A Question on Succession

[Ubongo]

These cases take years to completion.... strategy of the court for the family to go,sit and have amicable settlements. Unfortunately, the parties involved don't see an eye to an eye. Generational hatred, curses slowly growing.

 

[Tiiga Waana]

@Aviator,
By other binding declarations the Courts are looking for documentary evidence as well as implicit actions by the Deceased and Beneficiaries.
Think of things like letters written to friends of the Deceased expressing or denying right to inheritance.
Letters to banks and saccos guaranteeing loans.
Regular Mpesa support to Beneficiaries would avoid all doubts that Mzee was keen on helping and wouldn’t mind part of his properties being conferred to a certain Beneficiary.

It could also be by implication: Mzee gave the Son not just land but also help with putting up a dwelling.
These are irrefutable proof of dealings between the Deceased and Beneficiaries albeit not contained in a will (last testament of the Deceased as to how his properties should be distributed).

 

[Aviator]

@Aviator,
By other binding declarations the Courts are looking for documentary evidence as well as implicit actions by the Deceased and Beneficiaries.
Think of things like letters written to friends of the Deceased expressing or denying right to inheritance.
Letters to banks and saccos guaranteeing loans.
Regular Mpesa support to Beneficiaries would avoid all doubts that Mzee was keen on helping and wouldn’t mind part of his properties being conferred to a certain Beneficiary.

It could also be by implication: Mzee gave the Son not just land but also help with putting up a dwelling.
These are irrefutable proof of dealings between the Deceased and Beneficiaries albeit not contained in a will (last testament of the Deceased as to how his properties should be distributed).

Got it

 

[uwesmake]

Does customary law have a place in succession matters?
Coz I think as per Kikuyu customs, the girls should not have any further claim. The issue would now be between the son and the (illegitimate) nephew.

Remaining son has a duty to settle his late brothers family, but they cannot get an equal share. Remaining son aache tamaa, he pushed his own brother and father to their early deaths. First round alipewa 15 acres wengine wakipata 5 acres na bro wake akipata worthless land huko Nakuru. Sasa anataka 40 acres peke yake?

Heri kugawana 40 acres na watoto wa blood brother kuliko kugawana na brothers-in-law wenye wataiuza after 6 months.

 

[Aviator]

Remaining son has a duty to settle his late brothers family, but they cannot get an equal share. Remaining son aache tamaa, he pushed his own brother and father to their early deaths. First round alipewa 15 acres wengine wakipata 5 acres na bro wake akipata worthless land huko Nakuru. Sasa anataka 40 acres peke yake?

Heri kugawana 40 acres na watoto wa blood brother kuliko kugawana na brothers-in-law wenye wataiuza after 6 months.

I agree ako na tamaa.
But pia he is just relying on mzees words. But he has to share with his late brother coz he has one blood nephew, hao wengine watatu ni foreign blood.

Sisters ndio naona wanafaa kujitoa. Washapata their 5 acres. Waende kwa mabwana zao.

I will be advising the ladies to keep off and the brother to sell a portion and buy some other land for his late brother and settle them there.

 

[Field Marshal]

Lawyers (and other imenyi) in the house, help me here.

Some relatives are dividing their late parents'wealth. They are 3 girls and 1 boy. A second boy passed on sometime last year, but ako na offsprings.

This late boy was one hell of a character. He was the black ship (sic) of the family. Many years ago, he had taken his dad to the chief demanding his inheritance. The chief of course saw the stupidity of the issue and advised the dad to settle this guy far away since he can be dangerous. The dad did exactly that and sent the boy to a farm he owned in Nakuru. Mpaka akambadilishia tirle. He even built a home for the guy. The guy moved with his family, but sold the land after less than an year. He rented but when the cash ran out, the guy returned back home. By then, the Mzee had allocated half of the land where they stay to the other four siblings. He was also suffering from dementia. He welcomed his son back home with his family. An year later he passed on. The wife, now their mother, passed on early last year. Now they are sharing the wealth.

