Where dependants of a deceased agree to a mode of distribution of the estate, it is a pretty easy matter to deal with. However, in cases of a polygamous estate, this is not very easy. In Eldoret HC Succession Cause (P&A) 58 of 2020, in Re Estate of Joseph Eric Owino (Deceased) [2022] eKLR Justice Nyakundi clarified most of these matters and that informs our discourse below. In this article, we answer the question of how to distribute the estate of a deceased polygamous to his dependants.
Where a polygamous man dies without a will, his estate is required to be distributed in terms of Section 40 of the Law of Succession Act. It provides that the same be distributed equally among the houses according to the number of children in each house. It further adds that the surviving wife in each house is added as an additional unit. But what does this mean in simple terms? I have painted a simple scenario below.
For instance, X has 2 wives. Wife A has 1 child and wife B has 3 children. The children are 4 and the mothers are 2. They form a total of 6 units; i.e., 4 children and 2 mothers. In this scenario, the property is best divided into 6 parts and these parts are distributed equally among the 6. Wife A and her child will have 2/6 of the deceased’s property while wife B and her children will have 4/6 of the deceased’s property. The law of succession implies that the house with fewer children receives less property. Is this fair or unfair? Let me know your opinion.
This mode of distribution has largely been adopted by current and former judges of the High Court. In Re Estate of Ainea Masinde Walubengo (deceased) 2017 eKLR Justice Ali Aroni (judge of the High Court, now judge of the Court of Appeal). stated as follows;
“Having stated as above I am of the view that Section 40 of the Law of Succession Act will apply to the circumstances of this Case. Meaning that the Court will distribute the estate of the deceased according to each house considering the number of children in each unit including the surviving widow.”
Article 27 of the Constitution provides for equality and non-discrimination. The provisions of Section 38 of the Law of Succession Act provide for equal distribution among the children of the deceased. This means Courts must endeavor to provide for the dependants of the deceased in equal measure. In Re Estate of John Musambayi Katumanga – (Deceased) [2014] eKLR Justice Musyoka stated as follows: -
“The spirit of Part V, especially Sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35(5) and 38 is “equally” as opposed to “equitably”. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender and financial status of the children.”
In conclusion, it comes out clearly that the house with more people gets a bigger share of the estate. However, each of the children of the deceased and wife will get an equal share of the estate. This is so because the estate the assets are to be divided into equal units and each unit gets a share of the estate. Within each house, distribution takes place under Sections 35,36,37 and 38 of the Law of Succession Act. How actual distribution should take place varies depending on the nature of the asset and other factors on a case-to-case basis. Some of the suggested outcomes may be: -
- Money in the bank should be withdrawn and shared equally between each unit;
- Land (if a large tract) may be subdivided equally; where there are several pieces, each unit may obtain one piece if they are of comparable value; and
- Rental houses – the administrators may agree to form a management company for collection, maintenance and equal distribution of the net rental income.
The foregoing are mere suggestions, my suggestions, but the final decision is based on Court’s directions and where parties agree it becomes easier.