MOI UNIVERSITY

ANNEX CAMPUS
SCHOOL OF LAW

SILAS KIPROP KANDIE

LLB/114/19
FLB 209: LAW OF SUCCESSION
COURSE INSTRUCTOR: Mr. Odundo
CONTINUOUS ASSESSMENT TEST
2020
Question 1
Even though the concept of inheritance is universal, the law of succession in Kenya has been
subject to difference in opinions on the same subject on the basis of race, tribe and religion
depending on whether the deceased is testate or intestate. Prior to the advent of the Law of
Succession Act in 1981, the law of succession in Kenya was widely varied between the people of
Kenya given that Africans had their own laws on succession, Hindus, Muslims and European
settlers likewise.
The Law of Succession applying to Africans pre-Law of Succession Act, 1981
Generally, the law of succession governing Africans was their customary law. This was made
easy given the fact that each African community had its own set of customary laws in place to
decide on such matters. In 1897, the East Africa Order-in-Council introduced the Indian
Succession Act, 18651 as the general law of succession that applied within its territory2. The
Native Court Regulations of 18973 provided that Africans who professed Christian faith were to
be subject to laws that governed Indian Christians on matters that affected personal status.
Shortly after, the Native Estate Administration Rules and Orders of 1899 vide Order No.11 of
1899, regulated the administration of estates of African Christians and vested the jurisdiction of
matters of administration of African Christians estates on native courts. The legislation further
provided that Africans who professed neither Christian nor Islamic faith were to be subject to the
laws of their tribe on matters relating to personal status given that such laws were ascertained
and were not repugnant to natural morality. In 1902, the East Africa Marriage Ordinance was
passed. It provided that Africans who had contracted a statutory marriage would be subject to
English laws of succession if they died intestate.4 English law would apply to personal and real
property disposed by will and the deceased's customary law would apply to real property whose
disposition could not be effected by testament.
In 1903, section 2 of the Application to Natives of Indian Acts Ordinance, 19035 disapplied the
Indian Succession Act to Africans. The passing of Native Christian Marriage Act Ordinance of
19046 which repealed section 39 of the East Africa Marriage Ordinance which had allowed
Africans who had contracted Christian marriages to be subject to English laws of succession,
made Africans to be subjected to their customary laws of succession irrespective of the type of
marriage the African had contracted. The decision of the court in the case of Miney Frances v
Kuri7 was founded on the Native Christian Marriage Ordinance, 1904 where it was held that
even though the deceased had contracted an Anglican marriage, it would not affect the
1
Act X of 1865
2
Article 11(b), Indian Succession Act
3
Article 64, Native Court Regulations
4
Section 39, East Africa Marriage Ordinance
5
Ordinance No. 2 of 1903
6
Ordinance No. 14 of 1904
7
Miney Frances v Kuri 24[2] KLR 1
succession of his property and the devolution of his property was thus still subject to the customs
of his tribe.
This was the case until 1961 when the African Wills Ordinance was passed. This was motivated
by Arthur Phillips publication, on Native Tribunals8. Arthur noted that colonialism had brought
along new forms of wealth acquisition models and market economy which the African
customary law, however adapted, could not accommodate. Such property discussed in Arthur's
publication were shares in companies, bank accounts, premium bonds and so on. He saw an
urgency to provide Africans with suitable legal machinery to dispose off such modern property
such as the laws in the English Inheritance(Family Provisions) Act of 1938. True to Arthur's
argument, the African Wills Ordinance was passed to enable Africans make written wills.
Intestate Africans would still be governed by their customary laws on matters of personal status
and administration of estates. The African Wills Ordinance remained in force until it was
repealed by the Law of Succession Act in 1981.
Significant milestones were witnessed with respect to succession of deceased Africans property.
In 1967, the Magistrates’ Court's Act vested magistrates’ court's with jurisdiction to settle
disputes arising from the distribution of assets of intestate Africans during succession.
The Law of Succession applying to Muslims pre- Law of Succession, 1981
In 1897, section 331 of the Indian Succession Act was not applied in Kenya. This meant that
Muslims were also subject to the laws of succession in the Indian Succession Act. However,
section 331 of the Act was applied vide Order No. 22 of 1898 by the Secretary of State. This
excluded Muslims from the ambit of the Indian Succession Act. Consequently, the Indian
Probate and Administration Act of 1898 was applied to Muslims in matters of probate and
administration of estates. The Native Court Regulations of 18979 had allowed the application of
Islamic laws on matters relating to the personal status of people who professed Islamic faith. The
Native Court Regulations, 1898 was re-enacted in 1907 in Ordinance No. 13 of 1907. This in
effect led to the establishment of Kadhi's courts and endowed them with full jurisdiction over
Muslims in issues relating to personal status, marriage, inheritance and divorce.
In 1920, the Mohammedan Divorce and Succession Ordinance was passed. This legislation
required that Islamic law be applied in personal and succession matters. This application was,
however, limited to instances where the deceased had contracted an Islamic marriage or where
the deceased was a child of such a marriage10.
This was the position of succession laws of Muslims until independence. At independence,
Muslims had threatened to secede from Kenya. The government was, therefore, forced to make a
constitutional bargain to prevent it from happening. The Muslims had wanted to ne governed by
their Islamic law on matters of personal status and the government gave them surety by
establishing Kadhi' courts in the constitution11.

