When a Kenyan dies without a valid will, the estate is administered as an intestate estate under Part V of the Law of Succession Act (Cap. 160). The Act — not the family or the clan — determines who inherits, in what shares and on what conditions.
Who can apply for letters of administration?
The surviving spouse takes first priority, followed by adult children, parents, siblings and other dependants in descending order. Up to four administrators may be appointed jointly. Diaspora dependants commonly petition through Kenyan advocates and appoint a co-administrator resident in Kenya.
How an intestate estate is distributed
Where the deceased leaves a spouse and children, Section 35 grants the spouse the personal and household effects and a life interest in the residue (terminated on remarriage for a widow), with the children taking the remainder in equal shares.
Where the deceased leaves a spouse but no children, Section 36 grants the spouse the personal and household effects and the first KES 10,000 (or 20%) of the residue, with the remainder going to the parents, siblings or further relations.
Polygamous estates
Section 40 treats the wives and children of each house as a separate unit for distribution. The estate is divided according to the number of units, ensuring each house receives a proportionate share regardless of when the relevant marriage was contracted.
Children born outside marriage
The Children Act, 2022 and the Constitution treat all children equally for purposes of succession. A child born outside marriage inherits on the same terms as a child of the marriage, subject to proof of paternity where contested.
Process and timeline
A petition is filed at the High Court (or magistrate's court with succession jurisdiction), supported by the death certificate, an affidavit of dependants and a schedule of assets and liabilities. The court gazettes the application for 30 days. Where no objection is filed, a grant issues, with confirmation following at least six months later under Section 71. Uncontested matters typically take 8–12 months.
Why drafting a will matters
Intestate distribution is rigid and frequently produces results the deceased would not have chosen. A short, properly witnessed will avoids most disputes and saves the family months of expense and conflict.
Citations & further reading
Frequently asked questions
Does the eldest son inherit everything?
No. There is no rule of primogeniture in Kenyan statutory law. The Law of Succession Act distributes the estate among the surviving spouse and all children equally, regardless of sex or birth order.
What happens to a house registered only in the deceased husband's name?
The Matrimonial Property Act, 2013 protects the surviving spouse's beneficial interest. The house typically forms part of the estate but the spouse's contribution and matrimonial home rights are protected during distribution.
Can the family agree to divide the estate without going to court?
Distribution requires a confirmed grant. Informal family agreements are not enforceable against third parties and cannot transfer land or bank accounts; the formal process must be followed.
Related practice areas
This article is for general information only and does not constitute legal advice. Readers should obtain specific counsel on their particular matters.