Desertion and Repudiation in Employment Law: An Analysis of Mumali v Blink Studio Ltd [2025] KEELRC 2112 (KLR)

1. Introduction

The Kenyan legal framework governing employment relationships is premised on principles of fairness, accountability, and mutual obligations. While the Employment Act, 2007 extensively protects employees from arbitrary termination, it equally obligates employees to uphold their duties, including attending work and communicating absences. The decision in Mumali v Blink Studio Limited offers a salient judicial interpretation of employee desertion, repudiation of contract, and the boundaries of procedural fairness under the Act.

2. Factual Background and Judicial Findings

In Mumali, the Claimant instituted legal proceedings for unfair termination, asserting that the employer had not followed procedural safeguards as mandated by Section 41 of the Employment Act, 2007. The Respondent contended that the Claimant had absconded duty without justification or communication, and that the issuance of a one-month termination notice was an administrative necessity rather than a punitive measure.

The court ultimately sided with the Respondent, holding that the Claimant’s prolonged, unexplained absence without the intention to resume work amounted to desertion, a form of repudiation of the employment contract. The employer’s issuance of a termination notice was viewed as a lawful acceptance of that repudiation, and the termination process was deemed procedurally fair in the circumstances.

3. Legal Issues and Doctrinal Analysis

3.1 Desertion as Just Cause for Termination

Desertion is recognized under Section 44(4)(a) of the Employment Act, which permits summary dismissal if an employee “without leave or other lawful cause, absents himself from the place appointed for the performance of his work.” This provision captures both unauthorized absenteeism and prolonged absences that indicate abandonment of employment duties.

In Mumali, the court applied this statutory standard, finding that the Claimant’s conduct transcended mere absenteeism and qualified as intentional desertion. Courts have historically required that desertion be voluntary, without cause, and accompanied by an intent not to return to work—criteria that were satisfied in this instance.

3.2 Repudiation and Contractual Frameworks

The employment relationship in Kenya is grounded in contractual obligations, and the doctrine of repudiation—borrowed from general contract law—applies. Repudiation occurs where one party, by words or conduct, demonstrates an intention not to be bound by the contract.

In Mumali, the employee’s conduct amounted to such a repudiation. The employer’s subsequent action in issuing a termination notice was viewed as a legal acceptance of that repudiation, thus bringing the contract to an end. This approach aligns with common law principles recognised in earlier Kenyan decisions such as Catherine Wanjiru Gachigi v Airtel Networks Kenya Limited [2013] eKLR, where employee conduct was interpreted as implied termination through breach.

3.3 Procedural Fairness under Section 41 of the Employment Act

A key point of contention was whether the employer complied with Section 41, which outlines procedural safeguards prior to termination:

• Notification of grounds for dismissal.
• Opportunity for the employee to respond in the presence of a colleague or union representative.

While this provision is mandatory in most dismissal cases, Kenyan courts have acknowledged exceptions in cases of employee desertion. In Mumali, the court held that where the employee has made themselves unavailable, it is impractical to adhere strictly to procedural steps. This is consistent with the reasoning in Ayub Kombe Gwali v Kenya Ports Authority [2016] eKLR, where the court observed that procedural fairness cannot be enforced where the employee’s own conduct renders it impossible.

4. Broader Implications for Kenyan Labour Law

The ruling in Mumali provides a pragmatic balance between employee rights and employer duties:

• It confirms that desertion, when proved, constitutes a lawful ground for termination.
• It demonstrates judicial recognition of contextual fairness, especially when employee conduct precludes adherence to strict procedural norms.
• The case reinforces the principle that employment contracts are reciprocal: just as employers must act fairly, employees must fulfil their duties, including attendance and communication.

Additionally, this case may serve to guide HR policies and internal disciplinary mechanisms, particularly in sectors prone to high turnover or absenteeism. Employers are advised to keep detailed records of absences, attempts at communication, and notice issuance, to withstand legal scrutiny.

5. Conclusion

The court's decision in Mumali v Blink Studio Ltd underscores a key principle in Kenyan employment jurisprudence: that procedural fairness must be interpreted contextually, and that employee conduct—especially where it signals abandonment—can relieve an employer from full procedural compliance. This reinforces a contractual understanding of the employment relationship, where both parties are bound by duties of good faith, communication, and performance.

