In an ideal situation, everyone would have a Will that has clear instructions about their estate. In reality however most people either die without a Will, with an invalid one or with part of their property not distributed in a Will. This is known as intestate succession or intestacy. The Law of Succession Act (LSA) provides for rules to be followed in the event of intestacy. The rules of intestacy provide for distribution of the estate to any surviving spouse(s) and children first and if none to the next of kin.
Section 36 to 40 of the LSA sets out how the estate of an intestate is to be distributed to the spouse and children in different scenarios e.g. where there is spouse and children; where there is no surviving spouse but there are children; where there is a surviving spouse but no children and where there is neither a surviving spouse nor children.
Exemption from Intestacy rules
Section 32 of the LSA provides that intestacy rules do not apply to agricultural land, crops and livestock in the following Districts: West Pokot, Wajir, Samburu Lamu, Turkana, Garissa, Isiolo, Kajiado, Marsabit, Tana River, Mandera and Narok. Property in these Districts is to be distributed according to the law or customs of the deceased’s community or tribe.
The rationale behind this exemption was that at the time when the LSA was enacted in 1981 property was owned communally in these Districts and the inhabitants belonged to the local tribes in those Districts. However, times have changed and some of the land in these Districts is privately owned and in some cases by people from different communities. Based on the original intention for exemption we are not sure whether section 32 serves the intended purpose, neither is it clear whether a person from a foreign community owning land in the exempt Districts would enjoy the preserve of LSA.
Rights of the Surviving Spouse
The LSA does not expressly define who a spouse is, it however defines who a wife is. Section 3 of the LSA provides that a ‘wife’ includes a wife who is separated from her husband and the terms ‘husband’ and ‘spouse’, ‘widow’ and ‘widower’ shall have corresponding meaning. By implication then, a spouse is either a wife or husband of the intestate and includes separated spouse but not divorced spouses.
The entitlement of the surviving spouse is outlined under two circumstances: where there are children and where there are no children.
i. Where intestate leaves one surviving spouse and children
Section 35 of the LSA provides that the Surviving spouse is entitled to:
⦁ The personal and household effects of the deceased absolutely: furniture, appliances, clothing, ornaments etc.
⦁ An interest in the remainder of the estate for life. (Life interest).
⦁ The life interest is held in trust for the children and the wife may apply it to cater for any of her needs or that of the children.
⦁ The life interest terminates when a widow gets remarried and the estate devolves to the children,
ii. Where intestate leaves a surviving spouse and no children
Section 36 of the LSA provides that the Surviving spouse is entitled to:
⦁ The personal and household effects of the deceased absolutely;
⦁ The first kshs.10,000 of the remainder of the estate or 20% of the estate whichever is greater;
⦁ A life interest in the remainder of the estate;
Section 37 of the LSA provides that a surviving spouse can sell any property subject to the life interest if it is necessary for their own maintenance. There is however a proviso that they need to get consent of any co-trustees and adult children and if immoveable property consent of the court.
⦁ The life interest terminates upon remarriage of a widow.
Conflict of LSA with Constitution and Matrimonial Property Act?
Section 36(3) of the LSA provides that upon termination of the life interest the property subject to that interest shall devolve in the order of priority set out in Section 39. Section 39 provides that where an intestate has left no surviving spouse or children, the net intestate shall devolve upon the kindred of the intestate first to the Father, mother, siblings etc.
These provisions unfortunately fail to address a paramount issue; Whose Father, Mother, siblings (family) would such an estate devolve to? Is it the predeceased spouse or the latter spouse? On the one hand the provisions above could be interpreted to mean that the father, mother, siblings…etc. of the latter spouse would be entitled. On the other hand, it could be interpreted that the life interest reverts to the predeceased spouse estate and therefore the in-laws would be entitled.
Assuming the first interpretation is adopted, where the interest terminates as a result of the death then it would devolve to that spouse’s father, mother etc. However, if the interest terminates as a result of remarriage of a widow such an interpretation would result in an absurdity if the interest is to devolve to the spouse’s kindred according to section 39. It does not help that the LSA states remarriage of a ‘widow’ which is clearly biased and contrary to Article 27(2, 4&5) of the Constitution of Kenya 2010 which provides that women and men have right to equal treatment and that the State or any person shall not discriminate any person on account of their marital status, age, sex, ethnicity, religion etc. Article 40(2a) of the Constitution also provides that Parliament shall not enact any law that permits the State or any person to arbitrarily deprive a person property/interest in property of any description or limit enjoyment of property on grounds set out in Article 27(4).
