Why do succession disputes take so long to be settled?
The Strathmore Law School held a lecture on the Law of Succession on Thursday, February, 20, 2020 delivered by Hon. Lady Justice Martha Koome. This was part of the school’s public lecture series geared towards students and faculty interacting and engaging with key players in various legal fields.
Justice Koome dealt with key issues regarding succession in Kenya and tackled: Why succession disputes take so long to be settled; is the problem the law, the courts, the beneficiaries or the deceased? Justice Koome has over seventeen years of experience as a member of the bench, therefore, the audience were fortunate to engage with her in an interactive Q and A session.
The Law of Succession is the branch of law that deals with inheritance to property. The concept of inheritance is universal in all societies irrespective of their cultural or historical background, ideology, religion or legal system. This arises out of a basic philosophical consideration: that man needs to acquire some property for his own sustenance to satisfy the desire for self-actualisation and in order to lead a good life generally. Inheritance is one of the means through which property is acquired; the fact that man dies and leaves behind his property that should continue to be owned by those who are left behind, and the fact that man instinctively wants to have some control over his property even upon his demise.
The law of succession governs the devolution of property from a deceased person to a new owner. It defines the patterns of devolution and establishes the institutions and structures that control the devolution, so as to ensure a peaceful and orderly distribution of the estate of the deceased.
Law of Succession Act
According to Justice Koome, owing to the contradictions inherent in a multi-cultural society like ours, there has been a great deal of conflict in the application of the Law of Succession Act to some people and in certain areas and so exceptions have had to be made in order to give way to the application of other laws in these exempted areas and persons. The ultimate aim in passing the Law of Succession Act was to provide a universal law of succession applicable to all persons resident in Kenya; this ideal has not been fully achieved. There remain certain areas or situations to which the Act does not apply.
The Law of Succession Act embodies the African customary law of succession the intention being to provide the Kenyan people with a statute that translates their customary beliefs and practices into law. The Act embraces certain concepts which are purely African in nature and which are meant to reflect the ‘Kenyan-ness’ of the statute. There is, for example, reference to ‘wives’ and distant relatives in relation to the provisions pertaining to dependants. This is in recognition of the concepts of polygamy and the extended family respectively, all common in traditional African communities.
She gave an example of the Ameru Customary Law which recognises the patrilineal system for inheritance of land. Women do not inherit land on their father’s side: they play their part in the family or clan in which they marry: the judge sought to give her opinion, “I have set out the position as regards inheritance of land by daughters. Generally they cannot inherit land. Such customary law sounds discriminatory but the Constitution of Kenya permits such limited discrimination. Section 82(1) of the Constitution.”
As read and underst8 the above-mentioned subsections of section 82 of the Constitution regarding the exclusion of daughters from inheritance of land is ‘sanctioned’ by the Constitution when a court is applying customary law in regard to devolution of property on death of the owner of that property.
This article was written by Agage Benjamin, a third-year Bachelor of Laws student.
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