As Kenyan employment law continues to develop, this case illustrates how courts may increasingly rely on practical realities and contractual doctrines to resolve employment disputes in a fair and balanced manner.

On reaffirmtion of the rule of law, the protection of investment, and the importance of lawful, participatory planning by devolved governments: The Case of Claire Kubochi Anami & Others (Suing as Officials of Rhapta Road Residents Association) v County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County & 19 Others

Civil Appeal No. E160 of 2025: Claire Kubochi Anami & Others (Suing as Officials of Rhapta Road Residents Association) v County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County & 19 Others

On 19 September 2025, the Court of Appeal of Kenya issued a landmark judgment in Civil Appeal No. E160 of 2025, significantly shaping the legal landscape on zoning, urban planning instruments, and development control within Nairobi City County. The case concerned development approvals along Rhapta Road in Westlands, and specifically challenged the legality and procedural validity of multi-storey developments in that area.

The Court delivered a progressive and pro-investment decision, affirming the legal rights of developers to proceed with projects up to 20 floors in height. It also provided long-awaited judicial clarity on the planning instruments applicable to Nairobi’s urban development and directed the County Government to regularise and gazette lawful zoning frameworks within six months.

The decision provides long-term legal and regulatory certainty for both developers and investors, while reinforcing the constitutional obligations of county governments under Kenya’s devolved governance framework.

 

Key Judicial Findings and Legal Implications

1. Zoning Classification under Kenyan Law

• The Court confirmed that Rhapta Road falls under Zone 3C, which permits high-density, mixed-use developments of up to 20 floors. This zoning classification aligns with Section 56 of the Physical and Land Use Planning Act, 2019 (PLUPA), which empowers county governments to designate and regulate land use zones through legally adopted local physical development plans.
• Developments must still comply with infrastructure thresholds, traffic management standards, and environmental and social impact mitigation measures.

2. Status of Planning Instruments

• 2004 Zoning Guidelines: Declared obsolete and lacking any legal force, having never been formally adopted under the statutory framework now governed by PLUPA.
• NIUPLAN 2016 (Nairobi Integrated Urban Development Master Plan): Recognised as a valid strategic framework for city-wide planning, but the Court clarified that it does not confer parcel-specific development rights, as required under Sections 44 and 45 of PLUPA.
• 2021 Nairobi Development Control Policy: Treated as a legitimate administrative guide, despite not being approved by the County Assembly or gazetted. The Court urged formalisation under Section 52 of PLUPA to ensure legal enforceability.

3. Environmental Compliance

• The Court upheld NEMA licences issued to the developers, finding that the approvals were consistent with the provisions of the Environmental Management and Coordination Act (EMCA), 1999, and that there was no procedural impropriety or breach of environmental law.
• Objectors failed to prove that the developments posed significant environmental risks or had violated statutory safeguards.

4. Orders Directed at Nairobi City County

• The County Government was compelled to:
• Finalise, approve, and gazette updated zoning plans and development control policies within six (6) months, pursuant to Section 58 of PLUPA.
• Submit interim status reports to the Court to ensure ongoing judicial oversight and transparency.
• This reflects a growing trend in Kenyan jurisprudence where courts impose structural interdicts or supervisory orders to ensure compliance with constitutional and statutory obligations, especially in matters involving public administration and urban governance.

5. Costs

• The Court directed that each party bear its own costs, citing the public interest nature of the dispute. This aligns with Kenyan precedent under Article 22 and Article 258 of the Constitution, where litigants raise constitutional or administrative concerns affecting the general public.

 

Implications for Developers, Investors, and Policy Stakeholders

✅ Legal Certainty on Building Heights

• Developers can lawfully undertake projects of up to 20 floors along Rhapta Road, subject to infrastructure capacity and regulatory compliance under Zone 3C.

✅ Protection of Lawfully Granted Approvals

• The Court reaffirmed that valid approvals granted by NEMA, the Nairobi City County, and other relevant authorities remain enforceable.
• Retroactive invalidation or demolition was expressly declined, protecting property rights under Article 40 of the Constitution.