Section 14 of the Matrimonial property Act, 2014 (MPA) provides that where matrimonial property is acquired in the name of on spouse there is a rebuttable presumption that the property is held in trust for the other spouse. Section 6 of the MPA states that Matrimonial Property includes; the Matrimonial home, Household goods and effects in the Matrimonial home and any other immoveable or moveable property acquired during marriage. What this means is that a spouse has an overriding interest in matrimonial property. The question therefore is whether this interest terminates upon the death of a spouse or if it subsists even after death. If it subsists even after death the surviving spouse should be entitled to matrimonial property absolutely which would be inconsistent with the LSA provisions above.
Section 2 of the LSA maintains that unless the LSA or any other written law expressly states differently the LSA constitutes the Law of Kenya with respect to and shall have universal application in all cases of Testamentary or Intestate succession for persons dying after 1st July 1981. Arguably, the LSA takes precedence over the MPA in matters of succession and is the law that would apply. Be that as it may, it is worth noting that the LSA needs to be revised and updated in line with the Constitution and other governing Laws to correct provisions such as Section 36(3) that are ambiguous.
Rights of Children
For a long time community customs were discriminatory towards daughters whether married or unmarried and children born out of wedlock or of an adulterous union.
The Law of succession does not define who a child is however, case law has long established that the law of succession does not distinguish between male and female children or children born out of wedlock. In the Matter of the Estate of Dorcas Njeri Githuku it was held that reference to a child is without reference to gender or marital status. In John Ndung’u Mubea v Milka Nyambura Mubea the court held that children of an adulterous union are children for the purpose of succession.
The entitlements of children upon intestacy are outlined under two circumstances: where there is a surviving spouse and children and when there’s no surviving spouse but there are children.
i. Where there is a surviving spouse/parent and children
Section 35 and 41 of the LSA provide for the entitlements of children of an intestate where there is a surviving spouse/parent:
⦁ Surviving spouse/parent holds estate as Trustee for the children
As we saw above where the surviving spouse has an interest in the residue of the estate for life. Section 41 provides that they hold the residue of the estate in trust for the child/children and when the life interest terminates the residue devolves to the child or if more than one, the children in equal shares.
⦁ Surviving spouse power of Appointment
As a Trustee of the residue the surviving spouse/parent has the power to appoint/assign/gift all or part of the residue to the surviving child or children. What this means is that the surviving spouse/parent can give the child or children and part of the residue held in trust whether upon request or on their own accord.
If any child feels that the power of appointment has been unreasonably exercised or withheld they may apply to court for appointment of their share or a variation.
⦁ Equal division of property among children
Section 41 of the LSA provides that where the residue of the estate is held in trust for more than one child then the children are entitled to equal shares.
ii. Where intestate is survived by child/children only
Section 38 of the LSA provides that where the intestate is survived by a child/children only the estate shall devolve upon the surviving child if there be one or shall be divided equally among the surviving children.
iii. Grandchildren of the intestate
What happens if any of the children of the intestate predecease him/her? Section 41 of the LSA provides that if those children of the intestate had borne children (grandchildren of the intestate) those children would be entitled to their parent’s share of the estate.
Note. Section 41 provides that previous benefits/gifts that the intestate had made to the child/grandchild/house during their lifetime shall be taken into account in determining the final share accruing to that child/grandchild/house.
Rights of other Relatives and Dependants
The LSA rules of intestacy are designed to make provision of the estate to the immediate next of kin the children and spouse. However there are certain circumstances where other relatives can benefit from the intestate’s estate;
i. When intestate leaves behind no surviving children or spouse
Section 39 of the LSA provides that In this case the estate devolves upon the family relations in the following priority:
⦁ Father or if dead
⦁ Mother or if dead
⦁ Brother and sisters or any children of the brothers and sisters of the deceased in equal shares.
⦁ Half brothers and sisters or any of their children in equal shares
⦁ Relatives who are in the nearest degree of consanguinity up to the sixth degree.
⦁ To the state failing survival by the above persons
ii. If they make an application for provision as dependants
Section 29(1) of the LSA provides for 3 different categories of dependants:
Section 29 (a) provides that a dependant means wife(s), former wife(s) and children whether or not they were being maintained by the deceased prior to death.
Section 29 (b) further provides that dependants include; deceased’s parents, step parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death.
Section 29 (c) provides that where the deceased was a woman, the husband if he was being maintained by her prior to her death.
