LAND SUCCESSION IN KENYA: THEORY AND PRACTICE

By Ronald Matende Omwoma (BA, MA, Dip, LA)
A private Land Administration Expert

Paper presented to Institution of Surveyors of Kenya (ISK) South Rift Seminar on
Saturday 24th October, 2015 at NAC

1.0: Introduction
1.1: Background
The Kenya National Land Policy notes that ‘land can be acquired through inheritance which entails, testate or intestate succession’ (GOK, 2008). It further noted that majority of Kenyans rarely follow the succession act, and instead transmission of land rights upon death is undertaken within customary and religious systems which discriminate against children and women. Such systems also rarely leads to legal and documented land tenure security, hence further complicating the chances of the future generations to access secure land.
Many Kenyans perceive the legal land succession process as tedious, complex, inaccessible and expensive. This has made the majority of Kenyans to live on land for which they don’t have a title. The government and other stakeholders in land have for some time now been pre-occupied with finding ways of making the land succession process easier, cheaper and more accessible to the majority of Kenyan especially those living in rural areas. In the
National Land Policy the government undertook to:
1. Sensitize and educate Kenyans on the provisions of the law of succession Act;
2. To expedite the application of the law of succession Act; and
3. To require that all Kenya Gazette notices pertaining to succession cases be posted at the lowest local administrative level and at market centres.
1.2: Purpose and Objectives of the study
Land succession which is referred to as transmission in the Kenyan land act of 2012, is one of the most common methods of accessing land in Kenya. Succession is based on the traditional right to inherit property between different generations for the purpose of preserving the family heritage. In Kenya many land inheritors don’t go beyond the traditional inheritance procedure which confers defacto rather than dejure ownership rights to land, and thus ends up without legal ownership documents to the land they occupy. Defacto ownership has exposed many land owners especially in rural areas to prolonged ownership conflicts, disinheritance and other problems related to land tenure insecurity.
The purpose of this paper is to enlighten the land professionals and general public on the provisions of the succession Act Cap 160 of the Laws of Kenya, especially in terms of rights, obligations, legal protections and procedures. This is expected to empower land professionals

and enable them to offer services that may assist the citizenry on matters related to land succession. The paper is conceived within the recent initiative by Institution of the Surveyors of Kenya (ISK) to contribute towards empowerment of land professionals and the general citizenry on matters of land administration that touch on procedures, rights, obligations and legal protection. Lack of understanding of land administration processes and procedures and legal provisions for land rights and obligations has led to massive disinheritance; escalation of land related conflicts; long drown court cases; and rent seeking behaviours unscrupulous brokers. Specific objectives of this presentation are:
1. An overview of the legal provisions relating to intestate and testamentary succession; and the administration and transmission of the estates of deceased persons
2. Identify areas of potential conflict in the act especially in relation to the rights, obligations and legal protection of women and children
3. Explain the current procedures and processes governing land succession in Kenya
4. Identify main points of litigation related to land succession in Kenya.
1.3: Methods
The information and knowledge in this study has been derived mainly from the Succession
Act cap 160, scholarly articles and relevant court proceedings. This is basically an informative study that uses descriptive methods to disseminate information and knowledge for technical use by land professional. Though the last section of the study brings in some elements of critical thought through conclusions and recommendations, this paper is not based on serious scientific methods.
1.4: The theory of property Succession
The Black Law dictionary (5th edition) defines succession or inheritance as devolution of the title to property under the law of descent and distribution. Inheritance is the practice of passing on property titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies. The rules of inheritance differ between societies and have changed over time. In law, an heir is a person who is entitled to receive a share of the deceased's (the person who died) property, subject to the rules of inheritance in the jurisdiction where the deceased (decedent) died or owned property at the time of death.

Succession theory attempts to rationalise different rights, obligation and protections given to different interests in the succession process under different systems. Succession theory derives from the customary or common law principles of inheritance and is intrinsic in all legal provisions dealing with succession. Inheritance of land and other assets and liabilities is based on certain pertinent beliefs and philosophies derived from lifelong historical experiences of asset owners. Any theory of inheritance may help explain why and how certain inheritance practices are carried on in the manner observed today. The theory may for instance explain why female children or female spouses are discriminated upon in some circumstances, what happens when the female spouse remarry and so forth. The observation of the theory may explain the tremendous diversity in the rules and norms that govern the inheritance of real property across different societies and cultures (Baker and Micelli, 2005).
Some cultures give preference of inheritance to the surviving spouse, some to the elder sons while some give such rights to the youngest son in the family. In each case, there is a set of beliefs and philosophies derived from experiential knowledge to justify the practice.
Ultimately, each community or state has its own ways of identifying heirs to the estate and criteria for administering and distributing the estate of the deceased person. Presently, few scholarly analyses of inheritance rules and practices give credence to the theory behind the practice while addressing conflicts in succession process. However, in Kenya many rules of inheritance are based on criteria of entitlement rights rather than preservation of economic production. This has led to subdivision of land into small uneconomic parcels leading to environmental degradation and social desperation.

