A court has rejected the traditional notion that being the only son in a family gives one sole control over the parent’s estate, reaffirming that sons and daughters have equal standing under succession law.
The Magistrate’s Court said the succession law does not recognise a superior entitlement to administer an estate based on gender, with a male child having no greater claim than a female child simply because he is a son.
“The law does not recognise a superior entitlement on account of being a male child as opposed to a female child,” said Malaba Resident Magistrate Antoinette Ogange Zowade.
The court made the ruling while rejecting Samwel Gitau’s bid to become the sole administrator of his father Grishom Kitai’s estate on grounds that he was the only male child.
Mr Gitau argued that his status as the only male child entitled him to sole control of the administration, but the court found no legal basis for the claim.
It instead appointed him joint administrator with Joyce Nekesa, saying his participation could be secured without giving him exclusive control of the estate.
The succession case had remained stalled after disagreements over administration, despite attempts to settle the dispute at clan level.
Mr Gitau opposed an application petitioner to appoint him as co-administrator of the estate. He argued that, as the male child and only son, he should instead be appointed the sole administrator.
He also told the magistrate that neither he nor his nephew had been involved in the succession proceedings previously undertaken before the court.
But the magistrate rejected the claim that being male created a special entitlement, saying the statutory order of preference does not give any beneficiary an automatic right to administer an estate.
The magistrate relied on Section 66 of the Law of Succession Act, which gives the court final discretion over who receives a grant, guided by the best interests of all concerned.
The court said the statutory order of preference is only a general guide and “does not confer an automatic right upon any particular beneficiary to administer an estate.”
Section 38 of the Act, the court noted, provides that where a person dies without a spouse but leaves children, the estate passes to the surviving child or is shared equally among the surviving children.
That meant Mr Gitau’s status as the only son could not give him exclusive authority over the estate. The court said that being the first child or son did not give a beneficiary seniority in administration.
“I have nevertheless taken seriously the objector’s contention that he has not been involved in the process undertaken by the current administrator,” the magistrate said, ordering joint administration.
The court said this would bring Mr Gitau directly into managing the estate while preventing the dispute from holding it hostage.
“Both administrators are fiduciaries of the estate and are required to act in the interest of all beneficiaries,” the court said.
The parties had previously sought time to resolve the disagreement through clan discussions and were later referred to mediation. However, the court found no evidence of meaningful participation in mediation.
“The estate, beneficiaries and the administration of the estate cannot reasonably be left in abeyance indefinitely merely because the parties have been unable to agree on who should administer it,” the magistrate said.
The court ordered the joint administrators to file summons for confirmation of grant within 30 days and take steps to progress the estate.
Failure to comply without reasonable cause could lead to revocation of the grant, the court warned. The parties may still pursue mediation, but it cannot stop the court’s deadlines.
The case will return to court on October 7, 2026, to assess compliance and receive further directions.
