REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
SUCCESSION APPEAL NO 3 OF 2023
IN THE MATTER OF THE ESTATE OF HEZRON JANIRA ALUNGA (DECEASED)
LENAH KAGEDI JANIRA……….…………………………………..……APPELLANT
VERSUS
NICHOLAS ALUNGA JANIRA………………………………….……..RESPONDENT
(Being an appeal from the Judgment and Decree of Hon R. Ndombi (PM) delivered at Vihiga in the Senior Principal Magistrate’s Court Succession Case No E115 of 2021 on 17 th August 2023)
JUDGMENT
INTRODUCTION
1. In a decision that delivered on 17 th August 2023, the Learned trial Magistrate, Hon R. Ndombi (PM), dismissed the Appellant’s Notice of Motion application dated and filed on 29 th March 2023 wherein the Appellant had objected to the proposed mode of distribution of the deceased’s estate.
2. There was no decision of 10 th August 2023 . The only indication in the file was that the decision was to be delivered on 10 th August 2023. For all purposes and intent, this court concluded that the Appellant was aggrieved with was the said Ruling of 17 th August 2023.
3. Being aggrieved by the said decision, on 31 st August 2023, the Appellant filed a Memorandum of Appeal of even date. She relied on three (3) grounds of appeal.
4. Her Written Submissions were dated 15 th October 2025 and were filed on 27 th October 2025 while those of the Respondent were dated 26 th April 2025 and were also filed on 27 th October 2025. The Judgment herein was based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. Having considered the grounds of appeal and the parties’ Written Submissions, it appeared to this court that the issues that had been placed before it for determination were:-
a. whether the trial court erred in confirming the mode of distribution that was proposed by the Respondent pursuant to family meetings and decisions of elders.
b. whether the distribution of the deceased’s estate adopted by the Trial Court was equitable and lawful under the Law of Succession Act and the Constitution of Kenya, 2010.
6. The Appellant averred that she was occupying one of the houses in the homestead. She prayed sed’s the deceased’s estate be distributed to his children equally in accordance with the Law of Succession Act. All the Grounds of Appeal were dealt with together as they were all related.
7. The Appellant submitted that she was a child within the meaning of Section 29(a) of the Law of Succession Cap 160 (Laws of Kenya) and was, therefore, a lawful beneficiary of the deceased’s estate. She relied on Section 38 of the Law of Succession Act which provided that where no spouse, the net intestate estate would be divided equally among the children of the deceased, whether male or female, married or unmarried.
8. She contended that, being a child of the deceased, she was entitled to an equal share of the estate with the Respondent and that the Trial Court failed to uphold the statutory principle of equality among children of an intestate deceased. She further submitted that the Trial Court improperly relied on family meetings and the views of clan elders in determining the distribution of the estate. She argued that such arrangements could not override the provisions of the Law of Succession Act or the constitutional guarantee of equality under Article 27 of the Constitution. In her view, the arrangement unfairly disadvantaged her as an unmarried daughter of the deceased and amounted to discrimination.
9. She relied on the cases of Rono vs Rono & Another [2005] eKLR , In re Estate of Lerionka Ole Ntutu (Deceased) [2019] eKLR, In re Estate of Solomon Ngatia Kariuki (Deceased) [2008] eKLR, In re Estate of Thiong’o G ĩ thua (Deceased) [2015] eKLR and In re Estate of M’marete M’Ntingia (Deceased) (2019) eKLR to support the proposition that all children of a deceased were to be treated equally, irrespective of gender or marital status, customary practises, community opinions or family arrangements which could not defeat the statutory rights of beneficiaries.
10. She was emphatic that she did not consent to the proposed mode of distribution of the deceased’s estate. She faulted the Trial Court for accepting the Respondent’s assertions on family meetings without establishing if such agreement existed or if she consented to the same. She also challenged the Trial Court’s finding that she was motivated by greed and sought to control the deceased’s funds. She submitted that there was no evidential basis for such a finding and that the court ought to have confined itself to the issues arising from the evidence before it.
11. The Respondent pointed out that the trial court did not adopt his personal proposal but instead approved a mode of distribution that was agreed upon by the beneficiaries after several family meetings. He maintained that the Appellant attended those meetings, participated in the discussions and signed the minutes approving the proposed mode of distribution.
12. He further submitted that the Appellant participated in the succession proceedings, including the filing of the Petition, the gazettement of the Succession Cause and the subdivision of the estate.
