This case is the third in our Women’s Month series on how courts deal with matters involving women. The case includes 13 invisible daughters and a fraudulent attempt by the estate administrator to cut out all the other sons and direct family from inheriting. So when Judge William Musyoka of Kenya’s high court – and the third judge to become involved in the matter – found out, he put his foot down. He referred to the law on succession and to the constitution. Both make clear that discrimination against daughters and wives would not be tolerated. When sons and conniving chiefs tried to prevent daughters and wives from inheriting, the court was obliged to stop it, he said. Because Judge Musyoka bothered to give the papers and previous court orders very close scrutiny, he picked up the problem. Then he insisted that the daughters, along with the widows, had to be involved. And that is why his decision is our judgment of the week.
Right from the start there is a lot about this case that is troubling. And Judge William Musyoka plunges right in. The case concerns the estate of Joseph Mapesa Nakuku who died in 1988. Bernard Mapesa, one of the sons and administrator of the estate, lodged a petition in the matter, saying he was ‘son of the deceased’.
His proposal was that the entire estate should be shared, unevenly, between himself and another son.
Only when the matter was later called in court, did it become clear that the father had married four times and had five sons. Another significant fact also emerged: there were 13 daughters.
Judge Musyoka, the third judge to deal with the matter, was not satisfied with the papers before him. ‘The parties have not done this matter much justice. The facts that they have disclosed are jumbled up.’ However, he managed to piece together from the ‘vague’ information on record that the deceased had married four times and produced ‘numerous children, both sons and daughters.’
‘Curiously,’ he said, ‘while the names of the sons were disclosed, those of the daughters were not.’ All that was known about the daughters is that they were married. The daughters were ignored despite the fact that by the time their father died the Law of Succession Act, treating sons and daughters equally, had already come into force.
Reviewing the papers before the previous judges, Judge Musyoka found that Mapesa, the administrator, said under oath that the estate consisted of just one property. But that turned out not to be the case. In addition, the assistant chief who wrote to the court in 1988, introducing the administrator to the court, did not act in good faith. The chief knew that the deceased had been survived by several widows and children, but he misrepresented the facts to the court, suggesting that the administrator and one other person – who turned out not even to be a child of the deceased – were the only survivors.
In fact, as Mapesa knew well, there were several other living sons. Worse, when the matter was called before a second judge the other sons were present and told the court that the ‘son’ initially identified by Mapese as someone to inherit property, was not even a relative. He was simply a potential buyer of part of the estate.
The judge made much of this series of blatant lies, but became particularly concerned about Mapese’s attempt to conceal from the court the existence of the daughters.
Even though the first judge to hear the matter and try to make sense of it, postponed the case so that certain information should be collected and properly presented to the court, Mapese did not comply with those directions.
When the case was called again, a second judge heard the matter but without any background to its pitfalls. During that hearing, Mapese paraded other individuals as the survivors, claiming they were his brothers. On that basis the court confirmed the distribution grant that Mapese sought.
Eight years later another person, also claiming to be an administrator of the estate, asked for changes to be made to the initial grant and at this point Judge Musyoka presided. He said the application was ‘so confused, convoluted and fundamentally flawed’ that no court could use it as the basis for any grant.
‘Fraud and misrepresentation’
But despite the chaos the judge found grounds for intervention. Mapese had obtained the grant ‘through fraud and misrepresentation’, said Judge Musyoka. Initially he said he was the only child of the deceased, even though some of his father’s wives and his own siblings were alive. He ‘concealed them from the court’. He also passed off someone quite unrelated as a son of the deceased, and hid some of the assets of the deceased from the court. There was also the matter of the widows: they had priority to administer the estate, and Mapese ought to have obtained their consent to his being appointed.
What about the daughters? The father’s estate should not have been distributed under customary law, but under the Law of Succession Act in which no distinction is made between male and female children, nor between married and unmarried children. Instead, the estate should be equally distributed among them all.
The constitution made clear that men and women ‘have the right to equal treatment’ and the position of the daughters in this case was thus ‘disturbing’. ‘None of the parties in the litigation appear to have much regard for the daughters. Their names have not been mentioned by any of the parties.’
[Laws like those in Kenya that say women should have equal inheritance rights help make families better off, better nourished, better educated, more resilient, safer and healthier; Infographic: Landesa]
It seemed the plan was to share the estate among the sons only, ‘to the total exclusion of the daughters’. The parties appeared to cling to the view that daughters were ‘children of a lesser god’, and that their father’s estate should be distributed ‘as if (the daughters) did not exist or were never born or did not matter.’ That was no longer the case, said the judge. ‘Daughters have equal rights with sons when it comes to distribution of their father’s estate, whether they are married or single. They are children of the deceased, just like the sons.’
In this case there was no evidence that the daughters even knew of the existence of the legal dispute. There was no proof that they consented to their exclusion. ‘Certainly, it is not proper to exclude them in the manner that they have been in this matter, and it cannot be said that due process has been observed where such a large constituency of the survivors of the deceased are ignored.’
The judge therefore cancelled the initial grant and ordered that the process start again, this time with all the formalities properly observed.
- Newsletter, Judicial Institute for Africa (Jifa), 22 August 2019