A. Introduction

“When it comes to divide an estate, the politest men quarrel.”
By Ralph Waldo Emerson

Succession or inheritance is defined in the Black’s Law Dictionary 5th Edition as “the devolution of title to property under the law of descent and distribution. The Law of Succession Act (Cap 160 Laws of Kenya) (“the Principal Act”) which governs succession in Kenya has been operational for decades following its enactment in 1981.

Over the years, courts have on numerous occasions dealt with the question of ‘who is legally entitled to inherit from a deceased person’s estate?’. As society changes, there is need for law reform so as to reflect the current values and needs of the modern society. It has been argued that the Principal Act, disenfranchised legitimate beneficiaries of a deceased’s person, thus, giving the impetus for law reform to respond to these concerns.

 

B. Brief History

The Law of Succession During a Pre-Colonial and Colonial Period in Kenya

In Kenya the law around succession has evolved over the years. There is the law applicable in pre-colonial Kenya that mainly revolved around the customary laws of Africans, Arabs and Indians. During the colonial period all African, despite their religious faith or education were subject to succession in accordance to African customary law and as it got closer to independence the more Africans were brought into succession in accordance with the statutory law of succession (Musyoka , 2020).

In review of a post-colonial law of succession was mainly based on English system on the statutory provisions of the law of succession, and in exceptional cases African Law was adopted.

Many a time, the courts have been called upon to determine whom are the persons entitled to inherit from a deceased persons estate. The Law of Succession initially failed to incorporate African dynamics on family such as polygamy, the concept of family in an African context differs from European contexts and African customary law on inheritance. Over the years the law on succession has been amended to incorporate these factors through amendment of the act or through judicial precedent from the courts.

 

The Law of Succession in Kenya After Independence.

In the case of Mary Anne Matanu Kivuitu vs Samuel Mutua Kivuitu (1991/92- Kenya Appeal Reports: 241) Gachuhi, JJA, remarked “The time when an African woman was presumed to own nothing at all, and all she owned belonged to her husband and was regards as a chattel of her husband has long gone”

In certain instances, the law recognized cohabitees as spouses for purposes succession, this was noted in the doctrine of ‘presumption of marriage’. Cohabitees were man-woman union that were contracted without undergoing a formal marriage ceremony recognized by any regime of law governing marriage. The doctrine emanates from the application of the doctrine of common law, as per Section 3(1)(c) of the Judication Act.

In the case of WM v Murigi [2008]1 KLR (G&F) 348, the High Court held that if a man and woman cohabit, and hold themselves out as husband and wife, this in itself raises a presumption that they are legally married. In the case of Peter Hinga v Mary Wanjiku Nairobi civil appeal number 94 of 1977, Miller J found a recognizable form of marriage between the parties even in the absence of a ceremony to conclude the customary marriage. He presumed a marriage between the parties. And in the case of Yawe Hortensia v Public Trustee civil appeal number 13 of 1976, the couple had cohabited for nine years in the matrimonial home, and even the deceased mother had visited the wife’s home and although no traditional ceremony had been carried out. The Court of Appeal held that even though the rituals had not been completed the couple was married as they held themselves out to be a couple.

However, there are instances where the court have not upheld the doctrine such as the cases of Case v Rguru [1970] E.A 55, Mary Njoki v John Kinyanjui Mutheru & Others Civil Appeal No. 21 of 1984; Kisito Charles v Rosemary Moraa Misc. Civil Case No. 364 of 1981. In such instances a woman could lose property allegedly entitled to her, by virtue of the death of her ‘husband’. This would leave room for the husband’s relatives, children, or even former wives inheriting the property.

 

Constitution of Marriage Under the New Constitutional Dispensation

Under the Constitution of Kenya, 2010, the provisions of Article 45 took cognizance of the family unit is subject to protection of the state. Article 45 (2) & (3) of the Constitution provided that;

“(2) Every adult has a right to marry a person of the opposite sex, based on the free consent of parties.
(3) Parties to a marriage are entitled to equal right at the time of marriage during the marriage and at the dissolution of the marriage. ”

Article 45(4) placed a responsibility on parliament to implement legislation that recognizes that marriage can be concluded under any tradition, or system of religious, personal or family law, and any system of personal and family law under any tradition, or adhered to by persons professing a particular religion.

Accordingly, the Marriage Act, No. 4 of 2014, was assented on 29th April 2014, and commenced operation on 20th May 2014. Part IX of the Act provides for registration of marriages, and Section 59 categorically provides that proof of marriage is subject to evidence that is limited to a certificate or and entry on the register of marriages.

 

C. The Law Of Succession (Amendment) Act, 2021

The Law of Succession (Amendment) Act, 2021 (“The Amendment Act”), which was initially an Amendment Act sponsored by Homa-Bay Town MP Peter Kaluma and was assented to by the President on 17th November 2021. The principal object of the Amendment Act is to give legitimate dependants of a deceased person a claim and a right in the deceased’s intestate estate.

