Can Grandchildren Inherit Directly from Their Grandparents in Kenya? A Key Ruling on Representation in Succession

A recent judgment by the High Court in Maina v Kipruto & 3 Others [2025] KEHC 319 (KLR) has clarified a common but often misunderstood issue in succession law in Kenya: Can grandchildren inherit directly from a grandparent’s estate when their own parent is deceased?

The case arose from the estate of one Changwony Rotich, a polygamous patriarch who died intestate in 2001. His only surviving child, Francis Toroitich Maina (the appellant), sought to distribute the estate in a manner that would effectively exclude his nephews and niece—the children of his two deceased brothers—from equal shares. The grandchildren objected, asserting their right to inherit the shares their fathers would have taken had they been alive.

The Court’s Finding: Representation Is Lawful and Protected

The High Court reaffirmed a well-established principle under Kenyan succession law: grandchildren do not generally inherit directly from their grandparents—but they can do so by representation where their parent (the child of the deceased) has died before the grandparent.

This is governed by Section 41 of the Law of Succession Act, which allows the descendants of a deceased child to take their parent’s share in equal proportions. The court stated clearly that the right of the grandchildren to inherit was not contested and was well within the confines of the law.

Equal Shares? The Debate Over Distribution

The appellant had proposed that the estate be divided per household, citing alleged Keiyo customary practices which he claimed favored distribution by wives’ houses, not individual descendants. If adopted, this would have given him half the estate, since he was the only surviving child in his mother’s house, while the other half would be shared among the four grandchildren from the first house.

However, the court rejected this proposal. First, it noted that the appellant had not raised the issue of customary law in the pleadings or evidence, only bringing it up during final submissions. This was found to be procedurally irregular and amounted to trial by ambush.

Secondly, the judge held that the fairest and legally appropriate mode of distribution in this case was per stirpes—that is, based on the number of the deceased’s children. Since the deceased had three sons (two of whom were deceased), the estate was to be divided equally into three shares, with the grandchildren taking their respective father’s share.

Key Legal Takeaways

1. Representation under Section 41 is valid: If a child of the deceased dies before them, their children (i.e., the deceased’s grandchildren) are entitled to inherit in their place.
2. Distribution is per stirpes, not necessarily per capita or per household: Especially in intestate succession, the estate is typically divided according to the number of children the deceased had, not the number of surviving descendants.
3. Customary law must be pleaded and proven: Courts will not apply customary rules unless they are properly raised in pleadings and evidence—and such customs must not contradict statutory law or constitutional rights.
4. Grandchildren do not inherit unless their parent is deceased: This principle is a safeguard to ensure orderly transmission of property and prevent disinheritance through early deaths.

Conclusion

This judgment is significant for families involved in succession disputes where one generation has been lost before estate distribution occurs. It confirms that grandchildren can lawfully step into the shoes of their late parent and inherit from their grandparent’s estate, preserving the rights of the next generation and ensuring a just transmission of property.

Whether dealing with polygamous families, contested wills, or intestate estates, Kenyan law continues to evolve in its interpretation—but clarity on such core principles helps reduce conflict and protect vulnerable beneficiaries.

Disclaimer: This article is published for general informational purposes only and does not constitute legal advice. If you are dealing with succession matters in Kenya—particularly where grandchildren seek to inherit from a grandparent’s estate, or where polygamous family dynamics complicate estate distribution—we invite you to consult us. We offer professional legal assistance on intestate succession, inheritance rights of grandchildren, representation in succession disputes, equitable property sharing under Section 40 of the Law of Succession Act, and distribution of estates in polygamous households. We also assist Kenyans in the diaspora with navigating cross-border succession matters involving property in Kenya. Contact us today for tailored legal support based on the facts of your case.