When a person dies, determining who inherits their property is not always straightforward. A central question in succession practice is whether every asset registered in the deceased’s name forms part of the estate available for distribution. This becomes particularly significant where a surviving spouse claims to have contributed to the acquisition of property registered solely in the deceased’s name.
In Esther Wanjiru Githatu v Mary Wanjiru Githatu [2019] KECA 811 (KLR), the Court of Appeal addressed this question, demonstrating the importance of distinguishing legal ownership from beneficial entitlement before distributing a deceased person’s estate.
As an advocate trainee at MMS Advocates LLP, I consider this distinction essential to effective succession practice. It requires advocates to look beyond the title deed, examine the evidence of contribution and identify the property that legally belongs to the deceased before applying the statutory rules of inheritance.
The Githatu decision: Establishing a beneficial interest
The dispute arose following the death of Ephantus Githatu Waithaka in 2002. The deceased had two wives, Mary Wanjiru Githatu and Esther Wanjiru Githatu, with seven children in the first household and three in the second.
Mary claimed an interest in properties acquired during the earlier years of her marriage. She maintained that she had actively managed the family butchery business and participated in commercial farming, thereby contributing to the income used to acquire the properties. Esther argued that the properties registered in the deceased’s name formed part of his estate and should be distributed among the beneficiaries.
The High Court found that Mary had made non-financial contributions towards acquiring properties purchased between 1968 and 1984. It recognised a resulting trust in her favour and held that her established interest should be excluded from the property available for distribution. The Court of Appeal upheld that decision.
The Court accepted that Mary’s participation in the family business and farming had contributed to the acquisition of the properties. Her interest was not defeated merely because she had not directly paid the purchase price or appeared on the title documents.
The principle is that the property available for distribution must first be identified by determining the deceased’s actual beneficial interest. Registration in the deceased’s name is important evidence of ownership, but it does not necessarily resolve every competing claim to a beneficial interest.
Resulting trusts and non-financial contribution
In Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others [2015] eKLR, the Court of Appeal explained the principles governing resulting and constructive trusts. A resulting trust may arise where the circumstances of a transaction indicate that the holder of legal title was not intended to enjoy the entire beneficial interest. Ordinarily, this may occur where one person provides the purchase money for property registered in another person’s name.
In Githatu, the Court recognised that Mary’s indirect contribution through business management and farming generated income that enabled the deceased to acquire property. The absence of direct monetary payment by Mary did not defeat her claim.
However, the decision does not establish that every spouse automatically acquires half of property registered in the other spouse’s name. A beneficial interest must be established through the applicable legal principles and evidence. The nature, extent and connection of the contribution to the property in dispute remain important.
This approach protects legitimate proprietary interests without converting marriage alone into conclusive proof of equal ownership.
Constitutional equality and matrimonial property rights
Article 45(3) of the Constitution of Kenya, 2010, provides that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at its dissolution.
In JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) [2023] KESC 4 (KLR), the Supreme Court considered equality in the context of matrimonial property. The Court affirmed the significance of contribution in determining proprietary entitlement, recognising that contributions may be direct or indirect, financial or non-financial.
The constitutional principle of equality therefore requires the law to recognise the contributions of spouses fairly. It does not, however, automatically confer a 50:50 beneficial interest in every asset acquired during marriage.
It is equally important to distinguish matrimonial property proceedings from succession proceedings. Division of matrimonial property between living spouses raises different questions from the distribution of a deceased person’s estate. Where a surviving spouse claims that property registered in the deceased’s name was partly theirs, the advocate must establish the nature and legal basis of that proprietary claim before proceeding to distribute the estate.
Identifying the estate under the Law of Succession Act
The Law of Succession Act, Cap. 160, provides the principal framework for administering deceased estates. Section 3 defines free property as property which the deceased was legally competent to dispose of during their lifetime and in respect of which their interest has not been terminated by death.
This definition makes it necessary to establish the deceased’s actual interest in disputed assets. Where another person proves an enforceable beneficial interest, that interest must be considered before the property available for distribution is determined.
