The High Court in Bomet has ruled that the estate of a deceased man who had two wives cannot be divided equally on the basis of Kipsigis customary law, holding that Kenya’s Law of Succession Act must govern the distribution of an intestate estate.
Justice R. Lagat-Korir directed that the estate of the late Stephen Kiplangat Towett, who died without leaving a will on May 24, 2018, be distributed in accordance with Section 40 of the Law of Succession Act.
The provision sets out how the estate of a deceased person who was married under a system permitting polygamy should be distributed, taking into account the number of children in each household and treating a surviving wife as an additional unit. The decision brings to a close a long-running succession dispute between Towett’s two families involving land, residential and commercial property, livestock, bank assets and other property.
Towett’s first wife, Taprantich Towett, whom he married under Kipsigis customary law in 1945, died in 1966. He later married Ludiah Chepkosgei Towett in a Christian ceremony at the African Inland Church in Kimwolet. The couple lived together until Towett’s death and had several children.
The dispute arose after Sammy Chelule Langat, a son of the second household, petitioned the court for letters of administration. His brother, Richard Cheruiyot Langat, from the first household, objected to the proceedings, arguing that he and his siblings had not been properly involved.
A key issue before the court was whether Towett’s estate should be treated as that of a man who was in a monogamous or polygamous marriage at the time of his death.
The first household argued that Taprantich had died before Towett married Ludiah and that the later marriage was conducted under Christian law. On that basis, they contended that Kipsigis customary law should not determine the distribution of the estate.
The second household, however, maintained that the deceased had established two family units and that, under Kipsigis customary law, the two houses were entitled to separate recognition. Justice Lagat-Korir ultimately held that the estate should be treated as a polygamous estate for purposes of succession.
The judge relied on Section 3(5) of the Law of Succession Act, which recognises, for succession purposes, a woman married under a system permitting polygamy, together with the children of that union, even where a subsequent marriage was celebrated under a statutory system.
The first household comprised six children, while the second household had seven children and the surviving widow, Ludiah. Consequently, the first household was treated as having six units, while the second household had eight units for purposes of the initial distribution.
The court rejected the proposal that the estate be divided equally between the two households according to Kipsigis customary law. “The Law of Succession Act provides a comprehensive statutory framework for distribution of intestate estates and takes precedence over customary law,” the court held.
Another major point of contention was the ownership and occupation of the family homestead on LR No. Kericho/Chemagel/133.
The first household argued that the property was the matrimonial home of Towett and Taprantich and should therefore pass to her children. The second household maintained that Ludiah, as the surviving widow, was entitled to remain in the home where she had lived with Towett for several decades.
The court found that the property had originally been established as the matrimonial home of Towett and his first wife before his subsequent marriage. Justice Lagat-Korir also considered evidence concerning Kipsigis customary practice, under which each wife in a polygamous marriage traditionally has her own house and homestead.
However, the court took into account Ludiah’s long occupation of the property and her circumstances as the surviving widow. She had lived in the home since her marriage to Towett and had told the court that, given her age, she could not be moved from the property.
The judge therefore granted Ludiah a life interest in the portion allocated to her. Upon her death, the matrimonial home is to revert to the first household, with the property to be occupied by Philip Langat, the last-born son of Taprantich.
The court also addressed the position of Towett’s daughters, stressing that female children cannot be excluded from inheritance merely because of their gender. Justice Lagat-Korir referred to Article 27 of the Constitution, which guarantees equality and protection from discrimination.
The judge found that excluding daughters who had not received property comparable to that given to them during their father’s lifetime would be inconsistent with the constitutional principle of equality.
