A child born by a widow more than nine months after her husband’s death is not entitled to inherit a share of the deceased’s property, the High Court has ruled.
Lady Justice Lucy Gitari held that such a child 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 because he had not taken them as his own and was not maintaining them before he passed away.
Justice Gitari made the decision while ruling on a succession dispute between Milka Wanjiku and her step-mother, Rose Wangechi, over the distribution of the estate of Wandimu Munyi, who died in 1985.
In the case, Ms Wangechi wanted three children that she bore after Mr Munyi's death be listed as beneficiaries of the deceased’s estate, including a 22-acre piece of land in Mwea.
Also in contention was an undisclosed amount of money given by the National Irrigation Board (NIB) for three acres acquired for construction of Thiba dam.
Ms Wanjiku testified that the deceased had two wives -- her deceased mother Agnes Muthoni (first wife) and Ms Wangechi (second wife).
The deceased had three children with the first wife and only one child with Ms Wangechi.
After his death, Ms Wangechi sired four other children (three daughters and one son) between 1988 and 2008, whom she wanted to inherit the deceased's estate.
But Ms Wanjiku, the step-daughter, argued in court that the four were not the rightful beneficiaries of her father’s estate by virtue of having been born after his death.
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 plus Ms Wangechi.
“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 Justice Gitari.