This section gives you details on the Kenya law of succession.Below are some topics and a comprehensive introduction to the Kenya law of succession:

An Introduction to the Kenya law of succession
The Kenya law of succession prescribes the rules which determine what ought to happen to a person's estate after his or her death. It is also referred to as the law of inheritance i.e. transmission of property rights from the dead to the living. Most of the dependants are family members but this is not an aspect of family law. This area of law deals with the transmission of property from the dead to the living. Inheritance is common in all human societies and is a concept of universal application. It is driven by the desire to acquire property. It is one of the ways of acquiring property because when a person dies, the right to enjoy property dies with him.

The rules of succession identify the beneficiaries entitled to succeed to the deceased's estate and the extent of the benefits they are to receive. The Kenya law of succession determines the different rights and duties that persons (for example, beneficiaries and creditors) may have in a deceased's estate. It forms part of private law.

Upon death, the estate or the property of the deceased has to be taken care of, managed, administered and or distributed. Often children under 18 are left behind with no relatives or with ruthless relatives who end up taking advantage of the poor kids. In order to ensure that all the legitimate beneficiaries of the deceased person’s estate are protected.The Kenya Law of Succession has made a provision that sets out a list of persons who should take charge of the estate of a deceased person. The Act then goes ahead to give a guide or a list of preference to be given to certain persons to administer the estate where the deceased died intestate (without a Will). This way, it is hard for unscrupulous persons to be appointed to manage the estate of a deceased.

The main function of the Kenya law of succession is to provide mechanisms for the transmission of property from the deceased to those who survive him. It involves:

(a) Identifying the legal claimants who can claim the property i.e. who are the rightful claimants

(b) The procedures of which such rightful claimants or dependants succeed to the property of the deceased i.e. what steps they need to take so as to acquire the property of the deceased.

(c) Mechanisms for dispute resolution are provided so as to resolve any conflicts between persons who claim to be rightful claimants.

The Office of the Public Trustee was created to facilitate performance of duties related to custodianship and administration of deceased’s estates and minors’ trusts. The Administrator General’s Department can be summed up as caring and protecting the property of disadvantaged or vulnerable citizens.
Under Section 34 of the Kenya law of Succession, a person is deemed to die intestate in respect of all his free property of which he has not made a Will which is capable of taking effect. This simply means that the affairs of the property he/she leaves behind will be taken care of by a person appointed by the Court as an administrator.

Under Section 66 of the Kenya law of Succession Act, when a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference:
Surviving spouse or spouses, with or without association of other beneficiaries (b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by the Law of Succession (c) the Public Trustee and (d) creditors.

The most common administrators are the spouse or the other beneficiary. The public trustees and the creditors are rarely in the shoes of the administrators.
The Public Trustees Act of Kenya governs the procedure to be followed in the event the next person in the preference list is the public trustee.
Under Section 6 (1), the Public Trustees Act of Kenya where the Public Trustee has been informed of the death of any person in Kenya and has been requested to take action in respect of the deceased's estate by any person appearing to have a legitimate interest in the succession to, or administration of the estate, the Public Trustee shall cause further inquiries to be made as to the estate of the deceased. If it appears to the Public Trustee as a result of inquiries as to the estate of a deceased person that:
- the person died intestate, the deceased having made a will devising or bequeathing his estate or any part thereof, has omitted to appoint an executor, the person or persons named as executor or executors in the will of the deceased are dead or have renounced probate thereof or otherwise are unable or unwilling to act,
- probate of the Will of the deceased or letters of administration with the Will annexed to the deceased's estate has or have not been obtained within six months from the date of the death of the deceased, the deceased has appointed the Public Trustee as an executor of his will, the whole or any part of the estate of the deceased has been left unadministered and the executors of the will of the deceased to whom probate has been granted, or the persons to whom a grant of letters of administration to the deceased's estate has been made, are dead or otherwise are unable or unwilling to complete the administration of the estate, he may apply under the Law of Succession Act to the court for a grant of representation and the court shall, except for good cause shown, make a grant of representation to the Public Trustee.

Where the Public Trustee has been requested in writing by the executor or administrator (as the case may be) to obtain a sealing in Kenya of any probate, letters of administration or any equivalent thereof in respect of the estate of a deceased person, the Public Trustee may without any further formality apply to the court to seal and the court may seal the probate, letters of administration or any equivalent thereof.

Under Section 7 of The Public Trustees Act of Kenya where the particular circumstances of any case appear to the court so to require, the court may, if it thinks fit for reasons recorded in its proceedings, of its own motion or otherwise, after having heard the Public Trustee, grant under the Law of Succession Act letters of administration to the Public Trustee notwithstanding that there are persons who under that Act or any other written law, would in the ordinary course be legally entitled to administer the estate of the deceased person concerned in preference to the Public Trustee.