 

D. The Amendments

  1. The Amendment Act introduces the term spouse under Clause 2, defined as follows;
    “a husband or a wife or wives recognized under the Marriage Act
  2. The Amendment Act under Clause 3 amends Section 29 of the Principal Act by providing the following definition of dependants. The following persons are recognized as dependants under the Amendment Act;
    1. The spouse and children of the deceased whether or not maintained by the deceased immediately prior to his death; and
    2. Such of the deceased’s parents, step parents, grandparents, grandchildren, step children, children whom the deceased had taken into his family as his own, brothers and sisters and half-brothers, half-sisters as were being maintained by the deceased immediately prior to his death.
  3. The Amendment Act under Clause 3 also introduces Section 29 (2) which provides as follows;
    A person not named in this section shall not be a dependant for the purposes of this Act unless the person proves maintained by the deceased for a period of two years prior to the deceased’s death.

 

E. Implications Of The Amendments

(a) Non-Recognition of Former Wives.

Former wives are no longer as persons entitled to deceased’s estate for purposes of succession. The recognition of former wives as dependants under Section 29 (a) of the Principal Act has been done away with.

The Principal Act under Section 29(a) reads;

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;

The said section has been amended to read

The spouse and children of the deceased whether or not maintained by the deceased immediately prior to his death; and

This therefore means that only a spouse i.e., a husband or a wife or wives recognized under the Marriage Act is recognized as a dependant for purposes of succession under section 29 of the Act. On the understanding of the Marriage Act, then the term of spouse is one that has registered their marriage. In the case of Mary Wanjuhi Muigai v Attorney General & another [2015] eKLR, Ngugi J (as she then was) held that:

In the circumstances, it is my finding that the present petition is merited to the extent that is detailed above. My responses to the two issues that it raises are as follows:

  1. That section 6 of the Marriage Act must be read as including all marriages celebrated under all religious faiths duly recognized and registered in Kenya.
  2. That the practice of polygamy and registration of polygamous marriages without the consent of the previous wife or wives is inconsistent with the equality provisions of the Constitution

Therefore, recognition of spouse is despite the religious or personal beliefs of a deceased it is mandatory that the same be subject to having a registered marriage.

(b) Widowers Need Not Prove Maintenance for Purposes of Succession

The Amendment Act has done away with section 29C of the Principal Act which provides;

where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

It has been argued that the above section was biased as only husbands were required to prove maintenance immediately prior to the wife’s death.

Widowers now fall under Section 29 (a) and need not prove maintenance for purposes of succession. The amendment introduces a gender-neutral approach, and the interest of a spouse is shall fall under the gambit of Section 35 of the Law of Succession Act, which provides;

35. Where intestate has left one surviving spouse and child or children:

    1. the personal and household effects of the deceased absolutely; and
    2. a life interest in the whole residue of the net intestate estate:
      Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person
      Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to—
  1. A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date.

(c) Persons Not Within the Degrees of Consanguinity Qualify as Dependants Upon Proof of Maintenance Two Years Prior To The Deceased’s Death

The Amendment Act introduces Section 29 (2) which reads;

A person not named in this section shall not be a dependant for the purposes of this Act unless the person proves maintained by the deceased for a period of two years prior to the deceased’s death

This amendment opens up the window for persons not within the recognized degrees of consanguinity as long as they can prove that they were being maintained by the deceased two years prior to the deceased’s death.

Previously, the law recognized dependents as falling within the following groups;

  1. The wife or wives, or former wife or wives and children of a deceased whether or not maintained by the deceased immediately prior to his death;
  2. Such of the deceased’s parents, stepparents, grandparents, grandchildren, stepchildren, children whom the deceased had taken into his family 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
  3. Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

The Black’s Law Dictionary 7th Edition defines a dependent as;

Dependent, 1. One who relieves on another for support; one not able to exist or sustain oneself without the power or aid of someone else…

Lawful dependent. 1. One who receives an allowance or benefit from the public, such as social security. 2. One who qualifies to receive a benefit from private funds as determined within the terms of the laws governing the distribution.
Legal dependent. A person who is dependent according to the law; a person who derives principal support from another and usu. May invoke laws to enforce that support.”

 

Furthermore, the term maintain can connote ‘to support (someone) financially’, therefore, the aforesaid can welcome persons whom a deceased maintained to claim a right having being maintained by the deceased. This would therefore welcome, any ‘Mpango wa Kandos’,’ Clandes’ and/or ‘Slay Queens’ even cohabitees, that the deceased provided for prior to his death, so long as such maintenance was within 2 years prior to the death of the deceased.

 

E. Issues Arising & Way Forward

With the amendments, there is room for persons whom do not fall within the rank of consanguinity to allege to be dependants. We shall therefore await judicial precedents by the court on to how far this provision may be applicable.

 

This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set out in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact Caxstone Phelix Kigata; Kennedy Kithinji Mathiu or Damaris Katumbi Muia vide caxstone@wamaeallen.com or kennedy@wamaeallen.com or damaris@wamaeallen.com.

 

About the author

Partner at Wamae & Allen

Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.

Kennedy has gained his experience in the arena of Dispute Resolution by acting for and advising both local and international clients in a myriad of disputes and preparation of various agreements. Over his years of practice, Kennedy has engaged in complex and high value litigation before the Court of Appeal, High Courts, as well as Quasi-Judicial Tribunals such as the Public Procurement Administrative Review Board, Tax Appeals Tribunal and international dispute resolution bodies. 

Damaris Muia

Damaris is an advocate trainee

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