A judge has rejected a man’s bid to block his sisters from inheriting their father’s vast property in Kakamega County.
The man, Mr Stanley Shilenje Namayi, had four wives and 43 children - 22 sons and 21 daughters.
Mr Shilenje died on March 14, 2015, and his family has been fighting over his vast wealth in court, which includes numerous parcels of land.
One of his sons, Rustus Namayi, wanted to disinherit his sisters, arguing that according to their customs, girls were not entitled to inheritance.
He instead presented his proposed distribution, saying each of the 22 sons should get between 4 to 4.5 acres of land and an equal share of other assets, including money in the bank.
The assets are listed as Butsotso/Ingotse/8, 46, 83, 86, 429, 618, 829, 830, 1020, 1291, 1324, 1439 and 2753, and South Kabras/Lukume/1067 and 1199.
There is also a plot number 19 at Lukume Market, and land next to Oronje and at Osiko, whose registration details are not given. The court heard that some of the land had sugarcane plantations.
Money in bank accounts with Equity Bank, Kenya Commercial Bank and National Bank of Kenya, car registration number KAX 767A and a motorcycle are other assets listed in court papers as available for distribution.
But Justice WM Musyoka defended the entitlement of the daughters, saying the law and the Constitution allows them to inherit from the estates of their dead parents.
“I heard it from Rustus Namanyi, that according to his customs, daughters are not entitled to inherit. That position belongs to a bygone era. Rustus Namanyi lives in the past,” Justice Musyoka ruled.
The petition for distribution of the estate had been filed on April 1 2016 by three of the widows, Grace, the second wife, Jane, the third, and Fann, the fourth wife, as well as Mr Namanyi. The first wife was deceased. The four were granted letters of administration on September 6, 2016. The matter before the judge was confirmation of the grant dated March 13, 2017.
However, on March 13 2017, Mr Namanyi had filed another affidavit disclosing that his father had four wives. The other three widows also acknowledged their co-wife. In the document, Mr Namanyi also sought to group Mr Shilenje’s 21 sons according to their respective houses.
Mr Namanyi filed a further affidavit, sworn on 9th October 2017, whose effect was to revise the distribution of the property so that specific land was allocated to specific individuals.
But Ms Fann protested this, telling the court that the patriarch had allocated each house its own portion of land. She proposed that everyone remain on the portions they occupied.
Another co-wife, Ms Grace, however, contradicted her co-wife, saying their husband had only allocated land to her and the first wife by the time of his death.
Mr Shilenje’s brother, Jonathan Namai, backed this position, saying the two widows and some children had got their inheritance.
He proposed that the children allocated land ought to remain on the portions given to them, and it was to those not given land that the court was to distribute. He argued that distribution ought not to be equal.
Rustus Namayi, elder son of the late Stanley Namayi at his Muluanda village Navakholo in Kakamega county on July 25, 2023. A judge rejected his bid to block his sisters from inheriting his father's wealth.
Photo credit: Isaac Wale | Nation Media Group
Mr Namai also rejected Mr Namanyi’s proposal, arguing it would lead to some of the children being uprooted from their land.
Mr Namanyi acknowledged his father had shown some family members land on which to settle on, but insisted he had not distributed the land. He also insisted that his father gave only him a title deed.
“The parties have not agreed on how to distribute the estate. When that happens, the court applies the law strictly, and that is what I am just about to do,” Justice Musyoka as he set out to divide the property.
On distribution of property upon the death of the parent, the judge cited the Law of Succession Act that “treats sons and daughters, male and female offspring, equally, whether married or not.”
“The deceased died intestate, without a will, and therefore distribution has to follow the provisions of the Law of Succession Act on intestacy. He died a polygamist, and therefore, the estate shall be shared out in accordance with section 40, which provides on how the estate of the polygamist is to be distributed,” the judge ruled.
“First, the property is shared out amongst the houses, according to the number of children in each house, treating any surviving widow in a house as an additional unit. After that the share to each house is distributed depending on the configuration of each house,” the judge explained
The judge noted one of Mr Shilenje’s widow and seven children had since died, and in total, all dependents entitled to a share of the property were 46.
Justice Musyoka noted a letter from the chief had provided a comprehensive list of the patriarch’s widows, sons and daughters as well as the assets and debts.
“Perhaps I need to pause here, and say something about the entitlement of daughters, to inherit from estates of their dead parents…The Law of Succession Act was enacted in 1972, and became operational in 1981. Its provisions on distribution, upon intestacy, which are in Part V of the Act, are gender-neutral.
“They treat sons and daughters, male and female offspring, equally, whether married or not. The estate herein is subject to the Law of Succession Act, and not customary law, for the application of customary has been ousted by section 2(1) of the Act. Secondly, Kenya ushered in a new constitutional dispensation, in 2010, when a new Constitution was promulgated. Article 27 of the Constitution outlaws discrimination of any person based on gender. It also commands that women be treated equally in all spheres of life, and that includes succession,” the ruled.
The court also rejected an attempt by one of the parties to designate a brother of the deceased as the person entitled to distribute the estate.
“I have indicated above, that the estate herein is subject to distribution under the Law of Succession Act. Under the Law, the person placed in charge of the property of a dead person is the person known as the administrator. That person is appointed by the court. The brother of the deceased was not appointed by the court to administer this estate.
“He has no authority to approach the court to ask it to distribute the estate. Under the Law of Succession Act, the estate of a dead person can only be distributed following orders made by a court under section 71,” the judge ruled.
The judge warned that an attempt by any party to distribute the property without lawful authority would amount to a crime, according to section 45 of the Act.
In his final orders, the judge confirmed the grant made to Mr Shilenje’s son Mr Namanyi, and his widows Grace, Fann and Jane dated 6th September 2016.
“The share due to any child of the deceased who is dead shall be taken by his or her children, including daughters, equally, in terms of Section 41 of the Law of Succession Act,” Justice Musyoka ordered.
He further ordered that Plot No 19 Lukume shall be sold, and the proceeds from the sale used to foot the expenses for the administration of the estate.
The matter will be mentioned after six months when the administrators of the estate are expected to have completed the administration process.