Detailed anthropological and sociological studies have been made about customs of patrilineal inheritance, where only male children can inherit. Some cultures also employ matrilineal succession, where property can only pass along the female line, most commonly going to the sister’s sons of the decedent; but also, in some societies, from the mother to her daughters. Some ancient societies and most modern states employ egalitarian inheritance, without discrimination based on gender and/or birth order (downloaded on 15/10/2015: https://en.wikipedia.org/). Inheritance, under many customs is full of inequalities. The distribution of the inherited wealth is often unequal. The majority might receive little while only a small number inherit a larger amount, with the lesser amount given to daughter in the family. Arguments for eliminating the disparagement of inheritance inequality include the right to property and the

merit of individual allocation of capital over government wealth confiscation and redistribution, but this does not resolve the problem of unequal inheritance (ibid).
Asset inheritance regimes for a given society have immense impacts on the social status of the heir. The degree to which economic status and inheritance is transmitted across generations determines one’s life chances in society. Although many have linked one’s social origins and educational attainment to life chances and opportunities, education cannot serve as the most influential predictor of economic mobility (ibid). Often, minorities and individuals from socially disadvantaged backgrounds receive less inheritance and wealth
(ibid). Many also fail to document their heritage land leading to failure to realize maximum economic benefits from using their assets to leverage investment capital (De Soto 2000).
According to Free Legal Website, ‘Inheritance law governs the rights of a decedent’s survivors to inherit property. Depending on the type of inheritance law your state (or community) has, a surviving spouse may be able to claim an inheritance despite what you may have written into your will. This statutory right of a surviving spouse hinges on whether a state follows the community property or common law approach to spousal inheritance.
Children, and sometimes grandchildren, also have a right to claim an inheritance when a parent or grandparent dies’
Rights of a spouse may differ depending on whether the laws are based on customary practices or common law. In USA for instance laws made under community property law entitles a spouse to half ownership of the property of which the spouse has a right to dispose of in anyway. These laws provide a clear demarcation of property rights within marriage regardless of the name in which the title is registered. Each spouse has a right therefore to give a will to his/her share to any other entity other than the spouse upon death.
Unlike a surviving spouse in a community property state, a spouse is not entitled to a one-half interest in all property acquired during the marriage under common law principle. In a common law state, both spouses do not necessarily own the property acquired during marriage. Ownership is determined by the name on the title or by ascertaining which spouses’ income purchased the property if a title is irrelevant. If, for example, only one spouse takes the title to a property, the spouse with the name on the deed owns the house even if the other spouse actually paid for it.
Several criteria exist for inheritance. In the capitalist north where land is configured to generation and preservation of wealth, three most popular philosophies are: primogeniture ultimogeniture and equal distribution among deserving heirs (Baker and Micelli, 2005).
Primogeniture is an inheritance rule which assigns the entire family estate to the first son. In

Europe primogeniture emerged in the thirteenth century and kept spreading up to the eighteenth century. It was most common among the feudal nobility and whenever land represented the primary source of wealth (Bartocchi, 2006). A variant of primogeniture is unigeniture, which can take the form of ultimogeniture when the designated heir is the youngest child (Bartocchi, 2006). However partition, where all the heirs are entitled to equal share of the estate is taking more prominence globally. The advantage of primogeniture inheritance is in avoiding the subdivision of an estate into uneconomic units and preserving the economies of scale of the estate. However rent seeking seems to be eroding the economic benefits of this system.

Recent trends, in reaction the unpredictable behaviours of the

administrator, tend to move the whole concept towards common management trusteeships by the beneficiaries or their nominees. The dominance of equal partitioning may take effect in future as the main source of wealth worldwide shift from land to capital (Bartocchi, 2006).
The criteria for succession evolves depending on the development stage of given community, be it primitive, peasant, agrarian or capitalistic.
In theory the power of the testator in a will is absolute, however a husband cannot, by will deprive his wife of that share of his property to which the law thinks she is justly entitled to, nor can a wife deprive her husband of his share in her estate (Morton Jr, 2015). Thus, a valid, fair and legally sound will is an absolute document and has the effect of a court order.
The laws of succession are not universal and tent to be tainted by different sheds of local customs and beliefs of the people. Morton, Jr, (2015) has identified three salient principles which he considers pertinent to every law of succession: ‘should aim, first, to consider the wishes of the former owner; second, to secure adequate provision to his family and those dependent on him; third, to promote the equalization of fortunes, it being manifestly out of keeping with democratic ideas for the State to foster the concentration of wealth’. Different cultures and circumstances necessitate the granting of emphasize to any one principle.
However Morton, Jr, (2015) opines that:
A scientific law of succession, therefore, while not blind to what the owner's wishes would have been, will regard them with much less consideration than it will be the rights either of his family or of the rest of the community’.

