The applicable law in Kenya with regard to issues of succession is the Law of Succession Act, Chapter 160 Laws of Kenya (“Succession Act”), which came into force on the July 1, 1981. The Succession Act provides the law for testate and intestate succession.
Testate succession occurs when a person makes a valid and enforceable will which ensures that upon the death of that person, his/her property passes to a person/s of his/her choice. A female person, whether married or unmarried has the same capacity to make a will as does a male person.1 If the deceased person’s will does not adequately provide for a dependent/s, the court may, upon application, order a reasonable provision for that dependent/s.2
Intestate succession occurs when a person dies without making a will or the will is invalidated.3 The intestacy rules provide for distributions to people who have a direct blood link with the deceased apart from spouses.4 In the absence of blood relatives, the deceased’s estate passes on to the state. Where the deceased leaves one spouse and child or children, the surviving spouse is entitled to the personal and household effects of the deceased absolutely and a life interest in the whole residue of the net intestate estate.5 In the event that the surviving spouse dies, or, in case of a widow if she remarries, then the whole residue of the net estate is equally divided among the surviving children.6 The surviving spouse has the use and utility of the property during the life estate. If the deceased leaves one spouse and no children, in addition to the personal and household effects and a life interest, the surviving spouse is entitled to twenty percent of the residue of the net estate.7
The Succession Act is intended to constitute the law of Kenya with respect to all cases of testate and intestate succession.8 The Succession Act, however, exempts from its application the succession of agricultural land and crops thereon or livestock in certain Districts and in these Districts the customary or tribal laws control inheritance rights.9
Customary – Tribal Law
Customary laws for each tribe may differ. However, under all customary laws married daughters are not allowed to inherit the estate of their deceased father. Under some tribal customary laws unmarried daughters may be recognized as a son and given equal rights with sons to inherit. Under other tribal customary laws only spinster daughters are given equal rights with sons to inherit.
It is important to note that customary laws will not be enforced if their application is determined to be morally wrong or inconsistent with other written laws. Judicature Act, Chapter 8 of the Laws of Kenya recognizes the African customary law as one of the sources of law in Kenya. However, section 3 provides that customary law applies “for as long as it is applicable and not repugnant to justice and morality or inconsistent with any written law.” A 2008 judicial decision (see below) invokes this exception with respect to situations where customary law would apply to inheritance rights.
In re Estate of Lerionka Ole Ntutu (Deceased),  eKLR, High Court of Kenya at Nairobi Family Division, Succession Cause No. 1263 of 2000, holds that “even if the provisions of Section 32 [of the Succession Act] do apply to Uasin Gishu area and even if Masai customary law would be applicable to the estate, the customary law which shall abrogate the right of daughters to inherit the estate of a father cannot be applicable as it shall be repugnant to justice and morality. (Section 3(2) of the Judicature Act).”
Related Constitutional Provisions
The Constitution of Kenya guarantees the equal protection of property rights for men and women. Ch. 4. Part 2(40)(1) states that: “every person has the right, either individually or in association with others, to acquire and own property.”10 The Constitution also protects equality within a marriage stating that: “parties to a marriage are entitled to equal rights as at the time of the marriage, during the marriage and at the dissolution of the marriage.”11
The Constitution also provides that: “The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.”12
In order to give full effect to these non-discrimination provisions, the Constitution provides that: “the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.”13
- 1. Succession Act, Section 5(2).
- 2. Ibid. Section 26.
- 3. Ibid. Section 34.
- 4. Ibid. Section 39.
- 5. Ibid. Section 35.
- 6. Ibid. Section 39.
- 7. Ibid. Section 36.
- 8. Ibid. Sections 2(1) and 2(2).
- 9. Ibid. Sections 32 and 32 and legal Notice No. 94 of 1981, published on June 23, 1981.
- 10. Constitution of Kenya Ch.4. art. 2.40(1).
- 11. Ibid. Ch. 4. Part 2(45)(2), (3).
- 12. Ibid. Ch. 4 Part 2(27)(4).
- 13. Ibid. Ch. 4 Part 2(27)(6).