The court in Re Estate of Samuel Maina Mbora (Deceased) [2019] eKLR has held that where a step child desires that a court recognises him as a child of a deceased man, it is upon such a child to prove that the deceased took him in as his own child.

The facts of the case are that, upon the demise of Mr. Samuel Maina Mbora, the Public Trustee filed Summons for confirmation of Grant indicating that the deceased was survived by his mother and two sons; John Nderitu Maina (deceased) and Paul Wachira Maina (“Paul”). The Public Trustee proposed that Paul be made the sole beneficiary of the deceased’s entire estate.

The Mother of the deceased protested the proposal on the grounds that, Paul was not a son of the deceased.

Paul argued that he was a son of the deceased on grounds that; the deceased married his late mother, he lived on the land where the deceased and his deceased mother were buried; he attended the neighbourhood school; the deceased had appointed his deceased mother as his next of kin whom he described as his wife and the area assistant chief recognised Paul as the deceased’s son.

Further, Paul placed reliance on Gikuyu customary law which provided that the marriage of Paul’s mother to the deceased made the deceased his legal father as was stated in Allot N. Allot Restatement of African Law: 2 The law of Succession with reference to “Illegitimate children” where the author states that‘

A mother is one of the guardians of her illegitimate children. The male co guardian being her own father (or in his absence, her eldest brother). Note the natural father of the child has to pay the pregnancy compensation. If the mother should subsequently marry, her husband becomes the co guardian, who is regarded as the children’s father for all purposes, including the inheriting of his property’.

The Court upheld the Protest and held that Paul had failed to adduce evidence that the deceased had voluntarily assumed permanent responsibility for him. Further, the court noted that where a man takes a child who is not his biological child and accepts him as his own, it does not turn that child into a son or daughter but into a beneficiary to the (deceased’s) estate, unless there is an adoption order.

The legal import of this decision is that unless a step-child is legally adopted, they will not automatically inherit the deceased’s estate under section 38 of the Law of Succession Act.

 Section 38 of the Law of Succession Act provides that,

‘Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.’

Please contact us at Info@cfllegal.com should you require further information and legal assistance on adoption processes, succession and related matters.

The full decision can be found here