Here's the kizungumkuti.
1) The remaining son says that before the father lost his mental faculties, he had disowned this other son.
2) That the father had told him that he has sorted the daughter's, and therefore the remaining land, property and cash is his.
3) The daughters argue that they are entitled to an equal share of the remaining wealth, including cash in bank and plots. They say there's no written word to verify above claims.
4) All the four agree that the late son had got his inheritance and therefore has no further claim.
5) A son to the late brother has joined the mix claiming that he is also entitled to the wealth of his grandfather. He argues that the portion given to his late dad cancels with whatever everyone else received. Note that this son is not the blood of the late brother. On fact, out of the four kids the late brother left, only one is his blood.

The family is now at stalemate. They have sought intervention of a few cousins, among them yours truly. I would love to hear your opinion on this issue.

On my side, I would say that in the absence of any written will, the law requires that the property be divided equally into 5 parts. I however think it would be unfair to the late Mzee coz I know for sure he had disowned his son that time he was reported to the chief.
As for the girls, I think they are also being unfair considering they are all married and have husband's who have inherited land from their parents.

But what do I know?
Experts leteni maoni.

Cc @Kasaman @Field Marshal @Mwalimu-G @Meria @Tiiga Waana and all elders of goat

I have not read any of the replies because I do not want them to contaminate my thoughts.

Here's my initial view.

In Central Kenya, matters of succession are largely determined in two ways; cultural and Parliamentary law.

The cultural way of doing things is largely by concensus. It is usually the least troublesome.

In the above matter, if the cultural way of doing things is followed, the mzee's word is final. In a traditional court say at the chief's the status quo as stated by the remaining son, if it is collaborated by other wazees or uncles, would suffice.

It is important in this sense - and this is critical - that where the Mzee decided to allocate his wealth to any of his daughters, this had to be much lower in value than what is allocated to the sons because the daughters would in any case be married elsewhere. But critically, a father/matha has the right to allocate some of his/her property to daughters, married or not, depending ni nani who looked after him in his old age.

As for the prodigal son, culturally he doesn't have a case. Alipata zake, akatupa. The fact that he was given refuge in his father's home does not mean he went back to square one. Culturally, he has no claim.

If the cultural route was followed then the matter would rest there. But the fact that the three daughters are laying claim to more than what was given to them means that the cultural way is unlikely to be followed. It prolly will end up in court.

So what does the law say?

It says, in Greek, "gutire mwana wa daa kana wa mugongo" - hakuna mtoto alizaliwa kutoka kwa tumbo na mwingine kwa mgongo. Girls and boys are equal.

In this instance, and in the absence of a will, the value of the mzee's estate, including land, cash, shares, etc will be divided into 5 equal parts and given to all five children, dead or alive.

The only complication would be the prodigal son, where a court could rule in either of two ways. One, it could rule that as witnessed by the four surviving kids that he took his inheritance and gave up all other claims to the rest of his mzee's estate. Or two, that the land and home he was given were so small compared to the rest of the estate that they could not reasonably be taken to be his entire inheritance.

In the latter case, the court will possibly order a valuation of the entire estate, including what was given to the prodigal son earlier. The prodigal son would then get his share LESS what he had already got.

Now, you raise the fact that the prodigal son is unfortunately dead, and only one of his children is biological. Under the law, this is mute; all children are considered beneficiaries of a parent unless the parent 'adopted' them when they were over 18 years. Ukioa singo matha with three underage brats those are your kids, either from a cultural or contemporary law standpoint.

Thus, the demands of the non-biological son can only be viewed from the perspective of his father's rights as expoused above. If a court rules that his father has a right to more property, and the son was adopted before he was 18, then the son has a right to his grandfather's estate.

So, what do I think should happen?

If these were my folks I would advise the four surviving siblings to sit down and reason together. The cultural way is better here. The girls must agree to take lesser portions than the remaining son as per Gikuyu culture. They have properties elsewhere.

The remaining son and daughters must however also exercise magnanimity and generosity. If it is possible, they must set aside a small portion of land to give to their nieces and nephews. The sins of the father should not be visited upon the children. If the land at play is say 20 acres, there is no harm giving them say 1.5 acres.

But the key thing would be to avoid expensive, long-drawn legal wrangles. As you know these can go on for 20 years or more. Afadhali upoteze hata acres kadhaa na you benefit from your share than die waiting to inherit the whole thing.

Wacha niwachie hapo kwa Sasa nisome comments.

