Succession in Kenya: Intestacy, Polygamy, Property Sharing—and When a Will Suddenly Surfaces

A recent High Court decision in In re Estate of Raphael Charles Makokha (Deceased) [2024] KEHC 12277 (KLR) has cast fresh light on key aspects of succession law in Kenya—especially the distinctions between testate and intestate succession, property sharing in polygamous families, and the often-overlooked requirement of properly ascertaining a deceased person’s assets before seeking distribution.

The dispute arose following the death of Raphael Makokha in 2013. For years, the succession proceedings moved on the basis that he had died intestate, only for one of the widows to later introduce an alleged will—nearly a decade into the process. This created procedural confusion and legal tension over the mode of distribution, raising important questions for families and legal practitioners alike.

1. The Will That Appeared Midway: Why Timing and Procedure Matter

Although the deceased’s estate had initially been processed as an intestate matter—with letters of administration issued accordingly—one administrator later claimed to have discovered a written will. However, the court held firmly that the will could not be acted upon within the current intestate proceedings.

The law requires that when a person dies leaving a valid will, the appropriate cause to initiate is one for probate or for grant of letters of administration with will annexed. Simply producing a will in the middle of intestacy proceedings without initiating the proper process is not acceptable in law.

Importantly, the court emphasized that if a will genuinely exists, it must be proved through a formal process—ideally by the executor named in the will. Otherwise, intestacy remains the legal framework for distribution.

2. Sharing Property in a Polygamous Family: Applying Section 40 of the Law of Succession Act

Raphael Makokha had two wives at the time of his death. One had four children, while the other had none. The court confirmed that Section 40 of the Law of Succession Act governs such situations. This section provides that the estate of a polygamous man should be divided according to the number of units—each child being a unit, with each surviving widow also considered an additional unit.

In this case:

1. The first house (one wife and four children) had five units.
2. The second house (one wife, no children) had one unit.

As a result, the distribution ratio was 5:1 in favour of the first house.

This case is a reminder that under Kenyan law, all wives legally married and alive at the time of death are entitled to inherit, and the number of children plays a pivotal role in determining shares.

3. Why Ascertaining the Deceased’s Assets Is Crucial Before Distribution

Another major takeaway from the ruling is the necessity of identifying and confirming ownership of estate assets before proposing a mode of distribution. In this case, parties put forward properties for distribution—some of which were not registered in the deceased’s name at the time of death.

Ultimately, the court found that only one asset—a motor vehicle (KAC 542W)—was properly registered in the name of the deceased. All other properties were either:

1. Already transferred to other persons,
2. Acquired by the widows in their personal capacity,
3. Or never belonged to the deceased in the first place.

The court criticized the parties for failing to undertake proper due diligence before proposing how to share out the estate. It reiterated that attempting to distribute property not legally belonging to the deceased leads to legal embarrassment, possible rejection at the lands office, and unnecessary delay.

The administrators were given 90 days to properly ascertain the deceased’s assets and return to court with supporting documents before distribution of the remainder could proceed.

Conclusion: What This Case Teaches About Succession in Kenya

This case offers three powerful lessons for anyone navigating succession in Kenya:

1. Wills must be introduced early and through proper procedure. Producing a will midway through intestate proceedings raises suspicion and cannot automatically alter the legal process.
2. Polygamous families must understand the unit-based approach under Section 40. Distribution depends on the number of children and surviving spouses—not sentiments or marital duration.
3. Ascertain the estate before distribution. Always verify that the listed properties actually belonged to the deceased at the time of death and that supporting documentation is available.

Whether you are a family member, a legal representative, or a concerned beneficiary, this case underscores the importance of getting the procedure right from the start—and ensuring the facts on property ownership are solid before stepping into court.

Disclaimer:
This article is intended for general informational purposes only and does not constitute legal advice or create an advocate-client relationship. For specific legal assistance, we invite you to consult us on matters including: succession planning in Kenya, applying for letters of administration, will drafting and probate services, estate distribution in polygamous families, contesting or defending a will, resealing foreign grants, representation in succession disputes, and assisting Kenyans in the diaspora with cross-border succession processes. We are available to guide you through every stage of the succession process in Kenya