The Malindi High Court judge Reuben Nyakundi said a widow is not entitled, absolutely and exclusively, to the estate of her husband, but only to a life interest over the property. A widow’s entitlement to absolute access to the estate is limited to personal and household goods.
In a case in which a family wants a divorcee and widow, who remarried after the demise of her husband, locked out of the inheritance, the judge gave a ruling that inheritance of assets and property should be from parent to descendants and not to contemporaries or ascendants.
“Widows are only entitled to a life interest over the property, for the ultimate destination of the property of the deceased is not to her but the children,” he said.
“Justice Nyakundi argued that the concept of succession, whether under statute, common or customary laws, is about generational transfer of wealth from parents to their children.”
According to him, property should be passed absolutely to the children of the deceased but not to the surviving spouse. Even though arguments are there indicting that spouse should be given priority over children, Nyakundi said that contention has no backing in law and is contrary to the concept of succession.
ISB moved the court under a certificate of urgency to block the remarried widow from interfering with the deceased’s homes, pending the hearing of the succession row.
“Let the court order that the three widows and their children continue living in their matrimonial homes without interference,” ISB told the judge.
To the applicant, an order should be given declaring that the woman’s interest in the deceased’s estate is no more, now that she remarried, and also an order directing the inheritance case to begin afresh six years into the dispute.
The row relates to the property of SB, who died intestate on July 22, 2014.He had three wives – ZSM, MS and ZSS.
Concerning the court records, no formal divorce or separation proceedings were filed, though ZSM and SB lived apart.
The complainant said that at the time of the man’s demise, he was still married to ZSS, but her interests in the deceased’s estate were extinguished the moment she remarried. He obtained court documents, showing MS applied for divorce twice but one plea was withdrawn.
The man died before the court could issue final orders in the second divorce.He therefore said that it could be a failure of justice to allow MS and ZSM to administer the deceased’s estate.
The former wives however insisted that the complainant raised the issues prematurely. They also said that keeping the succession pending offends the rule of natural justice of determining matters expeditiously and justly.
Similarly, the two accused the complainant of filing the application despite a consent recorded by the parties in the case to abandon numerous applications and focus on the main suit.
The Succession Act defines a “dependant” as the wife/wives, former wife/wives and children of the deceased, whether or not maintained by the man immediately before to his death.
Justice Nyakundi relied on the Act to dismiss the complainant’s arguments that remarrying or dissolving a marriage disqualifies the two women from claiming the man’s property.
“This, to the mind of the court, therefore, rules out the issue of whether one of the widows has since remarried or is a divorcee as has been said by the applicant. The dependants in this matter remain the ones indicated in the letter by the area chief,” Justice Nyakundi said.
He also said that the argument being advanced by the applicant that some of the widows are divorcees or have since remarried remains an issue that the court will look into during the final determination of the petition.
The judge added that evidence presented to him showed the women were married to the man and got children from the unions.
“The court makes an order that the assets of the deceased’s estate remain intact, without interference from any of the beneficiaries,” Justice Nyakundi said.
“I would accept oral evidence from the beneficiaries, with a final order that the status quo on the property be maintained, pending determination of the succession case.” the judge said.
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