Despite the various laws that have been put in place,to govern succession matters, each Kenyan community or society has its own set of rules though inheritance is a universal concept. In Kenya, we have the Law of Succession Act (LSA), which is of general application, but other laws do apply such as Islamic law and customary law, which have been exempted by the Act. Although the Hindu law has not been exempted by the Act, it still applies informally in practice. A uniform law has not been achieved because of the diversity of Kenyans.

During the colonial period different laws applied. Various statutes applied to the various communities at that time such as to the Europeans, Africans, Hindus and Muslims. The advent of independence saw an attempt at moving towards uniformity i.e. an attempt to consolidate the laws of succession into one statute catering for the various peoples of Kenya. This culminated in the enactment of the Kenya law of succession Act in 1972. This was an attempt to bring to an end differential treatment of people carried out during the colonial period. After independence, emphasis was on equality and enactment of the LSA was an attempt at this equality. It was brought into effect in 1981. The Marriage Bill was not accepted.

As for the Kenya law of succession Act, the Bill was passed in 1972 but because some of its provisions were dependent on the Marriage Act it had to wait until the Marriage Bill was passed e.g. customary law is recognized which is a concept alien to English Law. The law on the matrimonial bill introduced concepts that would have harmonized it with the LSA e.g. provisions in the Matrimonial Bill allowed a statutory monogamous marriage to be converted to a polygamous marriage. This was not allowed by S 37 of the Marriage Act.

The Kenya law of succession Act was intended to protect such wives who were married under customary law by husbands already married under statutory law like the cases of Ruenji and Ogola’s Estate. Section 3(5) of the LSA states that such wives can be said to be wives of succession irrespective of what section 37 of the Marriage Act states.

The Affiliation Act was repealed in the 1960s as it was to cater for children born out of wedlock. The failure to pass the law on the Matrimonial Bill has rather caused an untidy situation as the current Marriage Act and Matrimonial Causes Act are not in harmony with the LSA i.e. are inconsistent. This is based on the fact that most dependants are family members, the Act should be in harmony. Inconsistency is evident in S 3(5) LSA, S 37 Marriage Act, and ACMDA. The statutes deny men the right to contract other marriages by virtue of the interpretation in Re Ogolla’s Estate and Re Ruenji’s Estate. This means that once they marry under the statute, they cannot contract marriage under customary law.

Under S 3(5) of the LSA, it states that during the lifetime of the deceased, they are not considered as wives but once he dies then they are considered as wives for purposes of succession. The statutory wives are put at a disadvantage because the woman who is not recognized as a wife during the lifetime of her husband is given recognition as a wife after his death. This situation would have been avoided had the Matrimonial Bill passed. The Bill states that before a husband takes a second wife he would need the consent of the first wife.

See: Muigai v Muigai 95 – 98 E.A. 206 - S 3(5) LSA was interpreted as circumventing S 37 Marriage Act and S 4. It was held S. 37 Marriage Act only bars the husband from subsequently contracting other marriages but does not bar wives subsequently married from inheriting from the deceased’s estate.

Therefore, whereas the LSA is ready to embrace the traditional African principles the Marriage statutes remain as they were during the colonial period espousing English principles of Marriage and Divorce. In practice, courts tend to resolve such conflicts in favour of customary law.

Irene Njeri Macharia v Margaret Wairimu Njogu and Anor Civ. A. 139/94

Court of Appeal held: An earlier decision by the High Court in the case of the estate of Reuben Nzioka Mutua was bad law.

See: HC Probate & Administration No. 843/1986

The deceased had contracted a statutory marriage in 1961. In 1980, he purported to contract another marriage during the subsistence of an earlier marriage. He left a will giving his entire estate to his statutory wife and left out his latter wife. His second wife challenged this under S 3(5) LSA arguing she was a wife.

Held: By virtue of S 37 Marriage Act and S 4 Cap 151, the deceased had no capacity to marry a second wife under customary law and therefore she was not a wife, following the decision i.e. for purposes of succession.

The inconsistency remains because the Marriage statutes have not been amended to bring them in line with the Succession Act. Areas closely related to Succession Law are Property Law, Family Law etc. The relationship of the deceased and the person claiming to be a dependant are relevant e.g. if a wife or a child, you have to look at the system of Marriage if any or whether the child is a dependant under the Children’s Act.

Trust law is also relevant especially when it comes to the Administration/Management of deceased’s property. It entails 1) the collection of assets 2) settling debts and 3) settling the estate/distribution to dependants. The administrator stands in a fiduciary relationship in carrying out his functions therefore he is a trustee. The Trustee Act covers both administrators and trustees, so does the Trust for Land Act. Equitable remedies e.g. Tracing are often used by administrators and beneficiaries to recover property of the estate that may have been paid out wrongly i.e. to people who are not beneficiaries of the deceased.