Case backlog delays end of family property conflicts

Family wrangles, outright greed and shortage of judicial officers such as judges and magistrates are some of the factors blamed for the high number of land succession cases in Kenya.

According to data obtained from the Judiciary, by the closure of last year, there was a backlog of more than 11,000 land cases. Land disputes mostly involve distribution of family property between siblings and co-wives.

Upon investigations and speaking to lawyers dealing with family and property litigations, it has emerged that the disputes are also caused by greed, internal wrangles mostly in polygamous families and incomplete transactions by men who die before concluding deals.

High Court Advocate Wahome Gikonyo notes that the succession cases have resulted in acrimony, bitter wars and fall-outs amongst siblings.

“Some of the succession disputes lead to criminal acts such as murder, robbery with violence and arson to scare and intimidate some family members from demanding a share of their parents’ property. Some siblings feel more entitled than others,” the lawyer says.

EQUALITY

He adds that the backlog has been fuelled by a section of married women who have filed cases challenging the mode of distribution of their parents’ estates.

They sue their siblings for excluding them due to prevailing patriarchal attitudes in most cultures.

“The new constitution awakened even married women to go back to their fathers and claim part of the estate, which previously never used to happen.

"The basis of their argument is on Article 27 of the constitution, which prohibits discrimination. It provides for equality before the law. Article 27 (3) says both men and women should be treated equally,” Mr Gikonyo says.

For instance, Doris Wanjiru was married in 1947. It was not until 2012, 65 years later, that she went to court protesting that her father’s estate was distributed in 1987 to her exclusion.

She cited Article 27 (3) and (4) of the 2010 constitution, which calls for equal treatment of men and women and also stops discrimination on grounds of sex.

CASE DISMISSED
She wanted to revoke the mode of distribution of her father’s estate done in 1987 by her brothers. The estate comprised 13 acres of land but Ms Wanjiru failed to convince Justice John Mativo about the inordinate delay.

“No explanation was offered to court as to why it took over 22 years to realise that the distribution of the estate was unfair. Ms Wanjiru has not explained why she took close to 26 years to raise her interests to the estate,” the judge argued while dismissing her petition.

The court noted that by the time her deceased father distributed his properties, Ms Wanjiru was long married and she appeared before the Kieni District Officer during the confirmation of grants.

The judge noted that the distribution could have been revoked if it would have been found that the procedures followed were defective in substance.

Also, the judge said the grant would have been revoked if there was fraud by making of false statements or making of untrue allegation.

CUSTOMARY LAW

In polygamous families, protests arise because of different number of children in each house.

“Under Kikuyu customary law, the estate of the deceased should be shared equally between the wives (houses). Each woman would later share the property to her children. Courts are yet to declare that aspect of Kikuyu customary law unconstitutional. The new constitution, which talks of equality, is supreme. Courts still uphold it,” lawyer Gikonyo says.

A house could be having two children and the other 10 children, that forms springboard for protest in the polygamous family.

A polygamous family in Nyeri had been embroiled in property row for 10 years, since 2002 to 2012. Francis Muchiri Wairia contended that the estate of his deceased father ought to have been shared out according to the number of children.

On the other hand, his step-mother argued that the property should be distributed according to the number of wives (houses).

The deceased, Wairia Muhoro, died in 1968, and was survived by two wives: Teresia Wambui (first wife) and Alice Wangari (second wife). Teresia had four sons and two daughters while Alice had seven daughters and no sons.

MODE OF PROPERTY DISTRIBUTION
The deceased left 4.6 acres of land in Kagongo, Othaya. Mr Muchiri’s proposed mode of distribution was rejected by the court and the judges of the Court of Appeal held that the estate of a deceased polygamist should be shared according to the number of wives.

In the dispute, the judges of the Appellate Court directed that one portion of the deceased’s land be registered in the name of Alice Wangari and the other be registered in the names of the four sons of the deceased who belong to the first house.

Ms Wangari, through her lawyer, told the court that his step-son, Mr Muchiri, wanted the second house to be discriminated since it only had daughters.

The mode of the distribution ordered by the court, the judges noted, was in accordance with the Kikuyu customs.

However, the judges observed that customary law is always in a fluid state and changes occur due to various factors such as education, the influence of religion and social and economic advancement.

DEPENDANTS
In a separate case, Grace Thoronjo failed to get back a parcel of land she had bought with her own money but was registered in the names of her deceased polygamist husband.

She contended that the parcel of land should not be shared by the second house.

But the court ruled that the land formed part of her husband’s estate and was subject of distribution to other dependants of the deceased in the family during succession.

Ms Thoronjo argued that she purchased the land in an auction and that she never consented to the land being granted to other beneficiaries in the family.

The court heard that at the time of purchasing the land, prevailing Kikuyu customs never permitted women to own land, hence it was transferred to her husband’s name.

NDOLO FAMILY SAGA

Men passing away in the middle of transactions involving their properties has also subjected widows to legal battles.

For instance, the estate of the first post-independence major-general Joseph Ndolo has been under litigation since his death in 1984.

The battle was caused by incomplete transactions which the deceased had commenced with his friend Salvin Kaumbulu. Mr Kaumbulu intended to acquire 3,000 acres of Mr Ndolo’s 9,000-acre Mwani Ranch in Sultan Hamud.

Mr Ndolo died before the sale could be completed and Mr Kaumbulu was yet to be registered as the owner of the land. Mr Kaumbulu’s family took over the ownership battle which is still pending at the court of appeal.