The Kenyan Law on Adopted, Legitimated and Illegitimate Children

Adopted, Legitimated and Illegitimate Children

Previously intestacy provisions in English succession law statutes only applied to legitimate children, whether of the deceased or any other relative. African customary law and Islamic law generally provide only for the legitimate children of the intestate. The Law of Succession Act has modified the position and provides for adopted, legitimated and illegitimate children.

 

(a)  Adopted children

For the purpose of entitlement under the rules of intestacy, an adopted child is deemed, by virtue of sections 171, 172, 174, 175 and 176 of the Children Act, 2001, (especially section 174 on Intestacies, wills and settlements)related to the adopted parent and not the natural parental. For the purpose of determining whether an adopted child was living at the date of the intestate’s death, the adopted child is treated as having been born on the date of the adoption. An adopted child cannot therefore claim on the intestacy of a natural parent, but takes on the intestacy of the adoptive parent and other relatives by adoption, such as grandparents, brothers and sisters, and so on. Likewise, if the adopted child dies intestate, the child’s adopted parents, and not the natural parents, will be capable of benefiting under the rules of intestacy- as will brothers and sisters, grandparents and so on by adoption.             

According to the Court of Appeal in WillingstoneMuchigiKimari vs. Rahab Wanjiru Mugo NairobiCACA No. 168 of 1990 (Gachuhi, Muli and Akiwumi JJA) a child informally adopted by a female deceased person is not a child for the purpose of the succession to the estate of such deceased person. Section 3(2) of the Law of Succession Act only caters for children who have been recognised by a male person as his own or whom he has voluntarily assumed permanent responsibility. 

 

(b)  Legitimated children

A child is legitimated by the subsequent marriage of their parents. Legitimated children are deemed to have been born legitimate and can therefore take on intestacy in the same way as any legitimate child (Section 3 of the Legitimacy Act Cap 145).

 

(c)  Illegitimate children

The definition of child in section 3(2) of the Act includes an illegitimate child, that is: a child born to a female person outside wedlock, a child whom a male person has recognised or in fact accepted as his child or for whom he has assumed permanent responsibility. The Court of Appeal in WillingstoneMuchigiKimari vs. Rahab Wanjiru Mugo, stated that the definition in section 3(2) of a child whom the deceased in fact had accepted as his own or for whom the deceased had assumed permanent responsibility only applies to a child whom a male deceased person had accepted or assumed permanent responsibility over. 

 

 As regards paternity section 118 of the Evidence Act is a guide. The provision states that  the fact that a child was born during the continuance of a valid marriage between the mother of the child and any man, or within two  hundred and eighty days after its dissolution, the mother remaining unmarried, should be taken to be conclusive proof that the child is a legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when the child would have been begotten. Under section 3(2) of the Law of Succession Act, the child has the same inheritance rights as the legitimate children of the intestate. 

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