Justice and fairness seem to be emerging as the main scale of measuring and granting interest in the estate of the deceased by the present courts of law.

2.0: Overview of succession Act in Kenya
2.1: Introduction
Succession laws world over tend to provide for, and prescribe the rules which determine the devolution of a person’s estate after his death, and all matters incidental thereto. They identify the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons
(for example, beneficiaries and creditors) may have in a deceased's estate.
In the following section we give an overview of the succession act in Kenya (cap 160) underlining pertinent issues of the act that requires attention.
The laws of succession Act in Kenya provides for laws relating to intestate and testamentary succession and the administration of estates of the deceased persons. The reading of the laws is indicative of a combination of various beliefs and customs of the people of Kenya over succession. Specifically the laws cover the following topic: validity and management of a will and provision for dependents in the will; gifts and contemplation of death; intestacy; survivorship; administration of estates and miscellaneous provisions.
2.1: Wills and codicils
A will is defined as a declaration by a person of his wishes or intentions regarding the disposition of his property after his death, duly made and executed according to the provisions of part II of the Law of succession act cap 160 and includes a codicil. A codicil on the other hand means a testamentary instrument made in relation to a will, explaining, altering or adding to its dispositions or appointments, and made and executed in accordance with the requirements of the Succession act cap 160. The Act also gives power to testator to appoint and executor or executors of his will (sec. 6). However, failure to appoint executor(s) does make a will invalid if it adheres to other criteria.
2.1.1: Validity of a will
Part two of the Act provides situations and features which makes a will valid or invalid.
These aspects include capacities of the persons to make a will; formalities or forms of wills; revocation, alteration and revival of wills, and guidelines on how to construct a will. The validity of a will may be evaluated on three main criteria: capacity where wills by people who are mentally unsound or unstable mind and minors are unacceptable. Unstable mind is described as from mental or physical illness, drunkenness or other causes that may cause mental instability.

Section 7 makes wills caused by fraud, coercion, importunity or mistake null and void.
Section 8 provides for acceptable forms of wills: oral will or written wills. Features required to make oral and written wills valid are described
Form of will
a) Oral will
Section 8 state that no oral will shall be valid unless:
1. It’s made before two or more competent witnesses
2. Unless the testator dies within a period of three months from the date of making the will (merchant marine and members of armed forces exempted).
3. No oral will shall be valid if, and so far as, it is contrary to any written will which the testator has made whether before or after the date of the oral will.
A competent independent witness will be required in case of any conflict of witnesses as to what was said by the deceased in making oral will. An independent witness is defined as a witness who is not a beneficiary under a will or the spouse of any such beneficiary. While a competent witness means a person of sound mind and full age.
b) Written will
Section 11 gives conditions under which a written will may be valid. It states that no written will shall be valid unlessa) The testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;
(b) the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;
(c) the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Section 13 to 14 provides for the proper execution of the will and directs the manner in which witnessing may be procured and its effect. It recognizes that a beneficiary or executor of the will can also be witness to the will. However, ‘a bequest to an attesting witness or to his/her spouse shall be void, unless the will is also attested by at least two additional competent and independent witnesses.

The author of the will has the power, when he is competent to dispose of his free property to revoke, alter and revive his will (sec.17 to 21). A will can be revoked by another will, a codicil declaring an intention to revoke it, or by burning, tearing or destroying the will by the testator with intention of revoking it. However, a written will cannot be revoked by an oral will. Section 19 provides for the automatic revocation of a will upon marriage of the testator unless the will had taken the impending marriage into account.
Obliterations, interlineations and alteration made in a written will after execution will not have any effect unless the changes are counter signed by the testator and attested. The first
Schedule of the Act gives detailed directions on how an acceptable will may be constructed.

2.2: Provisions for dependents
Part III of the succession act gives direction on how dependents may be provided for in a will and puts more highlights on situations where dependants are not adequately provided for by will or on intestacy. This is a very crucial part of the act as it tends to recognize the different rights of different categories of dependants. Dependants are defined in section 29 as:
‘the wife or wives , or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; deceased parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken in as his own, brothers and sisters, and half brothers and half-sisters, as were being maintained by the deceased immediately prior to his death and; where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death’.
The recognition of dependents is listed in hierarchy of importance with spouse (s) topping the priority followed by children. Note that there is a difference between dependants and beneficiaries and the law is always avoiding using the word beneficiaries because it connotes entitlement right.
Out-rightly, it should be noted that a will cannot be invalidated by the manner in which it has distributed the estate to the beneficiaries but it can be adjudicated as unfair or fair in a court of law if contested on such grounds (see section 26). Where a will or intestacy does not make reasonable provision for a dependent, the court may ‘order that such reasonable provision as the court thinks fit be made for that dependent out of the deceased’s net estate’
Section 27 gives the court complete discretion ‘to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit’. Circumstance to be

to be taken into account by court in making orders, are relisted under section 28 (a-g) and include the testators reason for not making provision for the dependent.