8
Nairobi, Government Printer, 1945
9
Articles 57 & 59, Native Court Regulations of 1897
10
Section 4, Mohammedan Divorce and Succession Ordinance
11
Section 66 of the Independence Constitution of Kenya
When the Law of Succession came into force in 1981, it repealed all laws relating to succession
with the intent of making a uniform law of succession to all Kenyans thus ensuring
predictability, certainty and uniformity in the devolution of property across Kenya. Muslims
were not happy with this legislation as it was an abrogation of the agreement they had with the
government at independence. Of particular concern to the Muslims was section 5 of the Law of
Succession Act which provided for freedom of testation. This was against the Islamic beliefs.
Islam only allowed a third of a deceased's property to be disposed by will and section 5 was
allowing Muslims to will away all their property. Section 29 of the Act was also met with
contention. It defined dependants to include illegitimate children. In Islamic law, however,
illegitimate children did not have a right to inheritance. Furthermore, Muslims felt that the Act
was unconstitutional. This is because the constitution upheld the freedom of conscience and
religion. The jurisdiction of Kadhi's courts was also coined in the constitution and thus, the Act
was not in accordance with the constitution.
1990 saw the government clamouring for multiparty politics. Keen to have the support of
Muslims, the government gave in the towel and amended the Law of Succession Act. The Act
was amended by the Statute Law (Miscellaneous Amendments) Act12 which did away with
substantive provisions of the Law of Succession Act to people who were Muslims at the time of
their death. The amendment further reaffirmed the position of Kadhi's courts by stating that
Kadhi's courts would have jurisdiction regarding matters of Muslims’ personal status with
utmost regard of the Islamic law.
The Law of Succession applying to Hindus pre- Law of Succession Act, 1981
Like everyone else in Kenya in 1897, Hindus would be guided by the Indian Succession Act.
This was because section 331 of the Act had been disapplied in Kenya when the East Africa
Order-in-Council 8introduced the Indian Succession Act to its territory; Kenya. Section 331 of
the Indian Succession Act was applied in Kenya vide Order No. 22 of 1898 which in effect
meant that Hindus were no longer to be governed by the Indian Succession Act in matters of
Succession. The same Oder No. 22 of 1898 applied the Hindu Wills Act, 1870 and the India
Probate and Administration Act, 1881 to Kenya. The India Probate and Administration Act
applied to Asians to the exception of Goans and Parsees. The Hindu Wills Act, 1870 was to
provide for testate succession of Hindus with certain limitations. The limitations were that the
deceased must have been domiciled in Kenya. It also provided that the Hindu marriage must
have been contracted in Kenya for the legislation to be applicable. Since intestate succession was
not provided for, Hindu customary law filled the void.
In 1946, the colonial government applied the Hindu (Marriage, Divorce and Succession)
Ordinance13. The scope of the Hindu (Marriage, Divorce and Succession) Ordinance was
restricted. This was because the legislation only addressed administration of estates of Hindus
domiciled in Kenya. Hindus who had died in Kenya but were domiciled elsewhere could not
dispose of their property with the provisions of this legislation. Section 3(1) of the Act
necessitated that the Act be applied restrictively. The section demanded that it be applied only to
12
No. 2 of 1990
13
Ordinance No. XLIII of 1946
Hindu marriages that had been contracted within the colony. In the case of Bessan Kaur v Rattan
Singh14, this was evident. The plaintiff was the widow of the deceased. The deceased's only son
had inherited all of the deceased's property to the exclusion of his widow. The plaintiff claimed
maintenance from the deceased's estate under the legislation. It was held that she could not
establish any right of succession under the Hindu (Marriage, Divorce and Succession) Ordinance
because her marriage to the deceased had been contracted outside the colony while section 3(1)
of the Hindu (Marriage, Divorce and Succession) Ordinance restricted the scope of the statute to
only marriages that had been contracted in the colony.
Section 9 of the Act provided that where the deceased had died intestate and was domiciled in
Kenya at the time of his death, Hindu customary law on matters of administration of estate and
personal status would be applied in the distribution of assets.
In 1961, the Hindu (Marriage, Divorce and Succession) Ordinance was divided into two; the
Hindu Succession Ordinance, and the Hindu Marriage and Divorce Ordinance . The Hindu
Succession Ordinance was empowered to deal with matters of administration of estates in case of
intestacy by the deceased. Where the Hindu had died testate, the Hindu Wills Act of 1870 would
apply to distribute his assets. This was the case with relation to Hindu succession law until the
Law of Succession Act came into force in 1981 and repealed them.
The Law of Succession applying to European settlers pre- Law of Succession Act, 1981
The Indian Succession Act was passed in India om 1865 to govern succession matters for
Europeans, Goans and Parsees. The East Africa Order-in-Council thus deemed it fit that the
Indian Succession Act be used to sort out matters of succession and administration of estates
between the European settlers. Settlers wanted a law that would reflect the law of succession that
was governing their ilk in other colonies and the Indian Succession Act was their answer. Their
law of succession was basically the English law of succession with slight changes to fit their
status and way of life in the colony they had made their domicile. The Act provided for both
testate and intestate succession and administration of estates.
The Act allowed testamentary freedom to the testator, in that, the testator could will away his
property to whomever he wished by making a testament of it in the will. Succession of estate,
therefore, would strictly be to the people the testator had named in the will. This made it possible
for the testator to will away his property to a stranger without providing for his immediate family
members.
The settlers were not happy with section 105 of the Indian Succession Act which restricted their
testamentary freedom. The section provided that if the testator was to make a gift in the will, he
had to do so twelve months or more before his death. The provision was to cater for instances
when testator wanted to will away all his property in order to make peace with his maker at the
expense of providing for his immediate family. The twelve-month allowance would enable the
testator to sober up his decision. The settlers did not like this section and repealed it vide Order
No. 12 of 1932.

