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Law of Succession Lecture Notes - Part 1

SUCCESSION LAW Lecture 1 Kenyan Law


This is the branch of law dealing with inheritance i.e. the transmission of ownership of property from the dead to the living or the transfer of property rights from the dead to the living which is founded on the fact that a dead person cannot possibly own property because he or she cannot enjoy the rights and benefits accruing from property.  Therefore following the death of the owner of some property, rights over such property have got to be passed on to those who survive him or her.

One may therefore say that succession has everything to do with property and death.  The concept of inheritance is universal to all societies, it is the concept of universal application in the sense that it is to be found in all human society irrespective of their ethnicity and religious background.

The concept of succession arises out of 3 basic considerations

1. Upon death a person does not take with them property upon death and therefore the property left behind has to pass to those who are living;

2. Human beings need to acquire some property for their own sustenance to satisfy their basic human needs.  Inheritance is seen as one of several ways of acquiring property; and

3. Man instinctively desires to have control over his property even upon death.  This is necessary because those who acquire property work very hard to accumulate wealth and they wouldn’t want it to in the event of their death to be wasted and succession provides a mechanism for retaining control by a dead person over their property particularly through the device of testate succession.

Succession provides the mechanisms by which property devolves from the dead owner to those left behind.  It also provides the mechanisms for determining the rightful claimants to the property who should be entitled to the share of a particular person.  How are such claimants to be determined and what procedure should be followed by such claimant to access the deceased property by heirs or dependants.

Is succession a good device for distributing the property of a deceased person.  Some commentators have argued that it isn’t, its often been stated that it is not a democratic way of dealing with the property of a deceased person.  One of the basic democratic ideals is securing equality of opportunity and it is said that inheritance violates this ideal that seeks to enhance equality in society.  It is argued that it causes inequality in society by perpetuating hereditary aristocracy in the sense that property moves from the hands of those who have and there is therefore no redistribution of property in the event of the death of a wealthy person.  The other criticism is that recipients of inherited wealth have not earned it and perhaps do not deserve it.  The owner of the property perhaps worked to acquire property and then by the end of the day the wealth passes to children who have not earned and do not bear any relationship to the performance of the inheritors.

The other criticism is that property should serve the living since the dead have no use for property and therefore the dead should not be allowed to dictate the best users of such property.  The other criticism of the system of succession is that it permits large amounts of wealth and power to be thrust on persons who are wholly unprepared or who are incompetent to use it wisely for the best interests of the community, which is why property tends to be wasted upon inheritance.

Lastly there is argument that receipt of large amounts of wealth causes indolence and in the process deprives the community of reproductive energies of the recipient, the inheritor of large amounts of wealth does not have to work and decides to laze around.

The arguments in favour of inheritance are as follows:

1. Some say that it is an incentive for the accumulation of wealth.  It is an incentive to the owner to work even harder to accumulate even more.

2. It is also said that it is an important source of investment capital and for that reason it contributes to the continued expansion of the economy because it essentially puts money in the hands of persons who did not have money initially to invest.

3. It permits the continued support of dependants i.e. the dependants of the deceased persons;

4. With respect of gifts given to charity, hereditary wealth provides a source of wealth for the benefit of the entire community.

5. Any unfairness of inheritance is mitigated by the fact that many of the traditional recipients of the wealth (spouses and children of the deceased) did at least contribute indirectly to the amassing of the wealth.

6. Abolition of inheritance would promote state socialism or worse in the sense that the state would be forced to look for ways and means of supporting the dependants of the deceased person.  It will become the burden of the state to take care of the dependants and that is not desirable.  It is only fair that the children of the deceased benefit from the property of their deceased parents, the maintenance should continue from the estate of the deceased person.

Although the concept of succession is of universal application, inheritance law or rules are not all uniform. They vary or differ in detail from one community to the other.  If we take the case of Kenya as an example, during colonialism and upto 1981 there were four different systems of succession law applying to the four main social cultural groups in the country.

