The High Court in Nyeri ruled that children cannot inherit their step-parents’ property unless they prove that the guardian voluntarily assumed permanent parental responsibilities.
On Tuesday Justice Teresiah Matheka said the law of succession recognises that a man can take in a child who is not biologically his.
That would however not turn that child into a son or daughter and a beneficiary to his property unless there is an adoption order.
Where the status of child is disputed, it is upon the child to prove that the step-father took him or her in as his own, the court added.
The judge made the ruling in the case in which Mr Paul Wachira, a Nyandarua resident, was seeking to inherit the property of his step-father.
The court found that before he died, Mr Samuel Maina Mbora did not voluntarily assume permanent parental responsibilities of Mr Wachira, bringing to an end the 15-year dispute.
Mr Wachira wanted to be listed as an inheritor in the estate of Mr Mbora who was married to his [Wachira’s] mother for about 10 years.
He argued that since his mother, Christine Muthoni [who also died], was married to Mr Mbora, he automatically became an heir.
Mr Wachira also produced a document dated August 28, 2008 indicating that his mother had been appointed next of kin by Mr Mbora.
“It was upon Mr Wachira to produce the evidence that apart from simply being his mother’s husband, Mbora was his stepfather. Perhaps his maternal relatives would have supported his claim, or neighbours on the land where the two are buried,” Justice Matheka said.
The properties in the row are a parcel of land, sacco savings, some money in a bank and personal effects.
According to a May 10, 2004 letter from Nyeri District Commissioner to the Public Trustee, Mr Mbora was survived by his mother Grace Wanjiru Ndiritu and no children.
However, on December 3, 2008 another letter from Nyandarua DC to the trustee indicated that Mr Mbora had two sons, Wachira and John Nderitu, who was dead.
Mr Mbora’s mother then filed an affidavit arguing that Mr Wachira was not her biological grandson and therefore was not entitled to any property.
Ms Ndiritu said Mr Wachira was never accepted as Mr Mbora’s son because he was not circumcised at her son’s home.
She added that the document produced by Mr Wachira may have been obtained through fraud.
“It would only be fair that he has access to the portion of the land his mother is buried [in]. That is all that this court can grant,” the judge said.