In Githatu, the Court of Appeal upheld the exclusion of Mary’s established interest before distribution of the remainder under the Law of Succession Act. The decision illustrates why administrators should not assume that every asset registered in the deceased’s name is automatically available for distribution in its entirety.
Where ownership is contested, the appropriate legal and procedural steps should be taken to determine the claim rather than distributing the property as though the dispute did not exist.
Distribution in polygamous families: Section 40
Where a person dies intestate after marrying more than once under a system of law permitting polygamy, section 40(1) of the Law of Succession Act provides for the initial division of the personal and household effects and the residue of the net intestate estate among the respective houses according to the number of children in each house, adding each surviving wife as an additional unit.
Section 40(2) provides that distribution within each house is governed by sections 35 to 38 of the Act.
In Githatu, the Court of Appeal applied this framework after determining the surviving spouse’s beneficial interest in the disputed properties. The decision demonstrates that identification of the estate and distribution among beneficiaries are separate legal questions.
Similarly, in Ramaita & another v Ramaita [2025] KECA 300 (KLR), the Court of Appeal considered the application of section 40 in a polygamous estate. The statutory framework must be applied to the estate established to belong to the deceased, rather than used as a substitute for determining genuine disputes over ownership.
Accordingly, an advocate should first establish which assets and beneficial interests form part of the deceased’s free estate and then determine how that estate should be distributed among the beneficiaries.
Evidence and practical considerations for advocates
A claim to a beneficial interest must be supported by evidence. Depending on the circumstances, relevant material may include purchase agreements, payment records, bank statements, business records, farming records, correspondence and testimony from persons with direct knowledge of the acquisition and management of the property.
In Githatu, the Court considered evidence that Mary managed the family business and participated in farming, together with testimony from witnesses familiar with the family’s activities. The evidence established a sufficient connection between her contribution and the acquisition of the properties in dispute.
For advocates and administrators, the practical lesson is to investigate competing proprietary claims early. The mere assertion that a spouse contributed to property does not automatically establish a particular share. The evidence must be assessed against the applicable legal principles.
Where the claim is disputed, the advocate should identify the appropriate procedural route for its determination, whether within the succession proceedings or through separate proceedings concerning proprietary rights. Administrators should also exercise caution before distributing property whose ownership remains genuinely contested.
This approach protects the rights of surviving spouses while safeguarding the interests of other beneficiaries and promoting orderly estate administration.
Conclusion
The decision in Esther Wanjiru Githatu v Mary Wanjiru Githatu reinforces a fundamental principle of succession law: fair distribution begins with determining what actually belongs to the deceased.
The Law of Succession Act governs the administration and distribution of estates, but its application must be preceded by proper identification of the deceased’s beneficial interests where ownership is disputed. Article 45(3) of the Constitution reinforces equality between spouses, while the applicable principles of trusts and contribution guide the determination of proprietary claims.
For me as an advocate trainee, the decision highlights the importance of evidence-based legal analysis in succession practice. A title deed remains important, but it may not answer every question of beneficial ownership. By examining the legal and factual position before distribution, advocates can help protect legitimate interests, reduce avoidable disputes and facilitate the lawful administration of estates.
At MMS Advocates LLP, we recognise the importance of a careful and principled approach to succession, estate administration and property disputes.
This article is intended for general legal information and does not constitute legal advice on any specific matter.
For legal assistance on succession, estate administration and property disputes, please contact MMS Advocates LLP.
References
- Constitution of Kenya, 2010, Article 45(3).
- Law of Succession Act, Cap. 160, sections 3, 35–40.
- Esther Wanjiru Githatu v Mary Wanjiru Githatu [2019] KECA 811 (KLR), Court of Appeal.
- Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others [2015] eKLR, Court of Appeal.
- JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) [2023] KESC 4 (KLR), Supreme Court.
- Ramaita & another v Ramaita [2025] KECA 300 (KLR), Court of Appeal.