✅ Urban Planning Reforms Imminent

• The Court’s six-month timeline sets a deadline for zoning reform, and developers should anticipate new gazetted policies that will govern development control and land use going forward.
• This is a key moment for active stakeholder engagement during public participation forums, as required by Article 10 and Article 69(1)(d) of the Constitution and Section 5 of PLUPA.

✅ Alignment with International Best Practices

• The Court’s reasoning reflects global norms in sustainable urban planning, drawing parallels with UN-Habitat guidelines and international urban law, promoting compact, mixed-use, transit-oriented development.
• Nairobi’s legal framework is increasingly harmonised with international urban planning standards, supporting its ambition to become a competitive global city.

Conclusion

The Court of Appeal's decision in this matter is a watershed moment for urban development law in Kenya. It reaffirms the rule of law, the protection of investment, and the importance of lawful, participatory planning by devolved governments. For developers and urban planners, it is both a green light for current projects and a call to engage in the shaping of Nairobi’s future zoning and infrastructure frameworks.

The Concept of Adverse Possession in Kenya

In the Kenyan legal context, adverse possession is a doctrine that has significant implications for land ownership, particularly in relation to land disputes, squatting, and long-term occupation. This principle has been embedded in Kenyan law, both through statutory provisions and judicial decisions, and plays a central role in the country’s land tenure system.

Legal Framework of Adverse Possession in Kenya

The Limitation of Actions Act (Cap 22) provides the foundation for adverse possession claims in Kenya. The statutory framework for adverse possession is clearly outlined in the following sections of the Act:

1. Section 7:
   This section provides the general limitation period for bringing actions to recover land. It states that no person can bring an action to recover land after 12 years from the date on which the right to action accrued to them. The clock starts running when the right to take legal action arises, and this period continues to run even if the owner is unaware that someone is occupying their land.
2. Section 38(1):
   This section is crucial as it specifically deals with adverse possession claims. It states that a person who has acquired land through adverse possession may apply to the High Court for an order that they be registered as the proprietor of the land in place of the registered owner. The court is then required to consider whether the claimant has met the statutory criteria, including the 12-year continuous possession.

The Land Registration Act, 2012 also plays a role in regulating the procedural aspects of land ownership registration once an adverse possession claim has been successfully established. The Act facilitates the process by allowing the High Court to order the transfer of land ownership to the adverse possessor once the claim is proven. However, it's important to note that despite the judicial transfer of ownership, the land registration process must still be followed to perfect the ownership under the new title.

 

The Principles of Adverse Possession in Kenyan Land Law

Kenya’s approach to adverse possession is rooted in several key principles that guide how land disputes are handled, particularly in rural areas where squatting and informal land occupation have been common practices. The doctrine is grounded in the idea that land should not remain idle or neglected. If a person has occupied land for a significant period, without objection from the registered owner, they may rightfully claim ownership after a certain period.

This is consistent with the Kenya Constitution (2010), particularly Article 40, which protects the right to own property. However, this right is not absolute and can be overridden by lawful claims such as adverse possession after a specific period of occupation, provided the occupation is not disruptive, and the owner has not taken steps to protect their rights.

Elements of Adverse Possession in the Kenyan Context

To establish a successful claim of adverse possession in Kenya, a claimant must prove the following elements beyond a reasonable doubt:

1. Actual Possession:
   The claimant must demonstrate that they have physically occupied the land in question. This occupation could involve residing on the land, farming it, building structures, or fencing it off to clearly demarcate it as their own. The courts in Kenya have stressed that mere user rights (such as grazing livestock or temporary use) do not qualify as adverse possession unless the occupation is more permanent and demonstrable.
2. Continuous and Uninterrupted Possession:
   The possession must be continuous for a period of 12 years. In Kenya, if the landowner actively prevents the possessor from occupying the land (e.g., by initiating eviction proceedings or fencing off the land), the 12-year period is interrupted. The claimant must show that their occupation has been undisturbed and uninterrupted, including proof that the landowner did not take steps to reclaim their land.
3. Exclusive Possession:
   The claimant must have occupied the land exclusively, meaning they must have used it without the consent of the registered owner or shared it with others (except in limited circumstances). If the claimant’s occupation is shared with others or the original owner, it will undermine their claim. In Adams v. The Attorney General & Another [2018] eKLR, the Kenyan court reaffirmed that the occupation must exclude the registered owner or the public at large.
4. Open and Notorious Possession:
   The claimant’s occupation must be open and notorious, meaning it is visible and known to the community. The landowner must be aware (or reasonably should be aware) that someone is occupying their land. The Kisumu High Court in Kambui v. Kariuki [2019] eKLR made it clear that the claimant’s use of the land must be conspicuous to all parties, particularly the rightful owner.
5. Non-Permissive and Non-Consensual Possession:
   The claimant must occupy the land without the owner’s permission. This is one of the most critical elements. If the occupation was originally with the owner’s consent, even if the possession continues for 12 years, the claimant cannot claim adverse possession. The court in Mathenge v. Wambugu [2017] eKLR held that the absence of consent must be explicit for the claim to succeed. This is where the principle "nec vi, nec clam, nec precario" ("no force, no secrecy, no permission") is emphasized.
6. Intention to Possess (Animus Possidendi):
   The claimant must show an intent to possess the land as their own. This can be demonstrated through actions such as fencing, building structures, farming, or otherwise using the land in a manner consistent with ownership. The court in Kiarie v. Kamau [2014] eKLR emphasized that intention is a critical factor in the claim of adverse possession.

 

The Role of the Courts and Judicial Interpretation

Kenyan courts have interpreted and applied the doctrine of adverse possession in several landmark decisions. These rulings have not only clarified the procedural and substantive requirements but have also shaped the way adverse possession is understood in the Kenyan legal context.

In Gichuru v. Mumbi [2016] eKLR, the Court of Appeal reinforced that adverse possession can only succeed when the possession is exclusive and continuous. The court emphasized that squatter settlements are particularly susceptible to adverse possession claims if the occupiers have been on the land for a long period.

Moreover, the case of Mitu-Bell Welfare Society v. The Attorney General [2013] eKLR demonstrated that the state cannot be subject to adverse possession claims. This aligns with Section 41 of the Limitation of Actions Act, which specifically excludes land held by the government or public entities from such claims.

 

The Future of Adverse Possession in Kenya

The doctrine of adverse possession continues to evolve in Kenya, particularly as urbanization increases and disputes over land ownership intensify. Squatter settlements in peri-urban and rural areas are often subject to adverse possession claims, and the courts are increasingly faced with balancing the interests of landowners and squatters.

Recent decisions have called for a reconsideration of the strict application of the 12-year period, especially in cases where the landowner’s inaction is due to negligence or failure to monitor their property. In Kasarani v. Kiboro [2020] eKLR, the court expressed concern over the rights of squatters and emphasized the need to safeguard the interests of vulnerable communities while also respecting the sanctity of title ownership.

Conclusion

In Kenya, adverse possession remains a critical tool for landowners and occupiers alike, with its legal framework rooted in public policy and judicial precedent. The law continues to evolve, especially in addressing challenges in urban settlements and squatter communities. However, the strict requirements outlined by the Limitation of Actions Act and the Land Registration Act mean that any claim of adverse possession must be carefully considered, with clear evidence of long-term, exclusive, and non-permissive possession. This doctrine aims to encourage land use, discourage neglect, and ensure the fair distribution of land ownership within Kenya’s complex and evolving land tenure system.

 

DISCLAIMER: This article is intended for general informational purposes only and does not constitute legal advice. Seek guidance from qualified legal professionals. 

RENEWAL AND EXTENSION OF LEASEHOLD PROPERTIES IN KENYA

INTRODUCTION

In Kenya, land ownership is governed under two main land tenure systems:

1. Freehold Tenure, and
2. Leasehold Tenure.

1. Freehold Tenure

Freehold tenure refers to absolute ownership of land for an unlimited duration. Once land is acquired under this system, the owner has complete rights to the land and can pass it on to their heirs, sell it, or develop it as they please, subject to planning and zoning laws.

However, it is important to note that freehold ownership is restricted to Kenyan citizens.

• Foreign nationals, including foreign companies, are not allowed to hold freehold land in Kenya under the Constitution and the Land Control Act.
• This restriction is meant to protect Kenyan land from foreign control and ensure its availability for future generations.

2. Leasehold Tenure

Leasehold tenure refers to a system where land is owned by the government (national or county), and an individual or entity is granted the right to use the land for a specific period, usually 33, 50, 66, or 99 years, depending on the terms set out in the lease.

