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SECTION 40 OF THE KENYAN LAW OF SUCCESSION ACT(CAP 160).
Where a deceased person is polygamous or married in a system of law that recognizes
polygamy and dies without a will, section 40 of the LSA applies. Such distribution will
be made according to the houses/ units.
Section 40 of the Law of Succession Act (Cap.160) of the Laws of Kenya provides for
where an intestate was polygamous. It states as follows;
“where intestate was polygamous
(1) Where an intestate has married more than once under any system
of Law permitting polygamy, his personal and household effects and
the residue of the net intestate estate, shall, in the first instance, be
divided among the houses according to the number of children in each
house, but also adding any wife surviving him as an additional unit to
the number of children.
(2) The distribution of the personal and household effects and the
residue of the net intestate within each house shall then be in
accordance with the rules set out in sections 35 to 38.
If a unit has children and wife, the wife or spouse will be entitled to the household
and personal effects absolutely and a life interest in the residue they hold in trust for
the children. If the house has children only and no spouse, then the estate will be
distributed equally amongst the children. If there are no immediate family members,
distant relatives are allowed to inherit it. There are no benefits conferred on categories
such as the parents-in-law and unmarried partners except in the case where the
deceased left a will. In the case where there are no blood relatives, the estate or
property devolves to the state.
Example
DECEASED PERSON
WIFE A WIFE B
2 CHILDREN 4 CHILDREN
TOTAL UNITS= 3 TOTAL UNITS=5
From the onset, the Section above does not discriminate amongst male or female
children neither does it refer to any customary Law that would purport to discriminate
against wives or daughters or sons from different houses. Secondly it empowers the
Court to distribute to each house in accordance with the number of children. The plight
of a surviving spouse being a widow surfaces in the non-appreciation of what is a “life
interest” and Kenyan courts have defined a life interest as “an interest in real or
personal property measured by the duration of the holder’s or another person’s life”.
The Court’s have held that in distributing an estate, a Court must be equitable. In
the Rono Vs Rono Civil Appeal No.66 of 2002 Waki J.A. stated
inter alia
“More importantly, Section 40 of the Act which applies to the estate
makes provision for distribution of the net estate to the houses
according to the number of the children of each house, but also adding
any wife surviving the deceased as an additional unit to the number of
children. “A house in a polygamous setting is defined in Section 3 of
the Act as a ‘family unit comprising a wife and children of that wife.’
As such, a wife is also treated as a unit of the deceased’s family.
In the Matter of
the Estate of
Benson Ndirangu Mathenge (deceased
) Nakuru HCSC No. 231
of 1998 (Ondeyo J), the deceased was survived by his two widows and their children.
The first widow had four children, while the second widow had six children. The court
stated that the first house was comprised of five units while second had seven units.
The two houses of the deceased combined and looked at in terms of units made up
twelve units. The court distributed the estate to the children and the widows treating
each as a unit. The land available for distribution was forty acres, which was divided
by the court into twelve units. Out of the twelve units, five were given to the first
widow and her four children, while the remaining seven units went to the second
widow and her six children
Further,
In the Matter of the
Estate of Nelson Kimotho Mbiti
(deceased)
HCSC No. 169 of 2000, Koome J directed that the estate of a
polygamist be divided in accordance with the provisions of section 40 of the Act. The
estate was divided into units according to the number of children in each house with
the widows being added as additional units.The same reasoning was also applied by
Judge Ali Roni in
In re Estate of Ainea Masinde Walubengo (Deceased) [2017]
eKLR
stating that
“I am of the view that Section 40 of the Law of Succession Act will
apply to the circumstances of this Case. Meaning that the Court will
distribute the estate of the deceased according to each house taking
into account the number of children in each unit including the
surviving widow.”
Conclusion
The end result is that a widow can enjoy a lifetime of income from a husband’s
property but upon re-marriage or death loses that right absolutely. Where the assets
in issue are land or even shares in a company, the widow would only be entitled to
enjoy the income from the land and dividends since in most cases the asset itself
would belong to the child /children of the deceased.