LEGAL ANALYSIS OF THE LEGAL PROCESS OF INSTITUTING SUCCESSION PROCESS IN KENYA

1. Legal Framework

The law governing succession in Kenya is primarily the Law of Succession Act, Cap. 160 of the Laws of Kenya. It provides the legal mechanism for the administration of a deceased person’s estate and guides the distribution of assets to rightful heirs and beneficiaries.

Succession proceedings can be either:

• Testate – where the deceased left a valid written or oral will, or
• Intestate – where the deceased did not leave a will, or the will is invalid.

The procedure outlined here primarily focuses on intestate succession, which is more common and often more legally complex.

 

2. Key Stages in Instituting a Succession Cause

Step 1: Filing a Petition for Letters of Administration

• A petition is filed at the High Court (Family Division) or in certain cases, at a Magistrate's Court if the estate value does not exceed KSh 5 million (as per The Magistrates' Courts (Succession Matters) Rules, 2015).
• The petitioner is usually a surviving spouse, child, parent, or other dependent of the deceased, as recognized under Section 29 of the Law of Succession Act.
• The petition seeks to be granted Letters of Administration Intestate, which authorize the petitioner to administer the deceased's estate.

 

Step 2: Preparation and Submission of Supporting Documents

The petition must be accompanied by a number of required documents, including:

📝 Mandatory Documents:

1. Death Certificate – Certified copy to confirm the deceased is dead.
2. Chief’s Letter – Issued by the area chief where the deceased resided. It must confirm:
• The date of death,
• The full list of dependents and beneficiaries, and
• Whether any disputes exist regarding the estate.
3. Identification Documents:
• National ID cards of the petitioner(s),
• National IDs or birth certificates of the beneficiaries.
4. Affidavit in Support of Petition (Form P&A 5) – Declares:
• Assets and liabilities of the deceased,
• The names and relationships of all beneficiaries.
5. Affidavit of Justification of Proposed Administrators (Form P&A 11) – Required where there is more than one proposed administrator.
6. Consent to Petition (Form P&A 38) – Signed by other dependents agreeing to the petitioner(s) being appointed administrator(s).
7. Guarantee by Sureties (Form P&A 57) – Required where the administrator(s) are not the sole beneficiaries. Sureties are persons who guarantee proper estate administration.

 

Step 3: Payment of Court Fees

Once documents are accepted, the court issues an invoice covering:

• Filing fees – Varies based on the size of the estate.
• Kenya Gazette fee – For the mandatory publication notice.

These fees must be paid before the court processes the petition.

 

Step 4: Publication in the Kenya Gazette

• After filing, the petition is published in the Kenya Gazette as required under Rule 7(4) of the Probate and Administration Rules.
• The notice serves two purposes:
• Public notification of the intention to administer the estate, and
• Provides an opportunity for any objections to be raised within 30 days from the date of publication.

If an objection is raised, it triggers a contentious succession cause, which may involve litigation or mediation.

 

Step 5: Issuance of Grant of Letters of Administration

• If no objections are filed within the gazettement period, the court issues the Grant of Letters of Administration Intestate.
• This grant authorizes the petitioner (now administrator) to:
• Collect and preserve the estate,
• Pay debts and taxes,
• Prepare a schedule for distribution.

⚠️ Note: The grant does not allow distribution yet. The administrator must first apply for confirmation of the grant.

 

Step 6: Confirmation of Grant and Identification of Beneficiaries

• After 6 months, the administrator must apply for confirmation of the grant under Section 71 of the Law of Succession Act.
• This application (Form P&A 54) must include:
• A schedule of assets, and
• A proposal on how the estate will be distributed among beneficiaries.
• Beneficiaries must consent to the mode of distribution, or else the court may adjust it to ensure fairness (especially in polygamous families).
• The court confirms the grant and authorizes the actual distribution of the estate.

 

Step 7: Distribution of the Estate

• The administrator proceeds to distribute the estate according to the confirmed grant.
• Before distribution, the administrator must:
• Pay any debts, taxes, and funeral expenses from the estate.
• Obtain a Clearance Certificate from KRA showing that any applicable estate duty or capital gains tax has been settled.
• Upon completion, the administrator files an account of the administration if required.

 

3. Special Cases

A. Where There Is a Valid Will (Testate Succession)

• If the deceased left a valid will, the process involves filing for probate rather than letters of administration.
• An executor named in the will applies for a Grant of Probate.
• Process is similar but includes production of the original will and affidavit of attesting witnesses.

B. Where Minor Beneficiaries Are Involved

• The court may require the appointment of guardians.
• Any appointed administrator must act in the best interest of the minors.
• Proceeds due to minors are usually held in trust or deposited in a bank until the child attains majority age (18 years).

 

4. Applicable Legal Provisions

Law	Section / Rule
Law of Succession Act (Cap. 160)	Sections 29, 35, 36, 66, 71, 76
Probate and Administration Rules	Rules 7, 10, 26, 40
Constitution of Kenya, 2010	Article 27 – Equality of all beneficiaries
Magistrates' Court Act	Section 9 – Jurisdiction in succession matters up to KSh 5 million
Trustee Act (Cap. 167)	In cases involving holding property in trust

 

Conclusion

The process of instituting succession in Kenya is structured to ensure transparency, fairness, and legal compliance in the distribution of a deceased person’s estate. While the process is relatively straightforward in uncontested cases, it can become lengthy and complex where disputes arise or assets are extensive.

Engaging a qualified probate and succession advocate is highly advisable, especially for:

• Estates with high value or complex ownership structures,
• Blended families or multiple households,
• Disputed wills or beneficiaries.