• The lessee (person granted the lease) is required to pay annual land rent to the government.
• At the expiry of the lease term, the land reverts to the lessor (usually the government) unless the lease is extended or renewed.
• For non-citizens, the maximum lease term allowed is 99 years, as per the Constitution of Kenya 2010.

 

RENEWAL OF EXPIRED LEASES

Renewal of a lease occurs after the original lease term has expired. This usually happens when the lessee fails to apply for an extension of the lease before its expiry.

• In such cases, the lessee must apply to renew the lease, which is treated as a new application, rather than a continuation of the previous lease.
• This process is not automatic and the government may impose new conditions, including:
• Change of land use,
• New valuation and rent assessment,
• Compliance with current planning and zoning regulations.

Key point: Failure to renew an expired lease in time could result in loss of legal interest in the property, and the government may allocate the land to another party.

 

EXTENSION OF LEASES (BEFORE EXPIRY)

This is the preferred and recommended process, where the lessee applies to extend the lease before it expires. This ensures continuity of ownership and avoids legal disputes or forfeiture of land rights.

Legal Framework

Under Section 13 of the Land Act, 2012, the National Land Commission (NLC) is required to:

1. Notify the registered lessee (owner) of the land at least five (5) years before the lease expires.
2. If the lessee does not respond within one (1) year, the NLC must:
• Publish the notice in two national newspapers,
• The lessee then has six (6) months from the date of publication to respond.

If the lessee still does not respond, the land may be treated as reverted public land and may be allocated to other individuals or entities.

Importance: Lessees are strongly advised to monitor their lease terms and initiate extensions early to avoid complications.

 

PROCESS FOR RENEWAL OR EXTENSION OF LEASES

This process involves multiple stakeholders including licensed professionals and government departments.

Step-by-Step Guide:

1. Engage a Licensed Physical Planner
• The lessee must hire a registered physical planner to prepare and submit planning documents.
• This includes requesting a Planning Brief and filling out PPA2 forms from the County Government where the land is located.
2. Submission of Planning Documents
• The Planning Brief and PPA2 forms (in triplicate) are submitted to the:
• Director of Land Administration (national government) or,
• County Land Administrator, depending on who owns the land.
3. Circulation of the Application
• The Land Administrator issues a circulation letter requesting input from:
• The Director of Physical Planning,
• The Director of Surveys,
• The County Physical Planner (in devolved units),
• These stakeholders review and provide comments or objections.
4. Letter of No Objection
• If no issues are raised, a Letter of No Objection is issued, signaling that the lease extension can proceed.
5. Provisional Approval
• The Director of Land Administration issues Provisional Approval for the extension or renewal of the lease, subject to final conditions being met.
6. Re-Survey of the Property
• A registered surveyor re-surveys the land to:
• Confirm boundaries,
• Update any changes,
• Generate a new Registry Index Map (RIM) for the parcel.
7. Re-Valuation of Land
• The government valuer conducts a valuation to determine:
• The current market value of the land,
• The new annual rent payable,
• Any premiums due to change in land use or location.
8. Final Approval
• After the re-survey and valuation, the Director of Land Administration issues the Final Approval for the lease extension.
9. Preparation of Legal Documents
• A licensed advocate prepares:
• The Surrender document (to relinquish the old lease),
• A new Lease Agreement for the extended term.
10. Issuance of New Title

• Upon registration, a new Leasehold Title Deed or Lease Instrument is issued, reflecting the new term and updated conditions.

 

CONCLUSION

The renewal and extension of leasehold titles in Kenya is a structured process that involves compliance with planning, survey, and legal requirements. Property owners should:

• Track their lease expiry dates,
• Initiate extension applications at least five years before expiry,
• Ensure compliance with all land use and planning regulations.

Engaging qualified professionals such as physical planners, land surveyors, valuers, and advocates is essential to ensure a smooth and successful process.

 

DISCLAIMER

This article is intended for general informational purposes only and does not constitute legal advice. Property owners are encouraged to seek guidance from qualified land law professionals for their specific situations.

 

LEGAL GUIDE TO PERSONAL INJURY CLAIMS IN KENYA

1. Introduction

If you suffer harm or injury as a result of another person's negligence or wrongful act, you may be legally entitled to seek compensation. This legal process is known as a personal injury claim.

