their children could be disinherited based on their blood relations. "I married a single father of three. I had two children at the time of marriage in 2018. In 2020, we had our first child together to cement our union. Now I hear that my first two children will be disinherited just because they are not his biological kids because of the new law? How is that fair?" she poses.

But according to Esther, children from men and women who marry can still claim their stepdad's property. "The Law of Succession Act Cap 160, Section 29 provides for stepchildren and also children whom a man has taken in as his own whether related to him by blood or not," she says. 

"This means that any children that a deceased man had taken in will be considered as dependants during succession and will be entitled to a portion of the estate that he left behind." In addition, according to Sabaya, under the new law, children will no longer be required to prove paternity to benefit from their fathers' estates. 

She says that this is actually in line with the proposed amendments to the Children's Act. "The Children (Amendment) Bill, 2020 has introduced amendments which seek to impose unconditional parental responsibility on step-parents who have taken in partners with children from previous marriages or relationships," says Sabaya.

In addition to this, the new law also considers other dependants to a deceased man as including his parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased man had taken as his own. Also, included are brothers, sisters, half-brothers, and half-sisters, who were being maintained by the deceased immediately before his death. 

Without the presence of a Will, anyone else will need to prove they were dependant on the deceased for last two years. Sabaya says that once the effects of the law become evident, Kenyans will need to adapt by embracing the culture of drawing Wills. 

"A properly executed Will is the only road available to individuals who want to have a say in the distribution of their property upon their demise. The flip side is that Kenyan courts are too quick to invalidate Wills especially when legitimate dependants have been left out," she says.

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