2.3: Gifts in contemplation of death
Part IV provides conditions under which gifts made in contemplation of death shall be valid, not withstanding that there has been no complete transfer of legal title. These include delivery to the intended beneficiary of possession or means of possession of property or of documents or other evidence of title thereto; and if a gift is made in such a circumstance as to show that he intended it to revert to him should he survive that illness or danger; if that person dies of that illness or danger; and the indented beneficiary survives the person who made the gift to him. However ‘no gift made in contemplation of death shall be valid if the death is caused by suicide or if the person making the gift legally requests its return at any time before he dies.
2.4: Intestacy
Section 34 gives effect to meaning of intestacy by stating that ‘ a person is deemed to die intestate in respect of all his free property of which he has not made a will which is capable of taking effect’. This is a very crucial section and of immense interest to the general public, as most properties in Kenya are affected by this situation. Section 34 to 42 should be read very keenly as they prescribe how the intestate estate should be distributed under different circumstances and touches on the power, rights and obligations of the spouse(s) and children in the intestacy together with their entitlements.
1. Where intestate has left one surviving spouse and child or children
Section 35 prescribes what happens where intestate has left one surviving spouse and child or children. In this case the surviving spouse shall be entitled to- ‘the personal and household effects of the deceased absolutely; and a life interest in the whole residue of the net intestate estate. However, the law adds a contentious over rider by stating that if the surviving spouse is a widow the life interest in the intestate estate shall determine or cease upon re-marriage to any person. A surviving spouse has power of appointment of all or any part of the capital of the net estate by way of gift taking immediate effect among the surviving child or children.
Any child has a right to resort to court where he /she feel that the power of appointment given to the spouse has been unreasonably exercised or withheld.
If the surviving spouse dies or widow remarries the residue of the net intestate estate shall devolve upon the surviving child or be equally divided among the surviving children.

Power of spouse during life interest in an intestate state is provided for in section 37 and includes the power to sell any of the property subject to consent of all co-trustees and all children of full age or with the consent of the court.

2. Where intestate has left one surviving spouse but no child or children
The surviving spouse shall be entitled to:
a) the personal and household effects of the deceased absolutely; and

(b) the first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater; and
(c) a life interest in the whole of the remainder: Provided that if the surviving spouse is a widow, such life interest shall be determined upon her re-marriage to any person.
Upon the determination of life interest created under this section due to death of the spouse or remarriage the interest shall devolve in the order and priority as where intestate had left no surviving spouse or children (see sec 39).

3. Where intestate has left a surviving child or children but no spouse
Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of this act, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.
4. Where intestate has left no surviving spouse or children
In this circumstance, the net intestate estate of the deceased shall devolve upon the kindred of the intestate in the manner provided for under section 39 of the Act.
Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.
5. Where intestate was polygamous
Be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
Conclusion
The above section has provided an overview of the features which makes a will valid or invalid and the limitations of a will and; rights, obligations and entitlements of dependent and beneficiaries. It is important to note that Property devolving to a child will be held under a trust, while the act also allows previous benefits to be brought into account when sharing the net intestate estate accruing to beneficiaries.

2.5: Areas of potential conflict in the act
In this section we look at sections of the act that are likely to generate conflict and litigations.
Several areas of potential conflict or even contradiction have been pointed out in the succession act. The main contestation rests on the perception that succession whether formal or traditional tends to give more inheritance rights in principle and practice to men than women (Gedzi, 2012).
Bowry (2015) has made critical observations about the discriminatory nature of the succession act in Kenya. He notes that:
1. “The tripartite confluence of the 2010 Constitution, the marriage laws contained in the
Marriage Act and Matrimonial Properties Act and the old Succession laws creates anomalies for a special class of Kenyans – the widows and ladies who cohabit without conducting formal marriages. The rights of children born out of wedlock are also un provided-for where the putative father dies without acknowledging parentage”.
2. Laws of intestacy provided for under Part V of the Law of Succession Act do not apply to areas such as West Pokot, Turkana, Marsabit, Samburu, Isiolo, Mandera,
Wajir, Garissa, Tana River, Lamu, Kajiado and Narok. This is certainly in contradiction to Article 27 (1) of the Constitution, which provides for equal protection and benefit of the law.
3. Section 35 of the Law of Succession Act, in confusing terminology, states that
“subject to the provisions of section 40, where an interstate has left one surviving spouse and child or children, a surviving spouse shall be entitled to the personal and household effects of the deceased absolutely and a life interest in the whole residue of the net estate provided that if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person”.
4. Section 40 of the Act states, “...where any intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.”

