Succession law in Kenya is governed primarily by the Law of Succession Act (Cap. 160), supplemented by the Constitution, the Children Act, 2022 and judicial decisions. This guide draws the framework together for families navigating an estate, whether testate or intestate.
Sources of Kenyan succession law
The Law of Succession Act provides the principal framework. The Constitution (Articles 27, 60 and 65) guarantees equal inheritance rights and shapes land succession. The Matrimonial Property Act, 2013 protects spousal interests. Customary and Islamic law apply in defined circumstances under Sections 32–33 of the Act.
Testate succession — when there is a will
The executor named in the will petitions for a grant of probate. The will must be in writing, signed by the testator and witnessed by two persons who sign in the testator's presence. Oral wills are valid only briefly (three months) and only in restricted circumstances.
Intestate succession — when there is no will
The estate is distributed under Sections 35–40. The surviving spouse takes the personal and household effects and a life interest in the residue. Children share the remainder equally. Polygamous estates are divided by house under Section 40.
Dependants and reasonable provision
Section 26 allows the court to make reasonable provision for any dependant of the deceased, including a child of any age, a wife, a former wife receiving maintenance, parents and grandparents who were being maintained by the deceased.
Equal rights of daughters
Article 27 of the Constitution and the Law of Succession Act guarantee equal inheritance for daughters. Customary rules that exclude daughters are unconstitutional and have been struck down in the High Court repeatedly.
Process and timelines
A petition is filed at the High Court (or magistrate's court with succession jurisdiction). Gazette publication for 30 days invites objections. If none are filed, a grant issues. Confirmation under Section 71 follows at least six months later. Uncontested matters typically take 8–12 months from filing to confirmation.
Common disputes
Omitted dependants seeking provision under Section 26. Objections under Rule 17 to applications for grant. Revocation of grant under Section 76 where material non-disclosure or fraud is established. Disputes over polygamous distribution. Customary claims over ancestral land that conflict with statutory rules.
Estate planning to avoid disputes
A clear will, witnessed properly and kept safe with an advocate; a separate digital asset memorandum for crypto and online accounts; updated beneficiary nominations on insurance and retirement savings; and frank family conversation about intentions — these four steps prevent the majority of contested estates.
Citations & further reading
Frequently asked questions
Who can object to a grant?
Any person with an interest in the estate — a dependant, beneficiary, creditor or person claiming under a competing will. Objections are filed under Rule 17 of the Probate and Administration Rules within 30 days of gazettement.
Does customary law still apply to succession?
Yes, in limited cases under Sections 32–33 of the Act, but always subject to the Constitution. Discriminatory customs are unenforceable.
Can I disinherit a child in my will?
You may attempt to, but Section 26 allows a dependant child to apply for reasonable provision. The court will consider the child's circumstances, the size of the estate and the testator's reasons for the disposition.
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.