13. He asserted that the estate was not limited to the surviving children of the deceased. He contended that some of the deceased’s grandchildren were dependants within the meaning of Section 29(b) of the Law of Succession Act, having been children of deceased’s sons and having been maintained by the deceased before his death.
14. He relied on Sections 27 and 29 of the Law of Succession Act and the case of In Re Estate of Phylis Wasuna Kamau (Deceased) (Succession Cause No 25 of 2019) [2022] KEHC 3286 (KLR) to support his argument that the court had jurisdiction to make provision for dependants.
15. He averred that the allocation of the homestead to him was based on Mmulaga customary practice, which recognised that the surviving or youngest son remained in the family home for purposes of continuity of the family line. He argued that the Trial Court properly considered the evidence of the clan elder in reaching its decision.
16. He placed reliance on the cases of Stephen Mwallyo Mbondo vs County Government of Kilifi [2021] eKLR and Mbogo & Another vs Shah [1968] EA where the court held that an appellate court could interfere with the exercise of a trial court’s discretion if the trial court misdirected itself in some matters and as a result arrived at a discretion that was erroneous or it was manifest that the court had been clearly wrong in the exercise of the judicial discretion which resulted in injustice.
17. He was emphatic that the Appeal herein lacked merit because the Appellant had consented to the mode of distribution and only challenged the same after the estate had been administered. He argued that she could not approbate and reprobate after participating in the succession proceedings and thus urged this court to dismiss the Appeal herein.
18. It was not disputed that the deceased died intestate. The applicable legal framework governing the distribution of the deceased’s estate was Part V of the Law of Succession Act.
19. Section 2(1) of the Law of Succession Act provides that: -
“Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.”
20. The effect of Section 2 of the Law of Succession Act was that intestate estates were primarily governed by the statutory framework established under the Law of Succession Act and that customary practices could only be considered if they were recognised by law and were not inconsistent with the Constitution of Kenya and the written law.
21. It was common ground that the Appellant and the Respondent were children of the deceased. They were, therefore, beneficiaries of the estate by virtue of Section 29(a) of the Law of Succession Act which provides as follows: -
“For the purposes of this Part, "dependant" means—
a. the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
b. such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
c. where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”
22. While children of the deceased fell within the category of dependants under Section 29(a), grandchildren did not automatically inherit merely by reason of their relationship with the deceased. Their entitlement under Section 29(b) depended on proof that they were being maintained by the deceased immediately before his death. They could also only inherit their grandparent’s properties if their parents predeceased their grandfather.
23. Going further, Section 38 of the Law of Succession Act states that: -
“Where intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
24. The above provision established the general principle that, where an intestate deceased left children but no spouse, the estate was required to be equally divided among the surviving children, subject to Sections 41 and 42 of the Law of Succession Act. Although the court could make provision for dependants, such discretion had to be exercised judiciously and within the statutory framework.
25. In line with the case of Rono vs Rono & Another (Supra), daughters were entitled to inherit from their parents’ estates in the same manner as sons. As was held in I n Re Estate of Lerionka Ole Ntutu (Deceased) ( Supra), customary practices could not prevail where they conflicted with statutory and constitutional principles.
26. The court considered the Respondent’s argument that the distribution was founded on family meetings and consent by the beneficiaries. Upon perusing and considering the proceedings of the lower court, the court found that discussions had indeed taken place among family members and clan elders regarding distribution of the estate. However, the existence of such discussions did not, by themselves, confer legality to the distribution adopted by the Trial Court.
27. The duty of a probate court was not merely to record an agreement reached by beneficiaries but to satisfy itself that the proposed mode of distribution complied with the Law of Succession Act. Although beneficiaries could agree on the mode of distribution, such an agreement could not override mandatory statutory provisions or constitutional rights. Indeed, as was stated in the case of In re Estate of Thiong’o G ĩ thua (Deceased) (Supra), family arrangements could not defeat the legal rights of beneficiaries where those arrangements were inconsistent with the Law of Succession Act. Similarly, as was held in In re Estate of Solomon Ngatia Kariuki (Deceased) (Supra), customary practices that discriminated against beneficiaries could not override the statutory provisions governing succession.
28. At the time of confirming a grant under Section 71 of the Law of Succession Act, the probate court was not merely to perform an administrative function but it was required to satisfy itself that the proposed mode of distribution complied with the law. Even where beneficiaries consented to a proposed mode of distribution, the probate court retained the duty to satisfy itself that such consent was lawful and did not amount to an unlawful renunciation of, or discrimination against, the rights of any beneficiary.
