Ask A Lawyer: How is an intestate estate distributed in cases where the deceased was polygamous?

Response:

Section 40 of the Act provides that in cases of polygamy, the deceased’s personal and household effects and the residue of the net intestate estate should be divided among the houses according to the number of children in each house but adding any wife as an additional unit to her children.
 

Such that if X had 2 wives, A and B, with A having 3 children and B having 4 children, the property would be distributed among a total of 9 units, taking into account the foregoing provisions, such that the ideal ratio would be 4:5. The rationale is that house A has a total of 4 units, while house B has a total of 5 units.
 

However, the Court of Appeal in the case of Rono v Rono (2005) eKLR noted that equity is not necessarily equality, such that the Court would consider each case on its facts, including the peculiar needs/positions of each child in each house, e.g. a young or yet-to-be educated child would probably require a greater share than a child who is well settled in life.