 

[Mwalimu-G]

to sell a portion and buy some other land for his late brother and settle them there.

No need for that. Wagawie portion yao pale mwisho wajenge waishi. Their father was the problem after all, not the wife and children.

 

[wrongturn]

@Aviator you case seems to be quite familiar to what I heard somewhere.
But I think as a society we need to normalize writing and updating wills.
case I heard is father died with no will, one lost son showed up to demand his share, sisters insist the father said he shouldn't get anything fact which is collaborated by neighbors .Can easily be said they're ganging up against the son without written documents from the deceased.

 

[Aviator]

I have not read any of the replies because I do not want them to contaminate my thoughts.

Here's my initial view.

In Central Kenya, matters of succession are largely determined in two ways; cultural and Parliamentary law.

The cultural way of doing things is largely by concensus. It is usually the least troublesome.

In the above matter, if the cultural way of doing things is followed, the mzee's word is final. In a traditional court say at the chief's the status quo as stated by the remaining son, if it is collaborated by other wazees or uncles, would suffice.

It is important in this sense - and this is critical - that where the Mzee decided to allocate his wealth to any of his daughters, this had to be much lower in value than what is allocated to the sons because the daughters would in any case be married elsewhere. But critically, a father/matha has the right to allocate some of his/her property to daughters, married or not, depending ni nani who looked after him in his old age.

As for the prodigal son, culturally he doesn't have a case. Alipata zake, akatupa. The fact that he was given refuge in his father's home does not mean he went back to square one. Culturally, he has no claim.

If the cultural route was followed then the matter would rest there. But the fact that the three daughters are laying claim to more than what was given to them means that the cultural way is unlikely to be followed. It prolly will end up in court.

So what does the law say?

It says, in Greek, "gutire mwana wa daa kana wa mugongo" - hakuna mtoto alizaliwa kutoka kwa tumbo na mwingine kwa mgongo. Girls and boys are equal.

In this instance, and in the absence of a will, the value of the mzee's estate, including land, cash, shares, etc will be divided into 5 equal parts and given to all five children, dead or alive.

The only complication would be the prodigal son, where a court could rule in either of two ways. One, it could rule that as witnessed by the four surviving kids that he took his inheritance and gave up all other claims to the rest of his mzee's estate. Or two, that the land and home he was given were so small compared to the rest of the estate that they could not reasonably be taken to be his entire inheritance.

In the latter case, the court will possibly order a valuation of the entire estate, including what was given to the prodigal son earlier. The prodigal son would then get his share LESS what he had already got.

Now, you raise the fact that the prodigal son is unfortunately dead, and only one of his children is biological. Under the law, this is mute; all children are considered beneficiaries of a parent unless the parent 'adopted' them when they were over 18 years. Ukioa singo matha with three underage brats those are your kids, either from a cultural or contemporary law standpoint.

Thus, the demands of the non-biological son can only be viewed from the perspective of his father's rights as expoused above. If a court rules that his father has a right to more property, and the son was adopted before he was 18, then the son has a right to his grandfather's estate.

So, what do I think should happen?

If these were my folks I would advise the four surviving siblings to sit down and reason together. The cultural way is better here. The girls must agree to take lesser portions than the remaining son as per Gikuyu culture. They have properties elsewhere.

The remaining son and daughters must however also exercise magnanimity and generosity. If it is possible, they must set aside a small portion of land to give to their nieces and nephews. The sins of the father should not be visited upon the children. If the land at play is say 20 acres, there is no harm giving them say 1.5 acres.

But the key thing would be to avoid expensive, long-drawn legal wrangles. As you know these can go on for 20 years or more. Afadhali upoteze hata acres kadhaa na you benefit from your share than die waiting to inherit the whole thing.

Wacha niwachie hapo kwa Sasa nisome comments.

Wisdom.
Am just looking at a situation where the grandfather's estate falls into the hands of an illegitimate coz he happens to be the eldest amongst the nephews and nieces. Kuna kitu haiingiani hapo. Thus my thoughts that they could dispose of some portion and settle this foreign blood elsewhere.
Inasmuch as the law protects the illegitimate kids, we all know it's not right.

