I am eighteen and needy

Anthony Thiong’o

Question:

I am a 26-year-old woman born out of wedlock. My father was already married to another woman when he met my mother. He, however, abandoned my mother who struggled to raise me on her own.

When I turned 18 years old, I got in touch with my father through phone and he promised to meet me. He never kept his promise. Last year I decided to visit him. The meeting went well and I met my relatives and discovered my roots. My father then promised to contact me after two weeks so we could become better acquainted with each other. It is now six months and he has failed to keep his promise.

I am fed up and angry. I am currently married with one child. My mother was unable to pay for my university education yet my father is wealthy. Do I have a right to demand that my father pays my college education or am I too old? Do I also have a right to inherit from my father’s estate?

Answer:

Though you were born out of wedlock, your father appears to have acknowledged you as his child. The Children’s Act provides that where a child’s father and mother have never married, the father may acquire parental responsibility by acknowledging the child. The Act, however, defines a child as any human being under the age of 18. Strictly speaking, therefore, you do not have a right to claim for maintenance from your father, as you are no longer a child. Your claim for maintenance should have been made when you were under 18.

But Section 28 of the Act offers a ray of hope. Under this section, the court may extend parental responsibility in respect of a child beyond the date of the child’s 18th birthday. You could, therefore, apply to the court for an order for your father to maintain you by paying for your university education.

In considering your application for extension of parental responsibility, the court shall need to be convinced that indeed, there exist special circumstances with regard to your welfare that will necessitate the extension. You will need to bring to the court’s attention the fact that your mother struggled to raise you up on her own and was thus unable to afford your university fees; the false promises your father made to you and the fact that he can afford to pay the university fees.

An example of a similar case is the one of BG–versus-MG reported in 2008 Kenya Law Reports. In the case, Lady Justice Martha Koome granted an order extending the parental responsibility to the father of a child and ordered the father to pay the child’s college education. The Judge, however, ordered the child to look for an institution in Kenya that was within the means of the father.

The child of a deceased person is entitled to inherit from the parent’s estate, whether or not the child was born out of wedlock. You are, therefore, entitled to inherit from your father’s estate. You would, however, need to prove that he is your father before the court can make provision for you from your father’s estate. The best proof would be to take the form of a birth certificate showing your father’s name as well as other documentary proof such as letters or pictures.

Question:

I am a 24-year-old man who is worried about my late father’s estate. My mother passed away when I was still young and my father re-married. My father and stepmother were not blessed with any children. My father passed away in 2007 leaving behind a will. He had shared out his wealth equally between my stepmother and myself. We carried out his wishes and my stepmother and I now have title document to our respective parcels of land.

But my stepmother is now planning to get married to another man. I consider this to be a betrayal to my father especially since he left her so much property. Does she lawfully deserve to keep her share of my father’s estate in view of her impending marriage to another man?

Answer:

The answer depends on the exact wording of your father’s will. If the will irrevocably gifted your stepmother half of your father’s estate, then your stepmother is entitled to keep her share notwithstanding the fact that she is remarrying. On the other hand, the will may have provided for the gift to be conditional to her not remarrying. If so, your stepmother would not be entitled to keep her share of your father’s estate if she remarries. That share should revert to you as the sole surviving child.

The Law of Succession Act provides that where a man dies without leaving a will, the widow shall be entitled to a life interest in the deceased’s estate. If, however, the widow remarries, that interest shall determine upon her re-marriage to any person. In other words, when a widow remarries, she relinquishes her right to any property she inherited from her deceased husband. That property then passes on to the surviving children of the man.

Lessons:

The High Court may extend a person’s parental responsibility beyond a child’s 18th birthday if it is of the opinion that there exist special circumstances with regard to the child’s welfare that necessitate the extension.

Ordinarily, when a widow remarries, she relinquishes her right to any property she had inherited from her deceased husband. The property then passes on to the surviving children of the man.

The writer is an advocate of the High Court of Kenya.

{thiongoa@yahoo.com}