Legal Commentary: Family and Succession Law in Kenya

1. Overview

In Kenya, Family and Succession Law forms a crucial part of private law that governs family relationships, marriage, children, and the distribution of property upon death. This area of law seeks to balance individual autonomy, family obligations, and societal interests, while ensuring justice and equity within family structures.

Family and succession matters fall under the Family Division of the High Court and, at the subordinate level, under Children’s Courts and Magistrates’ Courts with jurisdiction conferred by the Magistrates’ Courts Act, 2015.

2. Principal Legislation

Kenya’s Family and Succession Law is anchored in several key statutes and supplemented by constitutional provisions and judicial precedents.

(a) The Law of Succession Act (Cap 160, Laws of Kenya)

This is the primary legislation governing inheritance and the administration of estates in Kenya. It applies to all persons domiciled in Kenya at the time of their death, except where customary law or Islamic law is applicable (see section 2(1) and (2) of the Act).

The Act distinguishes between two main types of succession:

1. Testate Succession:
• Occurs when a deceased person leaves behind a valid will that sets out how their estate should be distributed.
• The court issues a Grant of Probate to the executor named in the will, authorizing them to administer the estate.
• A will must meet the formal requirements under sections 5–11 of the Act, including being made voluntarily, by a person of sound mind, and properly witnessed.
2. Intestate Succession:
• Applies when a person dies without a valid will.
• The distribution of their property follows the rules under Part V of the Act.
• The order of priority for inheritance is: surviving spouse(s), children, parents, siblings, and other relatives, as prescribed by sections 35–39.
• The court issues a Grant of Letters of Administration to one or more administrators (usually family members) to manage and distribute the estate.

In both cases, the estate is subject to confirmation by the High Court, which ensures that the distribution accords with the law and protects the interests of dependants and beneficiaries.

(b) The Marriage Act, 2014

This Act harmonized and consolidated various previous marriage laws, recognizing five systems of marriage in Kenya:

• Civil marriages,
• Christian marriages,
• Customary marriages,
• Hindu marriages, and
• Islamic marriages.

Key provisions include:

• Section 3: Defines marriage as the voluntary union of a man and a woman.
• Section 73–80: Provide for dissolution of marriage (divorce) and the grounds for dissolution such as cruelty, adultery, desertion, or irretrievable breakdown.
• Section 93: Deals with matrimonial property, providing that ownership depends on the contributions (monetary or non-monetary) made by each spouse during the marriage.

The Matrimonial Property Act, 2013 complements the Marriage Act by setting out how property is to be divided upon divorce or death. The courts, guided by Article 45(3) of the Constitution, have held that spouses are entitled to equal rights during and after marriage (P.N.N v Z.W.N [2017] eKLR).

(c) The Children Act, 2001 (as revised in 2022)

The Children Act operationalizes the rights of the child guaranteed under Article 53 of the Constitution and the Convention on the Rights of the Child (CRC).

It provides for:

• Parental responsibility (Part III): Both parents have equal rights and duties toward the child, including care, maintenance, and education.
• Custody and maintenance (Part VII): Courts determine custody based on the best interests of the child, as reaffirmed in J.O v S.A.O [2016] eKLR.
• Adoption and guardianship: Procedures for local and international adoptions, and appointment of guardians to manage a child’s welfare and property.
• Children’s Courts: Established under section 73 to handle all children-related matters in a child-friendly manner.

3. Key Aspects of Family and Succession Law

(a) Estate Planning

Estate planning allows an individual to manage and control how their assets will be distributed after death.

• This may include drafting a will, setting up trusts, or joint ownership arrangements.
• The goal is to avoid disputes, reduce legal costs, and ensure that one’s wishes are carried out.

In Kenya, legal practitioners advise clients to ensure that wills are valid under section 11 of the Law of Succession Act and periodically updated to reflect changes in family or property circumstances.

(b) Probate and Administration

This refers to the judicial process by which a deceased person’s estate is validated and managed.

• If there is a valid will, the executor applies for probate.
• If there is no will, a relative applies for letters of administration intestate.
• The court supervises the process to ensure fairness, culminating in the confirmation of the grant (section 71, Law of Succession Act), after which property can be legally transferred to beneficiaries.

(c) Inheritance Disputes

Disputes often arise regarding:

• The validity of a will;
• The inclusion or exclusion of certain beneficiaries; or
• The manner of distribution.

The Family Division of the High Court has jurisdiction to resolve such disputes. Common examples include cases of alleged undue influence, forgery, or disinheritance contrary to the Act.

In In re Estate of L.N.W (Deceased) [2016] eKLR, the Court reiterated that every beneficiary must be given an opportunity to be heard before confirmation of grant, underscoring the principles of fairness and procedural justice.

(d) Dependant’s Provisions

Under section 26 of the Law of Succession Act, any person who was being maintained by the deceased but has not been adequately provided for in the will or under intestacy may apply to court for reasonable provision.

Dependants include spouses, children (legitimate or illegitimate), parents, and any person who was financially dependent on the deceased. The Court has wide discretion to ensure equity, as illustrated in In re Estate of Solomon Ngatia Kariuki (Deceased) [2013] eKLR.

(e) Matrimonial Property

The Matrimonial Property Act, 2013, read together with the Marriage Act, 2014, governs ownership and division of property acquired during marriage.

• Section 7 of the Matrimonial Property Act provides that ownership vests according to the contribution made by each spouse.
• Contribution may be direct (financial) or indirect (domestic work, child care, emotional support, etc.), as affirmed in Echaria v Echaria [2007] eKLR.
• Upon dissolution of marriage or death, the court determines the equitable distribution of matrimonial assets.

4. Conclusion

Family and Succession Law in Kenya is a comprehensive framework designed to regulate personal relationships, protect vulnerable family members, and ensure fair distribution of property upon death.

The combination of constitutional safeguards, statutory provisions, and judicial interpretation ensures that justice, equity, and the best interests of the family remain central to Kenya’s legal system.

Courts continue to interpret these laws in a manner that upholds human dignity, non-discrimination, and gender equality, reflecting the spirit of the Constitution of Kenya, 2010.

Disclaimer: This article is for informational purposes only and does not constitute legal advice.