29. In this case, what concerned this court was not whether family meetings occurred or whether the family discussed distribution, the question was whether the distribution and/or the process of distribution that was adopted by the Trial Court was one that was permitted by law.
30. Article 27 of the Constitution of Kenya guarantees equality before the law and prohibits discrimination on grounds including sex, marital status and culture. It states as follows: -
“4. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
5. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).”
31. Further, Article 2(4) provides that any law, including customary law, that is inconsistent with the Constitution of Kenya is void to the extent of the inconsistency. It provides as follows-
“Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”
32. Women were also entitled to equal treatment in cultural and social spheres as provided in Article 27(3) of the Constitution of Kenya which states that;;-
“Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”
33. Further, Section 3(2) of the Judicature Act Cap 8 (Laws of Kenya) also mandates that customary practises application to successions matters not be inconsistent with written law or constitutional principles. It stipulates that: -
“The Supreme Court, the Court of Appeal, the High Court, the Environment and Land Court, the Employment and Labour Relations Court and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.”
34. In the present case, the Appellant’s status as an unmarried daughter did not diminish her entitlement to inherit from her father’s estate. Similarly, the Respondent’s status as a son did not confer upon him a superior right to the estate. His reliance on Mmulaga customary practice in support of the allocation of the homestead to him as the surviving son without consent from the other beneficiaries to the deceased’s estate was, therefore, discriminatory, ultra vires to the Constitution of Kenya and in contravention of written law.
35. It was evident from the Ruling of 17 th August 2023 that the grandchildren who benefitted from the estate were orphaned which meant that they stepped into the shoes of their parents who had predeceased the deceased herein. The inclusion of the deceased’s grandchildren on the basis that they were to be dependants was not, in itself, unlawful. However, the court was called upon to exercise caution to ensure that any provision made for dependants under Section 29(b) of the Law of Succession Act did not result in unequal treatment of surviving children contrary to Section 38 of the Law of Succession Act.
36. Notably, in the minutes of 17 th November 2020, the Appellant was indicated as a Complaint (sic) . Although there was no indication that she was given an opportunity to represent her position, she and the Respondent appeared to have agreed to the resolutions of the meeting, forgave each other and shook hands. However, there was no evidence that the Appellant executed the Consent in Form 38 of the Probate and Administration Rules that stipulates that:-
“An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.”
37. There was also no evidence that she executed Form 37 as provided in Rule 40 (8) of the Probate and Administration Rules that states as follows: -
“Where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the registrar before the court by which the grant was issued which may, on receipt of the consent in writing in Form 37 of all dependants or other persons who may be beneficially entitled, allow the application without the attendance of any person; but where an affidavit of protest has been filed or any of the persons beneficially entitled has not consented in writing the court shall order that the matter be set down as soon as may be for directions in chambers on notice in Form 74 to the applicant, the protester and to such other persons as the court thinks fit.”
38. Although the Respondent’s contention regarding the alleged dependants was legally tenable and the family discussions may have taken place, those considerations could not, without proper statutory analysis, justify a mode of distribution that departed from the principles governing intestate succession in terms of procedure and substance without the consent of all beneficiaries to the deceased’s estate. The mode of distribution adopted by the Trial Court could not, therefore, stand.
DISPOSITION
39. For the foregoing reasons, the court found that the Appeal that was dated 31 st August 2023 and lodged on even date was merited. The effect of this is that the Ruling of Hon R. Ndombi (PM) delivered on 17 th August 2023 in Vihiga Principal Magistrate’s Court Succession Cause No E115 of 2021 be and are hereby set aside and/or vacated.
40. The matter be and is hereby remitted to the lower court for fresh consideration of the appropriate mode of distribution in accordance with the Law of Succession Act.
41. Matter to be mentioned before the Head of Station Vihiga on 17 th August 2026 for allocation of the matter for hearing and determination of the mode of distribution to the beneficiaries to the deceased’s estate.
42. Considering that this dispute arose from a family succession process, this court deviated from the general principle that costs follow the events to avoid further acrimony between the family members and hereby directs each party shall bear its own costs of the Appeal herein.