1. there was a system for the Africans based largely on African customary law;
2. System for Muslims based on the Islamic law as stated in the Koran
3. System applying to Hindus based largely on Hindu Customary Law and in certain instances to English law; and

4. persons of English descent and the law applicable was the English law of succession.

Even within the African communities themselves there were differences in the contents of African Customary Law.  the Masai customary law would for example differ with Luo customary law or though the principle covering succession would be more or less the same.   If one takes the Luhya for example there are differences in the customs of the Tachoni from the Bukhusu and so on.  The law differed from community to community.  There is no uniform succession law.

After independence there was a movement by govt towards achieving uniformity in the law of succession.  There was an effort by the independence govt to come up with succession law that applied to all Kenyans not just in the laws of succession but also in the area of family law.  this movement has its genesis in Chapter 5 of the Constitution which seeks to put the interests of all the Kenyan people at par in the eyes of the law i.e. Chapter 5 envisages equal treatment of all the people of Kenya irrespective of their background.  The application of different sets of law to area of succession was treated or seen as being discriminatory.  It was the determination to achieve equality or uniformity that led to the enactment of the Law of Succession Act Cap 160 Laws of Kenya and the failed attempt to pass the law of Matrimony Act.

The Act was passed in 1972 but it came into effect from the 1st July 1981, there was an 8 year delay in bringing this statute into operation.  The statute sought among other things to unify all the existing succession laws in Kenya into a uniform legislation applicable to all the people of Kenya.  In other words they sort to bring to an end the parallel systems of the laws of succession existing side by side and bring one law dealing with succession.  The effort to come with one uniform law dealing with succession has not been altogether achieved.  There are contradictions inherent in our society that prevent achievement of uniform law which are brought about by the multicultural nature of our society.  It has become necessary to exempt some sections of the society from the provisions of the Act.

Sections that have been exempted from the provisions of this Act are the Muslims, Pastoral communities resident in certain districts in the community have also been exempt.  This is mainly with respect to intestate succession.  The exemption of the pastoral communities have paved way for the application of the African customary law to the estate of deceased members of such pastoral communities.  There also decisions of the Court of Appeal which have effectively disapplied the intestacy provisions of the Act to the estates of the deceased Africans.  (to argue later that these decisions are not good law)

The Law of Succession was meant to embody Africa customary law of succession by embodying some of its principles.  It was meant to provide the indigenous Kenyan with a statute that translated the African beliefs and customary practices to law and the Act embraces certain African customary law concepts such as polygamy, there are reference to wives and co-wives, the concept of the extended family, the provisions of the Act pertaining to dependants is wider in scope than the English concept because it was meant to cover members of the extended family.

The succession Act was meant to be passed together with the law of matrimony Bill in fact the commission which was appointed in 1968 to come up with recommendations was appointed at more or less the same time with the commission for marriage laws and the two commissions reported at about the same time around 1970-71 but whereas the law of Succession was passed in 1972 the Law of Matrimony Bill was not passed at all.  The failure to pass this bill presented a number of difficulties to the implementation of the law of Succession Act.

Law of Matrimony Bill
What were the objectives of the Law of Matrimony Bill?  To come up with a uniform law on marriage replacing the marriage statutes and also incorporating the principles of African Customary Law into the statute.  Family law is very important to the Law of Succession because of the whole question of his dependants, to determine who his family members were.  Most of the succession disputes turn on the question of marriage.  This is why govt intended that the Law of Succession come to be at the same time with the Law of Matrimony Act and the failure to enact the Law of Matrimony Act explains the delay in bringing the Law of Succession Act into force.  Parliament was unable to enact the Law of Matrimony Bill because there were provisions in it that parliamentarians were uncomfortable with such as the provision of conversion of polygamous marriages into monogamous ones.  Another provision would have allowed men married under statutes to marry second or third wives which section could have dealt away with Section 39 of the marriage Act.  Conversion required the consent of the wife married under Statute and this provision was not okay with the legislators.  The other problem was that the bill sought to introduce the provisions of the Affiliation Act which would have compelled fathers of children born out of wedlock to take care of those children and so the Bill never went through Parliament and so when Government saw it was impossible they brought into force the Law of Succession Act 8 years after.