14
Bessan Kaur v Rattan Singh [1952] 25 KLR 24
Order 48 of 1956 brought about a major amendment to the Indian Succession Act. The
amendment provided that with respect to succession, when a person died leaving behind a cause
of action at thee time of his death, his estate would take up the cause of action on behalf of or
against the testator under the doctrine of survivorship. Order 48 of 1956 resulted in the present-
day Law Reform Act15.
The Law of Succession Act, 1981; Areas where need review and or Amendment
The Law of Succession Act has succeeded in unifying the laws of succession that applied to
Africans, Hindus, Muslims and Europeans living in Kenya before it was brought into effect in
the 1st of July 1981. Despite the resounding success that has met its enactment, the Law of
Succession has been prey to some challenges.
Firstly, there is blatant discrimination in succession through Islamic law. Islamic law provides
that only a third of the estate can be willed away. The remaining two thirds is distributed under
laws of intestacy whose source is the Koran. The Koran provides that when distributing a
deceased's estate, male dependants get double the share that female dependants get. Depending
on whether the marriage was monogamous or polygamous, the widow is entitled to a quarter or
an eighth of deceased's estate respectively. This is not equality in the spirit of the new
constitution.
Where agricultural land, crops and livestock are the only property owned by the deceased, the
rules of intestacy as provided by sections 33 and 34 of the Law of Succession Act have a
discriminatory effect towards women. Section 33 requires that such property; agricultural land
and crops, and livestock be subject to customary law which is largely male dominated given the
fact that Kenya is a patriarchal society. In the case of Martha Gukiya v Kibugi & Another16, the
deceased was survived by two daughters. In an appeal for grant for letters of administration, the
court granted the letters of administration to the deceased two brothers, who were the
respondents in thee appeal. The court argued that since the deceased had not been survived by
any sons or unmarried daughters, his rightful heirs would be his two brothers. The effect was that
even though the appellants were children of the deceased, they could not administer the estate of
their deceased father. Though the decision was overturned in appeal, it reflects the
discriminatory tendencies in the application of African customary law. This is in contradiction
with Article 27(1) of the constitution which provides that every Kenyan should be accorded
equal protection and benefit of the law.
Section 35(1) of the Law of Succession Act provides that if the surviving spouse is a widow,
then the life interest in the deceased's property shall determine if she remarries or dies. The
Marriage Act in its section provides that both a widow and a widower may remarry or elect not
to remarry. Section 35 of the Law of Succession Act is discriminatory as it provides that only in
the case of a widow being a surviving spouse, then if she elects to marry her life interest in the
deceased's property would determine. It is discriminatory given that Article 45(3) of the

