Daughters too, can inherit property

By  Harold Ayodo

In my view, the law as it is now, it matters not whether a daughter of the deceased is married or not when it comes to consideration of whether she is entitled to inherit her parent’s estate.  Article 60 (f) of the Constitution of Kenya 2010 provides for elimination of gender discrimination in respect of land. The marital status of a daughter is not a basis to deny her the right to inherit her father’s estate...’’ — Lady Justice Mary Kasango (February 17, 2011)

Reality is now sinking that the cultural tradition of locking out daughters from inheriting their parents’ property  is outlawed.

A reader sent an email to this column complaining that daughters of deceased tycoons should be ashamed of fighting for their parents’ property.

The writer was referring to the daughters of the late Starehe MP Gerishon Kirima. He argued that only his sons should claim the estate worth over Sh1 billion.

According to the reader, it is unafrican for single or married daughters to claim the property of their father.

“Daughters have no property rights under our traditions...they should live in areas where they are married and leave inheritance to their brothers,” he argued.

EQUAL RIGHTS

For Lillian Cherono, also a reader, her concerns are whether daughters have rights to claim in court property of their parents.

“I have a friend (a spinster) whose biological father passed on two months ago leaving investments in property in Nairobi and Eldoret,” Cherono wrote.

According to Cherono, disputes over the estate pitting brothers and uncles of her friend have already started.

“Her brothers and uncles told her that she was out of the equation as daughters have no property rights in succession...is this true? What can she do? ,” Cherono asked.

However, even as some communities lock out daughters from inheriting property, the laws have changed.

Since the passing of the new Constitution daughters who moved to court demanding their rights to inherit property of their late parents have emerged victorious.

Even a series of successive judicial precedents set by the Court of Appeal and the High Court are proof that the tides have changed.

Take the recent case of Consolata Ntibuka who challenged her brother’s decision to evict her from her late father’s land at the High Court in Meru.

Lady Justice Mary Kasango who presided over the succession dispute ruled that daughters have a right to inherit their parents’ estate. 

“It does not matter whether a daughter was married or not when considering whether she is entitled to inherit her parent’s estate,” Justice Kasango said.

To refresh memories, the Constitution forbids the State or any person from discriminating on the basis of a person’s marital status.

Article 60 of the supreme law further provides for elimination of gender discrimination in law, customs and practices related to land and property.

Therefore, Articles 27 and 60 of the Constitution clears the air whether married and unmarried daughters have a right to inherit wealth in the family.

Even before passing of the new Constitution, courts invoked the Law of Succession Act to guarantee daughters property rights.

According to Lady Justice Martha Koome when ruling in the case of Priscilla Kamau in 2005, daughters — just like sons — have equal rights to inherit.

 “The law does not distinguish  between the children of a deceased on the basis of their gender or marital status,.” Justice Koome ordered.

NEW DAWN

Fast-forward to 2008. Lady Justice Kalpana Rawal dismissed the application of a Maasai custom that allegedly blocked daughters from inheritance of family property.

The case involved daughters of the late Maasai tycoon Lerionka Ole Ntutu who died without leaving a will on distribution of his estate.

The daughters told the High Court that their brothers planned to exclude them from inheriting the family property.

Justice Rawal overruled the Maasai customary law and applied the Law of Succession Act in favour of the daughters.

“Any tenet of customary law, which would abrogate the right of daughters to inherit the estate of a father cannot be applied,” Justice Rawal ruled.

Even the Court of Appeal recently demonstrated that customs and traditions that lock daughters out of succession have no place in society.

When delivering judgment in the case of Rono verses Rono, Justice Philip Waki ruled that marriage should never be a ground of locking daughters out.

“Arguments that daughters would get married are not a determining factor on distribution of the net estate of a deceased,” Justice Waki ordered.

Justice Waki said courts had a duty to exercise discretion judiciously when it came to distributing estates in dispute.

There was a protracted family dispute over property inheritance as some sons argued that their sisters would be married and move away.

The writer is an Advocate of the High Court of Kenya

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