No need for that. Wagawie portion yao pale mwisho wajenge waishi. Their father was the problem after all, not the wife and children.

Do they ignore the "mūgambo''?

 

[Aviator]

@Aviator you case seems to be quite familiar to what I heard somewhere.
But I think as a society we need to normalize writing and updating wills.
case I heard is father died with no will, one lost son showed up to demand his share, sisters insist the father said he shouldn't get anything fact which is collaborated by neighbors .Can easily be said they're ganging up against the son without written documents from the deceased.

Our parents' generation believe that writing a will is inviting death. Don't be surprised even birrioneyas like SK Macharia and Munga wa Equity don't have a will.

 

[Field Marshal]

So, the wishes of the dad become null and void?
In my place, we value "mugambo" more than the law.

Same with Gìkūyū, but the law is an ass.

Mzee had already assigned everyone, including the daughters a portion. A substantial portion, I must add. 5 acres each. Kijana alipewa Nakuru land that was worth less. The good son got 15.
Now the remaining land is around 40 acres. Pia Kuna ancestral land of 5 acres and some two rent-generating plots. This is what is at stake.
[/QUOTE


This is why I did not read comments first. Now do you see from my earlier comment I anticipated this?

 

[stanmwa]

Lawyers (and other imenyi) in the house, help me here.

Some relatives are dividing their late parents'wealth. They are 3 girls and 1 boy. A second boy passed on sometime last year, but ako na offsprings.

This late boy was one hell of a character. He was the black ship (sic) of the family. Many years ago, he had taken his dad to the chief demanding his inheritance. The chief of course saw the stupidity of the issue and advised the dad to settle this guy far away since he can be dangerous. The dad did exactly that and sent the boy to a farm he owned in Nakuru. Mpaka akambadilishia tirle. He even built a home for the guy. The guy moved with his family, but sold the land after less than an year. He rented but when the cash ran out, the guy returned back home. By then, the Mzee had allocated half of the land where they stay to the other four siblings. He was also suffering from dementia. He welcomed his son back home with his family. An year later he passed on. The wife, now their mother, passed on early last year. Now they are sharing the wealth.

Here's the kizungumkuti.
1) The remaining son says that before the father lost his mental faculties, he had disowned this other son.
2) That the father had told him that he has sorted the daughter's, and therefore the remaining land, property and cash is his.
3) The daughters argue that they are entitled to an equal share of the remaining wealth, including cash in bank and plots. They say there's no written word to verify above claims.
4) All the four agree that the late son had got his inheritance and therefore has no further claim.
5) A son to the late brother has joined the mix claiming that he is also entitled to the wealth of his grandfather. He argues that the portion given to his late dad cancels with whatever everyone else received. Note that this son is not the blood of the late brother. On fact, out of the four kids the late brother left, only one is his blood.

The family is now at stalemate. They have sought intervention of a few cousins, among them yours truly. I would love to hear your opinion on this issue.

On my side, I would say that in the absence of any written will, the law requires that the property be divided equally into 5 parts. I however think it would be unfair to the late Mzee coz I know for sure he had disowned his son that time he was reported to the chief.
As for the girls, I think they are also being unfair considering they are all married and have husband's who have inherited land from their parents.

But what do I know?
Experts leteni maoni.

Cc @Kasaman @Field Marshal @Mwalimu-G @Meria @Tiiga Waana and all elders of goat

Hatari. Mzee errored in giving property to one son. Angepea kila mtu their portion back then. So messy now. Solution is risasi kutembea, why lie

 

[Field Marshal]

This caught my attention.
From what I know, he conferred to him as a way of getting him away from the rest. And that is why he was given land over 200kms away, while everyone else was given at the current home.
And all the other siblings are in agreement on this. And I too know that's the case.

Is that a valid argument?



What does this refer to?

If this matter goes to court, these witnesses will be critical in determining whether the late son has a claim or not. But as I said, it could go either way - after 15 years...

 

[Field Marshal]

I agree ako na tamaa.
But pia he is just relying on mzees words. But he has to share with his late brother coz he has one blood nephew, hao wengine watatu ni foreign blood.

Sisters ndio naona wanafaa kujitoa. Washapata their 5 acres. Waende kwa mabwana zao.

