Land Excluded from Equal Inheritance

Under Kenya’s Succession Law, intestate succession rules provide that a spouse and child or children, are entitled to the personal and household effects of the deceased absolutely and a life interest in the whole residue of the net intestate estate. In the event that the surviving spouse dies, or, in case of a widow if she remarries, then the whole residue of the net estate is equally divided among the surviving children. If the deceased leaves one spouse and no children, in addition to the personal and household effects and a life interest, the surviving spouse is entitled to twenty percent of the residue of the net estate. Female and male children inherit equally. However, agricultural land is specifically excluded from the rules of intestate succession in 12 districts, and instead tribal or customary law control inheritance.

However, In re Estate of Lerionka Ole Ntutu (Deceased), [2008] eKLR, High Court of Kenya at Nairobi Family Division, Succession Cause No. 1263 of 2000, holds that “even if the provisions of Section 32 [of the Succession Act] do apply to Uasin Gishu area and even if Masai customary law would be applicable to the estate, the customary law which shall abrogate the right of daughters to inherit the estate of a father cannot be applicable as it shall be repugnant to justice and morality.  (Section 3(2) of the Judicature Act).”¹ Whether the court would rule similarly in the case of a widow is not certain, but the precedent is valuable.