43. It is so ordered.
DATED and SIGNED at VIHIGA this 28 th day of July 2026
J. KAMAU
JUDGE
HCFA NO 3 OF 20232
IN THE HIGH COURT OF KENYA AT VIHIGA
SUCCESSION APPEAL NO 3 OF 2023
IN THE MATTER OF THE ESTATE OF HEZRON JANIRA ALUNGA (DECEASED)
LENAH KAGEDI JANIRA……….…………………………………..……APPELLANT
VERSUS
NICHOLAS ALUNGA JANIRA………………………………….……..RESPONDENT
(Being an appeal from the Judgment and Decree of Hon R. Ndombi (PM) delivered at Vihiga in the Senior Principal Magistrate’s Court Succession Case No E115 of 2021 on 17 th August 2023)
JUDGMENT
INTRODUCTION
1. In a decision that delivered on 17 th August 2023, the Learned trial Magistrate, Hon R. Ndombi (PM), dismissed the Appellant’s Notice of Motion application dated and filed on 29 th March 2023 wherein the Appellant had objected to the proposed mode of distribution of the deceased’s estate.
2. There was no decision of 10 th August 2023 . The only indication in the file was that the decision was to be delivered on 10 th August 2023. For all purposes and intent, this court concluded that the Appellant was aggrieved with was the said Ruling of 17 th August 2023.
3. Being aggrieved by the said decision, on 31 st August 2023, the Appellant filed a Memorandum of Appeal of even date. She relied on three (3) grounds of appeal.
4. Her Written Submissions were dated 15 th October 2025 and were filed on 27 th October 2025 while those of the Respondent were dated 26 th April 2025 and were also filed on 27 th October 2025. The Judgment herein was based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. Having considered the grounds of appeal and the parties’ Written Submissions, it appeared to this court that the issues that had been placed before it for determination were:-
a. whether the trial court erred in confirming the mode of distribution that was proposed by the Respondent pursuant to family meetings and decisions of elders.
b. whether the distribution of the deceased’s estate adopted by the Trial Court was equitable and lawful under the Law of Succession Act and the Constitution of Kenya, 2010.
6. The Appellant averred that she was occupying one of the houses in the homestead. She prayed sed’s the deceased’s estate be distributed to his children equally in accordance with the Law of Succession Act. All the Grounds of Appeal were dealt with together as they were all related.
7. The Appellant submitted that she was a child within the meaning of Section 29(a) of the Law of Succession Cap 160 (Laws of Kenya) and was, therefore, a lawful beneficiary of the deceased’s estate. She relied on Section 38 of the Law of Succession Act which provided that where no spouse, the net intestate estate would be divided equally among the children of the deceased, whether male or female, married or unmarried.
8. She contended that, being a child of the deceased, she was entitled to an equal share of the estate with the Respondent and that the Trial Court failed to uphold the statutory principle of equality among children of an intestate deceased. She further submitted that the Trial Court improperly relied on family meetings and the views of clan elders in determining the distribution of the estate. She argued that such arrangements could not override the provisions of the Law of Succession Act or the constitutional guarantee of equality under Article 27 of the Constitution. In her view, the arrangement unfairly disadvantaged her as an unmarried daughter of the deceased and amounted to discrimination.
9. She relied on the cases of Rono vs Rono & Another [2005] eKLR , In re Estate of Lerionka Ole Ntutu (Deceased) [2019] eKLR, In re Estate of Solomon Ngatia Kariuki (Deceased) [2008] eKLR, In re Estate of Thiong’o G ĩ thua (Deceased) [2015] eKLR and In re Estate of M’marete M’Ntingia (Deceased) (2019) eKLR to support the proposition that all children of a deceased were to be treated equally, irrespective of gender or marital status, customary practises, community opinions or family arrangements which could not defeat the statutory rights of beneficiaries.
10. She was emphatic that she did not consent to the proposed mode of distribution of the deceased’s estate. She faulted the Trial Court for accepting the Respondent’s assertions on family meetings without establishing if such agreement existed or if she consented to the same. She also challenged the Trial Court’s finding that she was motivated by greed and sought to control the deceased’s funds. She submitted that there was no evidential basis for such a finding and that the court ought to have confined itself to the issues arising from the evidence before it.
11. The Respondent pointed out that the trial court did not adopt his personal proposal but instead approved a mode of distribution that was agreed upon by the beneficiaries after several family meetings. He maintained that the Appellant attended those meetings, participated in the discussions and signed the minutes approving the proposed mode of distribution.
12. He further submitted that the Appellant participated in the succession proceedings, including the filing of the Petition, the gazettement of the Succession Cause and the subdivision of the estate.