5. The plight of a surviving spouse being a widow surfaces in the non-appreciation of what is a “life interest” and Kenyan courts have defined a life interest as “an interest in real or personal property measured by the duration of the holder’s or another person’s life”. The end result is that a widow can enjoy a lifetime of income from a husband’s property but upon re-marriage or death loses that right absolutely. Where the assets in issue are land or even shares in a company, the widow would only be entitled to enjoy the income from the land and dividends since in most cases the asset itself would belong to the child /children of the deceased. Is all this fair taking into account the gender-sensitive provisions of the Constitution? The Constitution under
Article 45 (3) provided that parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage.
The same provision is repeated in Section 3 (2) of the Marriage Act, 2014 but succession laws seem to give different rights to a wife. Though Section 15 of the
Marriage Act also provides that a widow or a widower may remarry or elect not to remarry, Section 35 of the Law of Succession Act, by providing that, “if the surviving spouse is a widow that interest shall determine upon her re-marriage to any person”, is discriminatory. Whether we admit it or not there is a mammoth social problem where
Kenyan men after death are discovered to be maintaining concubines, mistresses and multiple families which have no right in law to the deceased’s estate if the deceased opts not to make a will, or disregards the relationship in the will. The new definition of marriage vis-à-vis succession laws remains a thorny question. Was the deceased legally married to the person with whom he lived is a question often posed after death.
There are many raging court battles – which go on for years – where various parties are attempting to prove marriage in suspect situations. The Marriage Act, 2014 makes matters worse as it does not recognise long cohabitation as a form of marriage.

3.0: Procedures and processes of land succession
3.1: Administrative structures
Succession process in Kenya has been described as complex, bureaucratic, inaccessible and expensive. In this section we present procedures and processes involved in succession in a more simplified manner in order to demystify the common perception about inaccessibility held by the majority of Kenyan. The procedures and processes are provided for in part VII

under administration of estates. This part of the Act provides for actions that should be undertaken to ensure efficient administration of the deceased’s estate and transmission of the estate to the beneficiaries. This section of the act also appoints actors and institutions responsible for administering the process.
When someone dies, the first thing that should happen is to ensure protection of his free properties. Section45 states that it’s an offence to interfere in any way with the free property of the deceased person except by authority of the succession Act, grant of representation or any other law. Section 46 of the succession Act gives authority to police officers or administrative officers to protect the free property of the deceased and assist in commencing the succession process. In practice, the administrative officers include mainly chiefs, assistant chiefs and village elders. The administrative officers have power under section 46 of the act to protect the free property of the deceased, to ascertain the number of properties belonging to the deceased and identify persons appearing to have any legitimate interest in succession to or administration of his estate. The administrative officer has a duty also to offer guidance to prospective executors or administrators as to the formalities and duties. The administrative officer may also report the death to the public trustee.
Section 47 gives jurisdiction to the high court to entertain and determine any disputes under succession Act but gives delegated powers to resident magistrate’s court. Appeal against orders made in the resident magistrate’s court in respect of the estate shall be made in high court whose decision thereon shall be final.
3.2: Procedure for procurement of Grants letters of administration
3.2.1: Application for grant (sec. 51-52)
Application for grant shall be made in a prescribed form, signed by the applicant and witnessed in the prescribed manner. Every application shall include the information as required in section 51 (1-4) of the Succession act. Where there is no legal backing to confirm the information, a supporting letter from local administrator will suffice. The name of the deceased, date and place of death and last known residence will be indicated by the death certificate which must be attached (See the guidebook on procedures and processes of land administration in Kenya for simplified procedures).

3.2.2: Forms and Grants
There are three main forms of grant. Where a written or oral will exist, the nature of grants issued may either be a probate of will or letter of administration with the will annexed. In case of an intestacy grant letters of administration in respect of the intestate estate will be issued. However, a court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make as provided in the fifth schedule to this Act.
The limitation concerns situations where the will is lost or misplaced; where the executor is absent or is a minor, where the beneficiary is of unsound mind, pendent lite (pending suit touching on validity of will), where the will is limited in purpose , person had no beneficial interest etc. ( see sec. 9- 18 of the fifth schedule of the Act).
Section 55 disallows distribution of capital or the estate before confirmation of grant but allows distribution of income that may arise from the estate after death.
3.2.3: persons entitled to the grant
No grant of representation shall be made to a minor, person of unsound mind or a person adjudicated bankrupt. Equally, no grant of letters of administration with or without a will shall be made to a body corporate other than public trustee or Trust Corporation. Section 57 states that ‘no grant shall be made to a syndic or nominee on behalf of a body corporate’.
Section 58 to 66 gives more prescription for entitlement by different entities in the succession process. Given that many court litigations related to succession arise from the area of entitlement it’s important for those concerned to read these sections keenly. However it’s important for me to mention at this stage as a matter of emphasize, the preferred persons to administer the estate where the deceased died intestate (sec.66). The section states that:
‘When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—
(a) Surviving spouse or spouses, with or without association of other beneficiaries;
(b) Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V (see particularly sec. 39);
(c) The Public Trustee; and

(d) Creditors:
Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will’.