I will be advising the ladies to keep off and the brother to sell a portion and buy some other land for his late brother and settle them there.

This would be a good solution. Again read my comment above..

 

[Field Marshal]

Wisdom.
Am just looking at a situation where the grandfather's estate falls into the hands of an illegitimate coz he happens to be the eldest amongst the nephews and nieces. Kuna kitu haiingiani hapo. Thus my thoughts that they could dispose of some portion and settle this foreign blood elsewhere.
Inasmuch as the law protects the illegitimate kids, we all know it's not right.

Do they ignore the "mūgambo''?

That's fairly simple to solve, either from a cultural or contemporary standpoint. Ile shambas inapewa hao nieces and nephews iwe subdivided...

 

[Mwalimu-G]

W

Wisdom.
Am just looking at a situation where the grandfather's estate falls into the hands of an illegitimate coz he happens to be the eldest amongst the nephews and nieces. Kuna kitu haiingiani hapo. Thus my thoughts that they could dispose of some portion and settle this foreign blood elsewhere.
Inasmuch as the law protects the illegitimate kids, we all know it's not right.

Do they ignore the "mūgambo''?

Which mugambo again? Didn't you say there's no known word left with any known persons?

 

[Aviator]

I however think it would be unfair to the late Mzee coz I know for sure he had disowned his son that time he was reported to the chief.

Which mugambo again? Didn't you say there's no known word left with any known persons?

Above

 

[Aviator]

That's fairly simple to solve, either from a cultural or contemporary standpoint. Ile shambas inapewa hao nieces and nephews iwe subdivided...

Imagine you marry a woman with three grown children. Mnazaa kamoja and you name him after your dad.
Then at succession, the big lad, whose blood you have no idea where it comes from, becomes the administrator. And note that in most cases, these bastards aren't the best-behaved.

The law is an ass. Some things.... I kent

 

[Tiiga Waana]

Wisdom.
Am just looking at a situation where the grandfather's estate falls into the hands of an illegitimate coz he happens to be the eldest amongst the nephews and nieces. Kuna kitu haiingiani hapo. Thus my thoughts that they could dispose of some portion and settle this foreign blood elsewhere.
Inasmuch as the law protects the illegitimate kids, we all know it's not right.

Do they ignore the "mūgambo''?

How will the Grandpa’s estate fall into the hands of foreign blood?
The Court normally appoints an Executor to the Estate. In this case the Executor, due to Intestacy, The Public Trustee, will administer and divide land, money and properties amongst the qualifying Beneficiaries.
The illegitimate Son will be a Beneficiary as everybody else and will have to wait in line for their share. They won’t play any role or influence the distribution.
Do I sense some bitterness towards this illegitimate? His Father was happy and comfortable with him as a Son.

As for “Mugambo” this is what my opinion is: The dead just like the living do posses certain enforceable rights.
They are buried where and in a manner that they prescribed. Their wishes on who gets what from their estate is enforceable especially with a valid will.
But that is just about all they are entitled to. Their rights under the law does not exceed these.
Morally and culturally, we might feel obliged to extend these and afford them more leeway.
They might have forbidden us to marry certain clans, give help to certain people who were their enemies or they had forsaken some of their offsprings.
Is this enforceable by law? Of course not.
It’s a case of Dead Men Tell No Tales.

Think how tiresome and irksome a process it would be to bring an Expert Witness to Court to prove what a force “mugambo” is.
I am reminded of a case we read in undergraduate called SM Otieno and Umira Kager Clan.
A presiding Judge would gladly give the Deceased the chance to demonstrate the power and consequences of their “mugambo”.

 

[Aviator]

The illegitimate Son will be a Beneficiary as everybody else and will have to wait in line for their share. They won’t play any role or influence the distribution.

This boy is 20, I think. In the absence of the father, he obviously takes the upper hand. The other boy, the only legitimate offspring, is barely 7.

Do I sense some bitterness towards this illegitimate? His Father was happy and comfortable with him as a Son.

Of course. He's not our blood. And he was the dad's partner in crime.

A presiding Judge would gladly give the Deceased the chance to demonstrate the power and consequences of their “mugambo”.

Kwani huyo judge hakuwa African? Anachesa na omera.