Automated Summary
Key Facts
The case involves the estate of Lerionka Ole Ntutu, a Masai man with multiple wives and children. The deceased's daughters challenged the proposed distribution of his estate, as the brothers argued Masai customary law excludes daughters from inheriting. The court determined that the Law of Succession Act (Cap 160) applies universally to modern assets like registered land, overriding customary law which discriminates based on sex. Key legal provisions cited include Sections 2(2), 29(a), 32, and 33 of the Act, along with international treaties like CEDAW and the Judicature Act's Section 3(2) on repugnancy to justice and morality. The daughters were granted inheritance rights to a registered land in Narok District, where the Act is applicable.
Deceased Name
Lerionka Ole Ntutu
Issues
- The court examined if Sections 32 and 33 of the Act, which exempt agricultural land and livestock in specified areas, apply to the deceased’s estate in Narok District. It found that the daughters’ claim to registered land is not covered by the exemption, making the Act applicable.
- The court determined whether the Law of Succession Act (cap 160) or Masai customary law governs the inheritance rights of the deceased’s daughters. It concluded that the Act applies universally, including to daughters, and that customary law denying daughters inheritance is repugnant to justice and morality under Section 3(2) of the Judicature Act and international human rights norms like CEDAW.
- The court addressed whether Masai customary law denying daughters inheritance is repugnant to justice and morality. It ruled in favor of the Act’s non-discriminatory provisions, aligning with Kenya’s Constitution (Section 82) and international covenants prohibiting gender-based discrimination.
Holdings
- The court held that the daughters of Lerionka Ole Ntutu are entitled to inherit the asset 'L.R. Narok/Cismara/Ochora Oirwua/24' because it is registered land, which is excluded from the application of customary law under the Law of Succession Act (Section 32). The Act applies universally to modern assets like registered land, and the Cotran Commission's report supports this exclusion.
- The court further held that customary laws denying daughters inheritance rights are repugnant to justice and morality under Section 3(2) of the Judicature Act. Even if Sections 32 and 33 applied, the Masai customary law's exclusion of daughters would conflict with Kenya's constitutional and international law obligations to prohibit gender-based discrimination.
Remedies
- The Objector daughters are entitled to inherit from the asset of the estate known as L.R. Narok/Cismara/Ochora Oirwua/24.
- The costs of this proceedings be to the objectors.
Will Type
Intestacy
Probate Status
Contested due to dispute over inheritance rights of daughters under Masai customary law versus the Law of Succession Act.
Legal Principles
- The court applied the purposive approach to interpret the Constitution and the Law of Succession Act, emphasizing the elimination of gender-based discrimination in inheritance rights. This approach prioritized the spirit of non-discrimination over rigid adherence to customary laws that conflict with constitutional principles.
- The court held that customary laws conflicting with constitutional and international human rights norms (e.g., CEDAW) are repugnant to justice and morality under Section 3(2) of the Judicature Act. This principle was used to invalidate Masai customary law denying daughters inheritance rights.
Succession Regime
Hybrid regime: Law of Succession Act (Cap 160) and Masai customary law, with the Act governing modern assets like registered land.
Precedent Name
- Mary Rono vs. Jane Rono and William Rono
- R.M. and another vs. A.G
- Mwanthi versus Mwanthi and another
- John Kinuthia Githinji versus Githua Kiarie and Others
Cited Statute
- Constitution of Kenya
- Judicature Act, Chapter 8, Law of Kenya
- Law of Succession Act (Cap 160)
Executor Appointment
Other
Judge Name
K.H. Rawal
Passage Text
- Thus, I do find that the Objector daughters are entitled to inherit from the asset of the estate known as L.R. Narok/Cismara/Ochora Oirwua/24.
- customary law which shall abrogate the right of daughters to inherit the estate of a father cannot be applicable as it shall be repugnant to justice and morality. (Section 3(2) of the Judicature Act).
- It can not be disputed that as per the provisions of the Act, the children include sons and daughters and the Act does not discriminate between female and male children of the deceased.
Beneficiary Classes
Child / Issue