3.3: Procedure on grant
Before any grant may be made by the court, it is mandatory for notice of application for grant be published, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication. Notice of objection to the application for grant shall be lodged in court on prescribed forms within the period specified or such a longer period as the court may allow. The objector must file an answer to the application to the application or a cross application within a specified period. Where this happens the court shall proceed to determine the dispute. However it should be noted that the absence of notice of application for grant does not affect grant of temporary or limited grant issued for the purpose of collection and preservation of assets of the deceased. The court has the power to administer oaths or affirmations, call for further evidence on the matter and do other things for the purpose of ascertaining facts before issuing grand of administration.
Section 71 -73 gives direction on how the grant of administration may be confirmed and circumstances under which it may be rejected. It should be known that it’s the duty of the court to give notice to the holder of grant to apply for confirmation (sec. 73) but this rarely happens in practice. Section 74 to 76 provides for procedure for alteration and revocation of grants after or before confirmation.
Section 79 to 95 of the Act are very important as they provide for the powers and duties of personal representatives who are the executors or administrators of the estate of the deceased.
This is of interest especially given that many administrators have previously misused their powers and frustrated the beneficiaries. In some cases the personal representatives have turned into rent seeking agents or ransom taking villains. These sections ellaboratively provide for what the personal representative(s) should do in different circumstances and what they should not do; and when the beneficiary has a right to go back to court to seek redress

4.0: Main points of litigation in land succession.
Many litigations concerning succession have been witnessed in this county. In many cases the dispute relate to exclusion from the estate, unfair distribution, forgery of documents or false presentations. For the purpose of this paper, I searched for cases related to succession in the Kenyan courts
(http://kenyalaw.org/caselaw/cases/actions/). However, one case which seems to bear all the hallmarks of succession disputes in Kenya was selected (attached). What we learn from this case is that there is no time limit to raising an objection especially when the grounds are strong; and that confirmation of grant does not preclude legal disputes in succession cases. In this case we learn a few lessons including:
1. It’s wrong to Exclude those who are entitled to the estate by law (spouses and children) 2. Customary norms and beliefs may be cited as evidence but are only admissible when they are not repugnant to the constitution (don’t discriminate or violate fundamental rights )
3. Limitations of the jurisdiction of the lower court by the value of an asset
4. Concealment of material facts about the estate and beneficiaries
5. The right of an objector to be heard
6.

Distribution must be agreed upon before final confirmation

7. Failure to diligently administer deceased’s estate is litigable
8. Mandatory under probate and administration rule for the applicant to disclose all surviving children of the deceased.
9.

Children not interested into the estate need to renounce their rights

10. Non married or divorced daughters have equal rights to sons
Previous Litigations and judgements on matters of succession are very important learning points and a good source of information on the general social theory on land succession and trends in evolution of social thought.

4.1 Conclusions
The law of succession act 160 is well balanced and provides for sufficient protection of the widow (Kameri-mbote, 1995), however strong arguments from customary rules have had an impact on how the estate of the deceased is administered and distributed. However the main problem related to succession in Kenya does not concern lack of provision for certain entitlements for different parties, but inaccessibility to the formal succession process by the majority of Kenyans. Inability to accessing formal succession systems has been attributed to

education, remoteness, knowledge of law, financial resources and lack of right consciousness among the citizens of Kenya.
4.2: Recommendation
1. People should be sensitized, educated and encouraged to avoid intestate court procedures by preparing Wills. This system is easy, less expensive and final. Final in such a manner that a valid and legally sound will is equivalent to a court order by the deceased owner of the property.
2. Succession should be done at the lowest level possible to increase accessibility.
Efforts to appoint residents magistrates courts as agents of high court should be strengthened or land and environment courts should be taken at the sub-county level to increase access.
3. Second adjudication programme should be instituted in areas which benefited from the 1950 to 1980 adjudication process. This is based on the observation that peoples’ consciousness of the value of a valid title to land has increased tremendously based on achievements in education, spread of capitalism and other phenomenon of modernization. 4. Increased education and awareness campaign on rights, obligations, legal protection and procedures of land succession to empower the citizens.
5. The link between marriage, matrimonial property, succession, and land laws should be scrutinized with a view of harmonizing their performance to achieve greater protection of spouses and children during the succession process.