Section 29 illustrates that only the wife/wives and children of the deceased are outrightly entitled to the deceased’s estate. All other relations (Section 29b &c) need to prove that they were being maintained by the deceased. Upon proving that you are dependant, you are required to apply to court for provision out of the net estate.
In re Estate of M’muthamia Mwendwa (Deceased)  Eklr, the Petitioner (son of the deceased) sought to include his children as dependants of the deceased estate. However, he did not provide any evidence that his children, the deceased’s grandchildren was being maintained by him prior to his death. Consequently, the court held that it is not the mere relationship that matters but proof of dependency.
A question arises whether sponsoring education of a child who is not your own, qualifies them as your dependant. In this situation the test of dependency can be met. The relationship is the one in contention. Section 29 b, describes children ‘who the deceased had taken into his family as his own.’ The presumption here is that the child would only qualify as a dependent if the deceased not only paid his fees but had subsequently taken in the child into his family. Therefore, if the deceased was collectively sponsoring fees for the child without any other relations that child would not be entitled to the estate. We stand guided by any adjudication from courts on this issue.
Division of the estate of a Polygamist
Section 40 of the LSA provides for the distribution of the estate where the deceased was polygamous. These provisions apply where the deceased was legally married in a system of law that recognizes polygamy and is survived by different spouses and children.
It provides that in the first instance the personal and household effects of the deceased and the residue of the estate is distributed according to the houses. Houses refer to each of the children together with their mother. For example if the Deceased had 2 wives C & D. C has 3 children and D has 2 children. C’s house contains 4 units and D’s house has 3 units. The estate would be divided according to the number of units in the houses.
After the first distribution the inheritance is further distributed within the houses in accordance with the intestacy rules set out above for example;
i. if in one house there is a spouse and children, the spouse would be entitled to the personal and household effects absolutely and a life interest in the residue which they hold in trust for the children;
ii. If the house only has children, the estate would be distributed to the children equally.
The Law of Succession (Amendment) Bill, 2020
On 27th January 2020 it came to our attention that the LSA Amendment Bill, 2020 is about to be gazzetted. See The Kenya Gazette Vol. CXXII – No. 16 dated 24th January 2020. Supplement No.2.
This Bill was introduced in Parliament in November 2019 and while it is still in the preliminary stages we thought it worth noting that it makes substantive changes to the provisions on dependants (Section 29 see above) as well as define who a spouse is (Section 3).
Section 3 has been amended to include the definition of a spouse as a husband or a wife or wives as recognized under the Marriage Act No. 4 of 2014. The Marriage Act 2014 recognizes only 5 forms of marriages: Civil, Customary Christian, Muslim and Hindu marriages and as such only parties married under these regimes are spouses. This Amendment is timely as it would limit disputes where opportunistic persons masquerade as spouses for succession matters. It would also cure the partiality created in certain provisions where reference is made to wife/wives when it should be to spouse.
Section 29(1a), has been amended by deleting the parts mentioning wife/wives, and replacing them with spouse, the provision for former wife/wives has also been deleted meaning a former spouse would have to prove maintenance under the following Section29(2) if they are to qualify as dependants. Section 29(2), has been amended by deleting the previous provision and replacing it with a new one providing that any person who is not named in section 29(1) shall not be a dependant for purposes of succession unless they prove they were maintained by the deceased for a period of two years prior to the deceased’s death.
It is always ideal to have a Will, however more often than not people die without bequeathing part or all of their estate or with an invalid Will. Intestacy often invites many unnecessary claims and discontentment in families which can be avoided. As we have seen intestacy rules provide for the distribution of the estate to the deceased’s immediate family; spouse(s) and children first providing a safeguard for them.
Unless the property falls within the exempted Districts, the community’s customs are not used in the cases of intestacy. Before going ahead and distributing an intestate’s estate it is important to first familiarize yourself with the rules. An irregular distribution may result in lengthy and costly probate cases. Unnecessary claims can also be avoided if you #knowyourlawkenya.
- Constitution of Kenya 2010
- Law of Succession Act Cap 160.
- Matrimonial Property Act 2014
- Musyoka W. Law of Succession, Law Africa, Nairobi, 2010.
- John Ndung’u Mubea v Milka Nyambura Mubea Nairobi Court of Appeal civil appeal number 76 of 1990.
- In the Matter of the Estate of Dorcas Njeri Githuku (deceased) Nairobi High Court succession cause number 1968 of 2002.
- In re Estate of M’muthamia Mwendwa (Deceased)  eklr, In the High Court at Chuka Succession Cause no. 560 of 2015.