‘Illegitimate’ children have right to property

By Harold Ayodo

Nairobi, Kenya: It has become the norm for women to emerge with clandestine babies with paternity claims after the deaths of prominent personalities.

A section of the society criticises clandestine lovers who spill the beans for allegedly embarrassing ‘first’ families in times of grief.

Majority of the women even appear at funerals with babies born out of the extra-marital affairs, and often demand acceptance to guarantee property inheritance.

The Law of Succession Act provides that children born out of extra-marital affairs are heirs of their biological fathers. The Constitution adds a fresh twist as Article 53 provides that a child’s best interests are of paramount importance in every matter concerning the baby.

Married men

Consequently, cases of women in romantic relationships with propertied married men wallowing in poverty after the death of their lovers are history.

The mistresses who know their rights can move to court with evidence of paternity and prove parental responsibility that the departed paid for their monthly rent, child upkeep and financial maintenance.

It is mainly for property inheritance reasons that most of the mistresses move to court seeking orders to perform DNA tests to prove paternity with departed investors. It is for similar reasons that women are increasingly filing paternity suits at the Children’s Court even when biological fathers of their babies are still alive.

Moreover, refusing to undertake paternity tests is not easy as judges and magistrates would issue orders directing that the DNA tests are in the best interest of the child.

Most of the women who battle for the estate with the legal widow often file suits on behalf of their children with the deceased man. According to judicial precedents, courts often order that children born of extra-marital affairs have shares in the estate of their late biological fathers.

Most judges who have ruled on the cases recently rely on a precedent set by the Court of Appeal in the case of John Mubea vs Milka Nyambura of 1990. The appellate judges ruled that children of an adulterous union are recognised for the purposes of succession and can inherit property.

Departed

Legally, it does not matter whether the departed wrote a will on how his property should be divided among children of his legally wedded wife.

The mother of his ‘illegitimate’ biological children can move to court and contest the will and seek orders for her children to be included as heirs.

The court will mainly require the mistress to prove beyond any reasonable doubt that the deceased fathered her child. The law also provides that even a child in the womb has the right to inherit property of his/her departed father.

Judges in succession disputes mainly rely on provisions of the Law of Succession Act, which recognises inheritance rights of children born out of wedlock.

Inheritance

The courts may further decide the portion of property the “illegitimate” child may inherit, even if the father was a polygamist.

Even with the provisions for children born out of wedlock to inherit property entrenched in succession law, the law will not come to the aid of mistresses who sleep on their rights. The women must move to court and lay claim on behalf of their babies.

Therefore, mistresses who have shied away from demanding property rights of their babies born out of wedlock are regretting their relationships.

— The writer is an advocate of the High Court.