A bitter inheritance dispute over a 45-acre family estate in
Uasin Gishu has ended with the High Court ordering that the property be shared
equally among 19 beneficiaries of the late Kimutai Lagat.
Justice Reuben Nyakundi, sitting in Eldoret, rejected a
proposed distribution that allocated varying portions of the land to only 10
beneficiaries, leaving several members of the polygamous family out.
The judge ordered the Deputy Registrar to prepare a fresh scheme of distribution based on equal shares, saying every legitimate beneficiary had a right to inherit and could not be discriminated against.
The estate comprises land parcel UASIN GISHU/KAPTAGAT/192, with the deceased survived by one widow and 18 children.
The decision followed a family disagreement over how the
property should be divided between the deceased’s two houses.
Daniel Kimutai, the administrator, had asked the court to
confirm the grant issued to him on June 24, 2025, before the mandatory
six-month period had elapsed.
He argued that their mother, aged over 80, wanted the estate
confirmed so she could know her share and use it for her upkeep.
Daniel proposed distributing the land among 10 beneficiaries, with individual allocations ranging from one acre to seven acres.
His proposal included four-acre portions for several beneficiaries, five acres for his mother and seven acres each for Emmanuel Kipruto Kimutai and Isaac Kiptoo Kimutai.
But Isaac protested the application on behalf of members of
the first house, arguing that the proposed distribution would prejudice the
house and disinherit several family members.
The protestor listed nine beneficiaries from the first house
and 10 from the second, including the surviving widow.
The first house proposed shares ranging from one acre to 9.5
acres, while members of the second house were allocated between 2.5 and four
acres.
The protestor argued that all beneficiaries were entitled to
inherit under the Law of Succession Act and that the estate should be divided
in accordance with Section 40, which governs intestate succession where a
deceased person had married more than once under a system permitting polygamy.
The judge agreed that the estate fell under Section 40 but
stressed that the provision should not be applied mechanically where doing so
would produce an unjust outcome.
Justice Nyakundi said Kenyan courts had repeatedly
recognised that succession in polygamous families is based on the number of
children in each house, with each surviving wife counted as an additional unit.
However, he noted that courts also have discretion to
consider the circumstances of individual families when determining an equitable
distribution.
The judge cited several previous decisions, including Rono v
Rono, in which the Court of Appeal held that while Section 40 provides a
formula, courts may consider fairness and the varying needs of dependants.
He also cited decisions affirming that children cannot be
discriminated against on the basis of gender or the marital status of their
parents.
The court was particularly concerned that some beneficiaries
had been left out of the proposed distribution.
Justice Nyakundi noted that there was no evidence that those
beneficiaries had renounced their rights to inherit their father’s estate.
He said excluding them would violate constitutional
principles of equality and protections contained in the Law of Succession Act.
“Equity is not necessarily equality,” the judge observed,
while explaining the distinction between an identical mathematical division and
an equitable distribution that takes into account the realities of a particular
family.
But in this case, he found the circumstances justified equal
treatment of all 19 beneficiaries.
The judge said inheritance was not merely about transferring
property but was closely linked to economic security and the ability of
families to escape intergenerational poverty.
He further stressed the constitutional protection against
discrimination, particularly discrimination against women based on gender,
birth or marital status.
The judgment took a broader view of customary practices
surrounding inheritance, noting that some traditional norms had historically
excluded daughters from inheriting their parents’ property on the assumption
that they would marry and inherit in their husbands’ families.
Justice Nyakundi said such practices could not prevail where
they conflicted with the constitution.
He emphasised that customary law remains part of the legal
system but must be interpreted through the lens of the 2010 constitution,
particularly its guarantees of equality and property rights.
The court also recognised the importance of protecting the
rights of surviving widows in polygamous families.
Justice Nyakundi said Section 40 must be interpreted in a
manner that protects spouses while ensuring that all beneficiaries receive
their lawful entitlement.
The court found that the proposed schemes presented by the
parties did not adequately address the rights of all beneficiaries.
There were 19 beneficiaries — one widow and 18 children — at
the time of confirmation.
Justice Nyakundi therefore ordered that each beneficiary be
treated as a unit and receive an equitable share consistent with Section 40 of
the Law of Succession Act and Article 27 of the constitution.
He directed the Deputy Registrar to extract a distribution
scheme based on equal shares.
The court ordered that the costs of the judgment be in the cause.
