Parliament should consider amending the Law of Succession Act to align it with the constitution, a judge has said.
In a ruling delivered last week, Justice Reuben Nyakundi noted that the Act was enacted in 1981, making it necessary to review it to establish whether its provisions are consistent with the Constitution.
The judge said there was also a need for feedback from the legal system, which interprets and applies the Act after handling hundreds of succession cases across the country.
“What is interesting is that 15 years down the line from the promulgation of our new constitution, there is still legal tension between customary law and the imperatives of the constitution. In essence, the application of customary law of male patriarchal and or primogeniture is a violation of the constitution,” said the judge.
He added that the country requires a complete intergenerational paradigm shift and a change in cultural mindset if it is to achieve full equality and non-discrimination in inheritance rights.
According to the court, such a review would help determine the sustainability of the Act in delivering real justice to Kenyans and prevent the injustice of succession cases being litigated in court for years, thereby limiting access to fundamental property rights for legitimate heirs to estates.
Justice Reuben Nyakundi.
Photo credit: Jared Nyataya | Nation Media Group
Justice Nyakundi further observed that despite the new constitutional dispensation and the Bill of Rights—viewed in their historical and constitutional context—patriarchal assumptions, where the male gender is seen as the natural protector, guarantor, sustainer, provider, and custodian of family property, remain prevalent, particularly in inheritance matters.
“If then to some citizens of the Republic the Law of Succession does not answer their aspirations and vision of the law in inheritance, maybe the time has come for them to approach the National Assembly to enact the Customary Law Act to harmonize and codify certain customs and culture to be recognized and protected,” said the judge.
However, he emphasised that any such changes must be consistent with the constitutional values enshrined in Article 10 and other related provisions of the Constitution, including the fundamental human rights captured in the Bill of Rights.
The court noted that many succession disputes are motivated by attempts to deny inheritance rights to some family members so that others can enjoy the fruits of property acquired by deceased parents.
Justice Nyakundi said there are numerous landmark cases that have addressed conflicts between discriminatory customary inheritance laws—such as patriarchal systems or male primogeniture—and constitutional guarantees of equality and non-discrimination.
The remarks were made in a succession dispute involving the estate of the late Andrea Chebos Maiyo, a case that has been in court for nearly two decades.
Mr Maiyo had two wives—the first of whom has since died—and the court identified 15 beneficiaries to the estate.
The patriarch left behind a 90-acre parcel of land in Kipsomba, Uasin Gishu County, valued at Sh180 million. After hearing the case, the court subdivided the land among the 15 beneficiaries, with the first house receiving a larger share of 53 acres due to its higher number of beneficiaries.
However, despite agreeing to the distribution, Mrs Peris Kobilo Maiyo later returned to court seeking a review of the decision.
She claimed that her daughters had planned to evict her from the portion of land where she had lived for years and carried out developments.
Her daughters opposed the application, stating that the administration of the estate had been finalised following the issuance of a confirmed grant in September last year.
They further alleged that their mother had failed in her duties as an administrator and was now pursuing her personal interests.
The daughters also claimed that her dissatisfaction stemmed from a desire to share their 35-acre portion with their brother.
The court dismissed the application, stating that Mrs Maiyo was attempting to reopen and reconfigure a distribution that had already been conclusively determined.
“Such a course, if permitted, would not only prejudice the rights of the other beneficiaries but would also undermine the cumulative nature of succession rights, where the entitlement of one beneficiary cannot be isolated and advanced at the expense of the rest once distribution has been lawfully settled,” said the court.
The court added that the estate had been distributed in a manner that recognised all beneficiaries, including daughters, in conformity with the constitution and the Law of Succession Act.