13. He asserted that the estate was not limited to the surviving children of the deceased. He contended that some of the deceased’s grandchildren were dependants within the meaning of Section 29(b) of the Law of Succession Act, having been children of deceased’s sons and having been maintained by the deceased before his death.
14. He relied on Sections 27 and 29 of the Law of Succession Act and the case of In Re Estate of Phylis Wasuna Kamau (Deceased) (Succession Cause No 25 of 2019) [2022] KEHC 3286 (KLR) to support his argument that the court had jurisdiction to make provision for dependants.
15. He averred that the allocation of the homestead to him was based on Mmulaga customary practice, which recognised that the surviving or youngest son remained in the family home for purposes of continuity of the family line. He argued that the Trial Court properly considered the evidence of the clan elder in reaching its decision.
16. He placed reliance on the cases of Stephen Mwallyo Mbondo vs County Government of Kilifi [2021] eKLR and Mbogo & Another vs Shah [1968] EA where the court held that an appellate court could interfere with the exercise of a trial court’s discretion if the trial court misdirected itself in some matters and as a result arrived at a discretion that was erroneous or it was manifest that the court had been clearly wrong in the exercise of the judicial discretion which resulted in injustice.
17. He was emphatic that the Appeal herein lacked merit because the Appellant had consented to the mode of distribution and only challenged the same after the estate had been administered. He argued that she could not approbate and reprobate after participating in the succession proceedings and thus urged this court to dismiss the Appeal herein.
18. It was not disputed that the deceased died intestate. The applicable legal framework governing the distribution of the deceased’s estate was Part V of the Law of Succession Act.
19. Section 2(1) of the Law of Succession Act provides that: -
“Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.”
20. The effect of Section 2 of the Law of Succession Act was that intestate estates were primarily governed by the statutory framework established under the Law of Succession Act and that customary practices could only be considered if they were recognised by law and were not inconsistent with the Constitution of Kenya and the written law.
21. It was common ground that the Appellant and the Respondent were children of the deceased. They were, therefore, beneficiaries of the estate by virtue of Section 29(a) of the Law of Succession Act which provides as follows: -
“For the purposes of this Part, "dependant" means—
a. the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
b. such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
c. where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”
22. While children of the deceased fell within the category of dependants under Section 29(a), grandchildren did not automatically inherit merely by reason of their relationship with the deceased. Their entitlement under Section 29(b) depended on proof that they were being maintained by the deceased immediately before his death. They could also only inherit their grandparent’s properties if their parents predeceased their grandfather.
23. Going further, Section 38 of the Law of Succession Act states that: -
“Where intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
24. The above provision established the general principle that, where an intestate deceased left children but no spouse, the estate was required to be equally divided among the surviving children, subject to Sections 41 and 42 of the Law of Succession Act. Although the court could make provision for dependants, such discretion had to be exercised judiciously and within the statutory framework.
25. In line with the case of Rono vs Rono & Another (Supra), daughters were entitled to inherit from their parents’ estates in the same manner as sons. As was held in I n Re Estate of Lerionka Ole Ntutu (Deceased) ( Supra), customary practices could not prevail where they conflicted with statutory and constitutional principles.
26. The court considered the Respondent’s argument that the distribution was founded on family meetings and consent by the beneficiaries. Upon perusing and considering the proceedings of the lower court, the court found that discussions had indeed taken place among family members and clan elders regarding distribution of the estate. However, the existence of such discussions did not, by themselves, confer legality to the distribution adopted by the Trial Court.
27. The duty of a probate court was not merely to record an agreement reached by beneficiaries but to satisfy itself that the proposed mode of distribution complied with the Law of Succession Act. Although beneficiaries could agree on the mode of distribution, such an agreement could not override mandatory statutory provisions or constitutional rights. Indeed, as was stated in the case of In re Estate of Thiong’o G ĩ thua (Deceased) (Supra), family arrangements could not defeat the legal rights of beneficiaries where those arrangements were inconsistent with the Law of Succession Act. Similarly, as was held in In re Estate of Solomon Ngatia Kariuki (Deceased) (Supra), customary practices that discriminated against beneficiaries could not override the statutory provisions governing succession.
28. At the time of confirming a grant under Section 71 of the Law of Succession Act, the probate court was not merely to perform an administrative function but it was required to satisfy itself that the proposed mode of distribution complied with the law. Even where beneficiaries consented to a proposed mode of distribution, the probate court retained the duty to satisfy itself that such consent was lawful and did not amount to an unlawful renunciation of, or discrimination against, the rights of any beneficiary.