There are constant conflicts of application of marriage laws and particularly on the question of polygamy, the Law of Succession Act recognises polygamy but the marriage statutes do not.  Refer to Re Ruenji and Re Ogolla which were Succession disputes where the deceased was a husband who had contracted the first marriage under Statute and subsequent to that marriage, in the case of Ruenji the husband went on to contract other marriages under African Customary Law and in Ogolla the husband proceeded to contract a second marriage under Luo Customary Law.  when the husbands died there were disputes on whether the spouses married under customary law and their children could inherit the deceased property.  The court held that the wives married under customary law were not wives and the children of the said marriages were not children for the purposes of the said succession.  This was because of Section 39 of the Marriage Act that the deceased husbands had no capacity to contract those other marriages.

Section 3(5) the Law of Succession says that notwithstanding the provisions of any other law, a woman married under a system of law which permits polygamy to a man who had previously or subsequently contracted a statutory marriage is a wife and her children, children for the purposes of succession.  This succession reverses the situations stated in Re Ruenji and Re Ogolla.  The effect of this is to make nonsense the whole idea of contracting a marriage under statutes.

The Law of Succession Act embodies certain principles of the English Law of Succession.  The Section on testate succession is largely based on the English principles of succession, one may even call it a reproduction of the common law production of succession.  It incorporates the principles of testamentary freedom  or freedom of testation.  This freedom is not absolute both at common law and under the Act.  It is embodied under Section 5 of the Kenyan Law of Succession Act and it is limited by Section 26 of the said Act.  Section 26 allows a dependant who is not provided for or is inadequately provided for from the Estate of the Deceased to apply to court for a reasonable provision out of the Estate and it empowers the court to interfere with the deceased’s persons distribution of the Estate in order to make adequate provisions for the disinherited dependants.


Testate Succession refers to the disposal of a person’s property after the death according to a will or a testament.  This is where the deceased has made written arrangements for the disposal of his property.

Intestacy leads to intestate succession.  Intestacy refers to the circumstance of dying without having made a will or having made a will that is invalid.  Rules of intestacy determine which relatives of a person inherit the property of a person who dies intestate. Under the rules of intestacy only blood relations of the deceased person are entitled to inherit but under a testate succession you can benefit anybody.

Administration of Estate – this refers to the management and distribution of the estate of a dead person.  Administration entails essentially the collection and preservation of the Estate, which make up the Estate of a dead person, i.e collecting debts owed to the State.  having collected and preserved the assets the administrators next responsibility is to settle debts owing by the Estate and after that distributing the remainder of the Estate to those entitled to a share of the Estate.  The person responsible for the administration is also known as a personal representative and the management of the Estate may also be referred to as a representation.  Representation in the sense that the administrator of the estate represents the deceased.  The property of the estate vests in the personal representative or administrator, he has power to sell, capacity to enter into contracts on behalf of the estate etc.  where the administrator or personal representative is appointed by the court he is known as an administrator but where he is appointed under a will he is called the Executor.

The Estate for the purpose of Succession means the total property both real and personal owned by a person, the Act defines estate as the free property of the deceased person i.e. property available for distribution under the rules of succession so that property that is subject of encumbrance is not free property and cannot be distributed unless the encumbrance is removed.

Grant of Representation – this is an order in the form of certificate issued by the court to confirm that a particular person is to act as a personal representative of a dead person.  In testate succession it is called a Grant of Probate while in intestacy it is a grant of letters of administration.

Codicil – this refers to a document made by a testator which alters, explains or adds to a will or testament.


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