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An unmarried woman in Nairobi has lost a bid to restrain her four sisters from inheriting their father’s assets on the basis of their marriage.

In a judgment rendered by the Court of Appeal yesterday, Peris Wanjiru Njoroge was barred from solely inheriting her father’s estate on the basis she was the only daughter of the late Murang’a businessman Njoroge Gitau.

Appellate judges Daniel Musinga, Imaana Laibuta and Mwaniki Gachoka, however, upheld the High Court’s decision that declared all five daughters of Gitau are entitled to share their father’s estate equally whether married or not.

While dismissing Wanjiru’s petition, the Court held that High Court Judge William Musyoka did not err in law by finding that all the daughters of the deceased were entitled to a share of the properties irrespective of their marital status.

“It is discriminatory and unconstitutional to suggest that married daughters of a deceased have no right to get a share in their father’s estate. Such submission has no place in modern society. We find and hold that High Court judge did not err and this ground of appeal fails,” the judges ruled.

Disinherit sisters

Wanjiru lodged an appeal before the court seeking to disinherit her four sisters the entire estate of their father on the basis she was unmarried.

The businessman who died 40 years ago had five daughters but had no son. At the time of his death, Gitau’s daughters were Wanjiru, Waithera Ngugi, Wanjiku Kigotho, Wangari Kibunyi and Wambui Ndirangu.

According to Wanjiru, by the time their father died, she was the only daughter who was unmarried and had a son and is entitled to inherit the estate adding that it is against the Kikuyu customary law for married daughters to claim the property of their father.

“I am the sole beneficiary of the estate of my father on the basis that my other four sisters were married,” Wanjriu told the court.

She also claimed that her son William Gitau Maina should be the sole beneficiary of the deceased’s estate by virtue of being the only child of an “unmarried daughter” of the deceased.

But in their decision, the Court of Appeal judges stated that even though Wanjiru was not married, it does not give her rights to the estate of the deceased to the exclusion of her sisters.

“Such a customary practice, even if it was proven, has no place in the current legal dispensation as the High Court Judge rightly observed,” the judges said.

Marital status

The court ruled that all the daughters of the deceased were dependents of his estate, irrespective of their marital status and therefore are entitled to a share of the properties.

“The High Court Judge, cognizant of and based on the principle of equality envisaged in the Constitution of Kenya, 2010 gave orders for the administration of their estates to proceed as far as possible in accordance with the Law of Succession Act. Article 27 of the Constitution prohibits any form of discrimination on the basis of race, sex, marital status, or culture. Under Article 27, the people of Kenya did away with discriminatory practices such as those advanced by the appellant, that married daughters should not be considered in the distribution of the estate of a deceased person because they are married,” the judges ruled.

“ It is important to note that, in this appeal, we are not dealing with a dispute between daughters and sons. It is common ground that the deceased had no sons. This is a case where one daughter is claiming the entire estate to the exclusion of her sisters on the basis that she was unmarried. Such a claim has no basis in law or in fact.”

Succession act

The court however noted that even though the deceased died before the promulgation of the law of Succession Act, the distribution of the estate should now proceed so far as possible in accordance with the provision of the act.

The judges upheld the High Court’s decision to disregard Wanjiru’s return to her father’s home and her claims of being unmarried as a basis for her to inherit the whole estate to the exclusion of her sisters.

“Even if she did prove that she was not married, it would not elevate her to a different pedestal from her sisters as the law of succession provides for all children of the deceased person as dependents, despite their marital status, to benefit from his or her estate,” the judges said.

While dismissing her appeal, the judges found that Wanjiru was “at some point married, and that there was no proof of her having been divorced.”

The judges upheld justice Musyoka’s finding that the entire estate of Gitatu should be shared equally among his daughters.