Law Commentaries

When Judges Teach: 10 Succession Law Lessons from Justice W.M. Musyoka’s Ruling

Some judicial rulings do more than resolve disputes: they educate. Justice W.M. Musyoka’s decision in Re Estate of Raphael Charles Makokha (Deceased) [2024] KEHC 12277 (KLR) is a masterclass in succession law, blending clarity with practical wisdom. Far from a dry judgment, it reads like a roadmap for navigating Kenya’s probate system.

Here are 10 essential lessons for law students, junior advocates, and succession law practitioners:

  1. Civil Marriage Endures Until Dissolved

A civil marriage persists until a court issues a decree absolute. If a spouse dies during divorce proceedings, the surviving spouse retains full inheritance rights as a lawful widow or widower.

  1. Late Wills Demand Rigorous Proof

A will discovered after intestate proceedings begin, or even after letters of administration are issued, requires a separate probate cause. The proponent must justify the delay and prove authenticity, preferably with oral testimony.

  1. Polygamous Estates: The Unit System

In polygamous families, the estate splits into "units": one per wife, one per child. A childless widow counts as a single unit, and shares are divided proportionally.

  1. Estate Limits: Death Defines Ownership

Only assets titled in the deceased’s name at death form the estate. Post-death transfers need evidence of the deceased’s pre-death intent (inter vivos).

  1. Post-Death Transfers Scrutinized

Any transfer executed after death hinges on clear proof of the deceased’s lifetime intent. Without it, such actions risk invalidation.

  1. Asset Verification Precedes Confirmation

Administrators must compile a complete asset list before seeking confirmation of grant. Skipping this step is premature and undermines the process.

  1. Oral Hearings Prevent Concealment

Confirmation proceedings benefit from oral hearings with cross-examination to expose discrepancies. Relying solely on affidavits invites manipulation.

  1. Title Disputes Belong Elsewhere

Probate courts can’t resolve ownership or cancel titles. Such matters fall to the Environment & Land Court under Rule 41(3) of the Probate and Administration Rules. 

  1. Intermeddling: A Criminal Line

Transferring estate assets to beneficiaries before confirmation is intermeddling and is a criminal act. Proving legitimacy requires more than a balance of probabilities.

  1. Partial Confirmation Allowed

Courts can approve distribution of verified, uncontested assets without delaying for the entire estate to be finalized.

Why This Ruling Matters

Justice Musyoka’s decision is a must-read for Kenya School of Law students, junior advocates, and anyone passionate about succession law. It’s not just a ruling - it’s a lesson plan, grounded in statute and enriched with practical insight. Bookmark this case, study it, and apply its principles to your practice.

Adapted from: Benson Odiwuor