29. In this case, what concerned this court was not whether family meetings occurred or whether the family discussed distribution, the question was whether the distribution and/or the process of distribution that was adopted by the Trial Court was one that was permitted by law.
30. Article 27 of the Constitution of Kenya guarantees equality before the law and prohibits discrimination on grounds including sex, marital status and culture. It states as follows: -
“4. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
5. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).”
31. Further, Article 2(4) provides that any law, including customary law, that is inconsistent with the Constitution of Kenya is void to the extent of the inconsistency. It provides as follows-
“Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”
32. Women were also entitled to equal treatment in cultural and social spheres as provided in Article 27(3) of the Constitution of Kenya which states that;;-
“Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”
33. Further, Section 3(2) of the Judicature Act Cap 8 (Laws of Kenya) also mandates that customary practises application to successions matters not be inconsistent with written law or constitutional principles. It stipulates that: -
“The Supreme Court, the Court of Appeal, the High Court, the Environment and Land Court, the Employment and Labour Relations Court and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.”
34. In the present case, the Appellant’s status as an unmarried daughter did not diminish her entitlement to inherit from her father’s estate. Similarly, the Respondent’s status as a son did not confer upon him a superior right to the estate. His reliance on Mmulaga customary practice in support of the allocation of the homestead to him as the surviving son without consent from the other beneficiaries to the deceased’s estate was, therefore, discriminatory, ultra vires to the Constitution of Kenya and in contravention of written law.
35. It was evident from the Ruling of 17 th August 2023 that the grandchildren who benefitted from the estate were orphaned which meant that they stepped into the shoes of their parents who had predeceased the deceased herein. The inclusion of the deceased’s grandchildren on the basis that they were to be dependants was not, in itself, unlawful. However, the court was called upon to exercise caution to ensure that any provision made for dependants under Section 29(b) of the Law of Succession Act did not result in unequal treatment of surviving children contrary to Section 38 of the Law of Succession Act.
36. Notably, in the minutes of 17 th November 2020, the Appellant was indicated as a Complaint (sic) . Although there was no indication that she was given an opportunity to represent her position, she and the Respondent appeared to have agreed to the resolutions of the meeting, forgave each other and shook hands. However, there was no evidence that the Appellant executed the Consent in Form 38 of the Probate and Administration Rules that stipulates that:-
“An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.”
37. There was also no evidence that she executed Form 37 as provided in Rule 40 (8) of the Probate and Administration Rules that states as follows: -
“Where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the registrar before the court by which the grant was issued which may, on receipt of the consent in writing in Form 37 of all dependants or other persons who may be beneficially entitled, allow the application without the attendance of any person; but where an affidavit of protest has been filed or any of the persons beneficially entitled has not consented in writing the court shall order that the matter be set down as soon as may be for directions in chambers on notice in Form 74 to the applicant, the protester and to such other persons as the court thinks fit.”
38. Although the Respondent’s contention regarding the alleged dependants was legally tenable and the family discussions may have taken place, those considerations could not, without proper statutory analysis, justify a mode of distribution that departed from the principles governing intestate succession in terms of procedure and substance without the consent of all beneficiaries to the deceased’s estate. The mode of distribution adopted by the Trial Court could not, therefore, stand.
DISPOSITION
39. For the foregoing reasons, the court found that the Appeal that was dated 31 st August 2023 and lodged on even date was merited. The effect of this is that the Ruling of Hon R. Ndombi (PM) delivered on 17 th August 2023 in Vihiga Principal Magistrate’s Court Succession Cause No E115 of 2021 be and are hereby set aside and/or vacated.
40. The matter be and is hereby remitted to the lower court for fresh consideration of the appropriate mode of distribution in accordance with the Law of Succession Act.
41. Matter to be mentioned before the Head of Station Vihiga on 17 th August 2026 for allocation of the matter for hearing and determination of the mode of distribution to the beneficiaries to the deceased’s estate.
42. Considering that this dispute arose from a family succession process, this court deviated from the general principle that costs follow the events to avoid further acrimony between the family members and hereby directs each party shall bear its own costs of the Appeal herein.
43. It is so ordered.
DATED and SIGNED at VIHIGA this 28 th day of July 2026
J. KAMAU
JUDGE
HCFA NO 3 OF 20232