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Fails Everywhere Else. Basic Books, New York.
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Ghana, Research on Humanities and Social Sciences, vol. 2 (9), 2012
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Western Europe, 1200-1800. Cambridge University Press, Cambridge.
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(Oct. 25, 1894), pp. 161-167

Kameri-mbote, Patricia (1995): The law of succession in Kenya: Gender perspectives in property management and control. Women and law journal
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Inheritance. Economic History Review 3, 477-499.
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Maina, W.M., 1992, Marriage and Succession: a conflict Precipitated by the inclusion of section 3(5) into the Law of Succession act. LLB dissertation, University of Nairobi
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J.M., Morton, (1894): the theory of inheritance. Harvard Law Review

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 236 OF 2010
IN THE MATTER OF THE ESTATE OF MUKORA MUKII (DECEASED)
JOSEPHAT MWANGI MBUTHIA.........1ST OBJECTOR/APPLICANT
WILFRED MUKORA MBUTHIA.....................................2 ND
OBJECTOR/APPLICANT
VERSUS
MICHAEL P. MUKORA MUKII...............................1 ST PETITIONER/RESPONDENT
MICHAEL MUKII MUKORA..................................2ND PETITIONER/RESPONDENT
JUDGMENT

1. The deceased Mukora Mukii died intestate on 8th August 1978. The petition for grant of letters of administration intestate was filed in the Chief Magistrate’s Court at Kiambu in
Succession Cause of 158 of 2001. The grant was issued to the petitioners on 28 th August
2001 and confirmed on 12th October 2009. The deceased left two parcels of land, namely
Githunguri/Riuki 276 and Githunguri/Riuki 407. In the confirmation, parcel 276 was shared as follows:-

a. Michael P. Mukora Mukii (1st petitioner) ..........5.955 acres;
b. Michael Mukei Mukora (2nd petitioner)............ 4.455 acres;
c. Maria Wakio Mukora...........................................4.455 acres; and
d. Aloys Kamau Mukora ........................................4.455 acres.

Parcel 407 was shared as follows:a. Michael P. Mukora Mukii (1st petitioner) ..........0.395 acres;
b. Michael Mukei Mukora (2nd petitioner)............ 0.395 acres;

c. Maria Wakio Mukora...........................................0.395 acres;
d. Aloys Kamau Mukora ..........................................0.395 acres; and
e. Hannah Wangui Kiguta.........................................0.25 acres.
2. On 11th February 2010 the objectors filed summons for the revocation and/or annulment of the grant. The grounds were that:a. the proceedings leading to the grant were defective in substance;
b. the grant was fraudulently obtained before the Kiambu court which court had no jurisdiction to handle it and that the petitioners concealed material facts; and
c. the petitioners have failed to diligently administer the estate of the deceased and had failed to produce to court a true inventory showing the value of the assets of the estate.

In the affidavit sworn by the objectors, they complained that the petitioners had not disclosed all the survivors and/or beneficiaries of the deceased at the time of petitioning for grant and had gone ahead to exclude some of the survivors/beneficiaries from inheriting the estate. They stated that the confirmation and distribution had not been agreed upon by all the heirs of the deceased. Their mother was a daughter of the deceased and had filed objection to the confirmation, the objectors said, but had died before the hearing of the same. The result was that the confirmation had been done without the objector being heard. Upon her death, they had taken over the objection. Lastly, they claimed that the estate was in excess of
Kshs.100,000/= and therefore beyond the monetary jurisdiction of the trial court. 3. The 1st petitioner swore a replying affidavit to say that the objectors’ mother participated in the proceedings before Kiambu Court and at no time was the issue of jurisdiction raised.
The petitioners agreed that the objectors’ mother Hannah Muthoni (a daughter of the deceased) had an objection pending before the court and that she died before the same was heard. They stated that the objection was not prosecuted because her advocates failed to come to court. The grant was confirmed and the distribution done. Neither Hannah nor her children (the objectors) were provided for in the distribution. The petitioners’ case is that
Hannah was a married daughter of the deceased and, under Kikuyu customary law, she could not inherit from the estate of the deceased. It followed that the objectors who were the children would also not benefit from the estate. The application for revocation was opposed on these grounds.
4. Both the 1st petitioner and 2nd objector gave evidence, each in support of his case. I have considered that evidence.

