Woman takes clan to top court in succession row
A woman has sued her family members, accusing them of forcing her to cohabit with a man against her free will.
A woman fighting for a share of her late husband’s estate has moved to the Court of Appeal to challenge a resolution that bars her from the inheritance over ‘adultery’.
In a clan decision backed by the High Court, the woman identified as AMK was disqualified from inheriting her former husband’s property because she had remarried when the man died in May 2004.
However, AMK insisted she was still the legal wife and thus entitled to a stake of the estate. The succession row, which pits AMK against her co-wife, code-named HN, involves four properties in Murang’a and Kiambu counties, a motor cycle and National Social Security Fund (NSSF) dues.
AMK moved to court in 2009 after her co-wife obtained letters of the estate administration in November 2007. She wanted the court to replace the co-wife’s name from the document with hers but this was dismissed by Justice Margaret Muigai, who confirmed HN’s authority over the estate. HN’s three children were also declared beneficiaries.
In the judgment dated October 24, 2018, the court found there was undisputed evidence that the deceased and AMK had separated because during their marriage, she engaged in adultery. She had been found by the deceased with another man known as CK in their home.
The court said another uncontroverted evidence indicated that the matter was deliberated in the clan meeting, where a resolution was reached to the effect that she should be chased away. She later got married to a ‘Mr G’.
“She separated from her husband due to her misconduct in their marriage and the matter was discussed by the clan and it was agreed that it was over between them and she would not get anything from him or his estate. There is evidence on record she remarried after she separated with the deceased,” said Justice Muigai.
A clan elder said the deceased caught AMK with another man in his house. “He was really annoyed and said AMK was never to get anything he owned… it is all for HN and his three children. He took AMK home and told her to take anything she wanted and leave,” the witness said.
After burial, AMK returned to the village and sought elders’ permission to be allowed back to her home, of which they declined for ‘fear of curses’. AMK told court that she married SKW under Kikuyu Customary Law in 1991 and separated in 2000 when HN started cohabiting with her husband. The couple had four children. She also tabled a copy of a letter from Kariua sub-location (Murang’a) chief confirming she was SKW’s widow.
However, HN — who married SKW in 1984 — refuted the testimony and tabled in court the minutes of the clan meeting, which deliberated her co-wife’s misconduct. She added that only two of AMK’s four children were sired by her late husband.
“The objector used to cohabit with my husband between 1991 and 1997 when she deserted the matrimonial home. She remarried almost immediately after deserting him and since then she has never been seen,” testified Ms HN, adding that her ‘co-wife’ did not even attend the burial but resurfaced in January 2009.
While dismissing AMK’s objection, the judge held that although she and her children qualify as dependents, the court could not provide for them as beneficiaries due to her conduct in relation to the deceased.
Section 28 (e) of the Law of Succession Act (Circumstances to be taken into account by court in making order) provides that a court can block a dependent from getting a share based on his or her conduct in relation to the deceased.
AMK has already obtained a temporary relief suspending execution of the certificate of confirmation issued to HN for 90 days. The suspension is to allow her to file the appeal and get appropriate orders of stay from the Court of Appeal.
