Children born by a widow more than nine months after the husband’s death are not entitled to inherit a share of the deceased’s property, the High Court has ruled.
Justice Lucy Gitari has held that a child born posthumously to a widow not less than nine months upon the death of the husband ought to be excluded in succession.
Such a child, the judge said, cannot be regarded as having survived the deceased according to Section 29 of the Law of Succession Act, Cap 160.
The judge also stated that such children cannot be regarded as dependants of the deceased’s estate because the deceased had not taken them as his own and was not maintaining them before he passed away.
She made the decision while ruling on a succession dispute between a woman, Ms Milka Wanjiku, and her step-mother, Ms Rose Wangechi. The two were fighting over distribution of the estate of Wandimu Munyi who died in 1985. He was father to Ms Wanjiku and husband to Ms Wangechi.
In the case, Ms Wangechi wanted three other children that she bore after the husband’s death be listed as beneficiaries of the deceased’s estate which included a 22-acre land in Mwea.
Also in contention was an undisclosed amount of money given by the National Irrigation Board for a three-acre land acquired for construction of Thiba dam.
Ms Wanjiku testified that the Wandimu two wives — her dead mother Agnes Muthoni (first wife) and Ms Wangechi (second wife).
The court heard that Wandimu had three children with the first wife and only one child with Ms Wangechi.
After his death, the second wife bore four other children — three daughters and one son — between 1988 and 2008, who she wanted to inherit Wandimu’s estate.
But the step-daughter confronted the court with the question of whether children born posthumously are entitled to inherit her father’s estate.
Ms Wangechi said she wanted all the eight children to share the land equally since they were born and lived on the same land.
But in her ruling, Justice Gitari ordered that the deceased’s estate be shared in five portions among the four children he had sired in his lifetime and Ms Wangechi, the widow.
“The (other) four children are excluded as beneficiaries. The distribution should be in accordance with the number of children. The widow is an additional unit,” said the judge adding that her decision on distribution of the estate is according to Section 40 of the Law of Succession Act.
Justice Gitari also ordered that the land be surveyed to ensure that each beneficiary’s portion has access to the water carnal.
She also said the money for compensation from NIB shall be shared equally by the beneficiaries.