A personal injury claim seeks to hold the at-fault party (tortfeasor) accountable for the harm caused, whether physical, emotional, or financial. The purpose is to restore the injured party, as far as possible, to the position they were in before the accident occurred.

 

2. What Is a Personal Injury Claim?

A personal injury claim is a civil legal action brought by an injured person (the claimant or plaintiff) against the person, company, or entity (the defendant) responsible for causing the injury.

Compensation (also referred to as damages) is sought to cover:

• Pain and suffering,
• Medical expenses (past and future),
• Loss of income or earning capacity,
• Costs of care or rehabilitation,
• Psychological trauma, and
• Loss of quality of life.

 

3. Common Types of Personal Injury Claims in Kenya

Personal injury claims may arise in a variety of everyday situations, including:

🚗 1. Road Traffic Accident (RTA) Claims

• Claims against negligent drivers, motorcyclists, or third-party insurance companies.
• Covers injuries to drivers, passengers, pedestrians, and cyclists.

🏢 2. Workplace Injury Claims

• Injuries resulting from unsafe working conditions, lack of protective gear, or employer negligence.
• Governed in part by the Occupational Safety and Health Act, 2007 and Work Injury Benefits Act (WIBA), 2007.

🏞️ 3. Accidents in Public Places

• Injuries in malls, markets, parks, government buildings, etc.
• Often arise from slips, trips, falls, or unsafe infrastructure.

⚕️ 4. Medical or Clinical Negligence

• Injuries caused by substandard care by doctors, nurses, or hospitals.
• Claims must establish breach of professional duty and resulting harm.

 

4. Elements of a Personal Injury Claim

To succeed in a personal injury case in Kenya, the claimant must establish:

1. Duty of care – The defendant owed the claimant a legal duty.
2. Breach of duty – The defendant failed to uphold that duty (was negligent).
3. Causation – The breach directly caused the injury.
4. Damage – Actual harm or loss was suffered by the claimant.

These elements align with the general principles of negligence as outlined in Kenyan tort law, particularly under common law and precedents set by Kenyan courts.

 

5. Compensation (Damages) in Personal Injury Cases

A successful personal injury claim may result in monetary compensation, which may be settled either:

• Out of court (through negotiations or mediation), or
• In court (via a formal judgment by a Magistrate or Judge).

Damages typically include:

✒️ Pain and Suffering

Compensation for the actual physical and emotional distress caused by the injury.

✒️ Loss of Amenities

Covers the inability to enjoy day-to-day life activities (e.g., walking, working, socializing).

✒️ Medical Expenses

Both incurred and anticipated future treatment costs.

✒️ Loss of Earnings

Wages lost due to temporary or permanent inability to work.

✒️ Special Damages

Specific, quantifiable expenses incurred (e.g., hospital bills, transport receipts).

 

6. When to Consult a Personal Injury Lawyer

While some minor claims may be resolved through insurance or informal agreements, you are strongly advised to consult a personal injury advocate in cases involving:

• 👉🏾 Severe injuries or hospitalization
• 👉🏾 Temporary or permanent disability
• 👉🏾 Psychological trauma or emotional distress
• 👉🏾 Complex legal or insurance issues
• 👉🏾 Medical negligence

An advocate will assist with:

• Evaluating the merits of your claim,
• Gathering evidence and medical reports,
• Negotiating with insurers or the defendant,
• Initiating court proceedings if necessary.

 

7. Time Limits for Filing a Claim

The general limitation period for filing a personal injury claim in Kenya is 3 years from the date of injury, under the Limitation of Actions Act (Cap. 22).

⚠️ For minors or mentally incapacitated persons, time may start running when they attain capacity.

 

Summary

Step	What to Do
1. Seek medical attention	Get immediate treatment and retain records.
2. Report the accident	Report to police/employer/public authority as applicable.
3. Gather evidence	Witnesses, photos, receipts, injury reports.
4. Consult an advocate	For legal evaluation and filing the claim.
5. File suit (if needed)	If out-of-court settlement fails, file in court.

 

Disclaimer: This document is intended for general informational purposes only and does not constitute legal advice. You should seek guidance from a licensed advocate if you believe you have a valid personal injury claim.

 

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.