5. Before dealing with the substantial complaint by the objectors, I will briefly consider the issue regarding the jurisdiction of the magistrate’s court to handle the Cause. It is clear that under section 48 of the Law of Succession Act (Cap. 160), the court’s jurisdiction was limited to handling an estate whose value did not exceed Kshs.100,000/=. In the affidavit sworn by the petitioners in support to the petition for letters of administration intestate that was filed on 13th July 2001 the value of the estate was estimated at Kshs.100,000/=. In the affidavit that was sworn objecting to the confirmation no issue was raised about this estimate.
The affidavit was sworn by Mumbi Mukora (mother of Hannah) who was one of the widows of the deceased. The court therefore proceeded on the estimate. Parcel 276 is about 19 acres.
It is situate in Riuki in Githunguri in Kiambu. It would certainly be in excess of
Kshs.100,000/= in value. But there was no valuation of the land and this issue did not feature before the court. It cannot be raised here under the circumstances.
6. From the evidence and the affidavits filed it is clear that the deceased had seven widows.
They were:
a. Wambui Mukora who had had children namely Mary Wakio and Elizabeth Njambi;
b. Mumbi Mukora who had the child Hannah Muthoni Mbuthia (the mother of the objectors); c. Mwithia Mukora who had one child (2nd petitioner);
d. Nyakeru Mukora who had three children namely Peter Maina Mwaura, Wanjiru Mukora and 1st petitioner;
e. Serah Njeri who had five children namely Francis Mukii Mukora, Peter Maina Mukora,
Aloyce Kamau Mukora, Nyakio Mukora and Ngendo Mukora;
f. Njeri Mugo who had no child; and
g. Gachambi Mukora who had no child.
7. The petition filed shows that Mumbi Mukora consented to the filing of the same.
However, she filed an affidavit to challenge the confirmation of grant and denied that she was the owner of the thumbprint on the affidavit in support of the petition. She denied the consent. She further stated that the distribution in the application for confirmation had not been agreed upon. These were serious contentions that required resolution. She was represented. She died before her objection was heard. An application was successfully made to get her daughter Hannah to step in her shoes to prosecute the application. Hannah also died before the objection was heard. By the time the grant was confirmed the objection was still pending. Without going into the merits of the objection, it is clear that the confirmation was done without hearing Hannah. Whatever claim that her mother, and herself, had to the estate was consequently not adjudicated upon. Better still, Mumbi Mukora was the deceased’s widow and therefore a beneficiary. She represented one of the houses of the deceased. Her consent was required before the estate was distributed at the confirmation.
Section 51 of the Act required that the beneficiaries be disclosed at the filing of the petition
(In the matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias

Mwaura Mbura (Deceased) Nairobi H.C Succ. Cause No. 935 of 2003). Even if Mumbi was disclosed, Hannah was not. She was the deceased’s child. Section 51(g) of the Act requires that:“in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child or his or hers then deceased” should be given by the petitioner when filing the petition.
Further, rule 7 of the Probate and Administration Rules confers a mandatory duty on the applicant to disclose all surviving children of the deceased. In respect of Hannah, this was not done. Under section 76(b) of the Act failure to disclose a beneficiary in the petition is a material matter that should lead to the revocation of the grant (In the Estate of Ezekiel
Mulanda Masai, Eldoret High Court Probate and Administration 4 of 1992). It should be recalled that Hannah, being a daughter of the deceased, was a person of equal priority whose consent was required. (In the Matter of the Estate of Marioko Njeru Migwi
(Deceased) [2014]eKLR). She had not renounced her right to petition for the grant. It follows that the proceedings leading to the grant were defective in substance, and therefore the grant should be revoked (In the Matter of the Estate of Muriranja Mboro Njiri,
Nairobi H.C. Succ. Cause No. 890 of 2003).

8. Mr Muhia for the petitioners raised the issue that the deceased died in 1948, and the Law of Succession Act came into operation on 1st July 1981, and therefore that the law applicable to the estate was Kikuyu customary law (section 2(2) of the Act). Counsel argued that under
Kikuyu custom, Mumbi Mukora was only entitled to a life interest in land, and because
Hannah was a married daughter she could only inherit the estate of her father. The response by Mr Gichohi for the objectors was that there was evidence that Hannah had divorced her husband and, together with the children, returned to her father’s home where she was buried when she died. She was therefore entitled. The 1 st petitioner testified that Hannah was not divorced. However, he was cross-examined to admit that when she died she was buried on her father’s land (parcel 276). The reason was that she had nowhere to be buried. He (1 st petitioner) did not object to the burial. This fact of burial on her father’s land, and not on the land of her husband, would support the objectors’ case that she had been divorced. These were some of the issues to be determined before confirmation. Whatever the case, a custom that condemns a woman and denies her the right to benefit from her father’s estate because she is married would straightaway offend Articles 20 and 27 of the Constitution of Kenya
2010. The court would not allow Hannah to be discriminated upon on account of her marital status. The objectors have to be allowed to pursue their late mother’s claim to the estate of the deceased.
9. In conclusion, the application dated 10th February 2010 is allowed with costs. The grant issued to the petitioner on 28th August 2001 and confirmed on 12th October 2009 is hereby revoked. There will be a fresh grant of letters of administration intestate in the joint names of

Michael P. Mukora Mukii and Michael Mukii Mukora and Josephat Mwangi Mbuthia. These three and the other beneficiaries shall be at liberty to discuss and agree on fresh distribution.
Otherwise, they shall be at liberty to file application for confirmation after the expiry of thirty
(30) days from today.

DATED and DELIVERED this 22nd day of September 2015.
A.O. MUCHELULE
JUDGE