15
Cap 26, Laws of Kenya
16
Martha Gukiya Thui & Another v Kibugi & Another [2010] eKLR
constitution provides that parties to a marriage have equal rights and obligations at the time of
marriage, during the time of marriage and at the dissolution of marriage.
Kenyan courts should, therefore, be empowered to apply the laws of succession with respect to
the guidance of the Constitution and other laws that shed light to the matter in question in order
to avert the risk of passing discriminatory judgments and abrogating the requirements of fairness
and equality in matters of administration of estates.
Question 2
Human life and acquisition of property go in tandem. In many jurisdictions around the world, the
question of how should a deceased's estate disposed off and to whom should it be disposed is one
of vital importance. These questions have found answers in the customs and practices of people
in their said communities. For instance, in Ancient Egypt people were buried with their property
since they believed that they would need that property to maintain themselves in their next lives.
From the preserve of their customs and culture, African communities had laws that guided them
in matters of succession. Western societies, as a consequence of canon law, believed that when
somebody died, their property would go to their immediate family. Religion also shed light on
how a decedent's property should be divided. An example is the Islamic laws provided in the
Quran that guide Muslims on how the property of a dead Muslim is supposed to be disposed of.
Conscious of the need for property to pass upon death, it becomes important to understand why
such rules of succession and inheritance are very important in the world of a defunct, a decedent;
a dead man17.
The freedom of testation is by far the most salient feature of the law of succession. This freedom
allows testators to apportion their estate to beneficiaries by will. Therefore, an owner of an estate
can distribute his wealth according to his wishes and the property will be disposed of as directed
by the testator himself even after his demise. The Law of Succession in Kenya allows an person
to make a will for the disposition of his estate so long as they are of sound mind and are adults
for the purpose of thee law18. When people make decisions as to how their property should be
divided after their death, it works to alleviate any disputes that may arise between the
beneficiaries out of the succession process. Seamless inheritance and administration of estates
give courts an easy time in ruling cases of succession.
The law of succession obligates the owner of an estate to provide for his immediate family
members. Even though testators have an express right to dispose their property as per their
wishes through testamentary disposition, they are mandated to provide for their immediate
family, especially when these members of their family depended on them to provide for them
during the lifetime of the testator. There lies upon the testator a natural obligation to provide for
his relations, not only during his lifetime but even after his death. Immediate family is construed
as the testator's wife and children or parents, brothers and sisters given the case the testator was
not married. Even where a will or a legally effective substitute is absent, and parties to succeed
are identified by application of rules of intestate succession, it is required that a fraction of the
property must be left for the surviving spouse and children.

17
TITLE IV, Succession, by the Law of Nature, by the Jewish Law, by the Civil and Feudal Law, and our Law:- Where,
Of Deathbed, Annus Deliberandi, and Kinds of Heirs in Scotland, The Institutions of the Law of Scotland, ed. JAMES,
VISCOUNT OF STAIR.
18
Section 5(1), Law of Succession Act
When the Intestate Estates Act of 1952 was passed in the United Kingdom, the need for the
deceased's property to be inherited by his immediate family was addressed. The rationale was
that they should inherit the estate since it was the decedent's estate that was responsible for
providing for the immediate family of the decedent even during the period of his lifetime.
However, it is important to note that even though owners of estates are obligated to provide for
their immediate family, this obligation should not extend as far as to deny them their right to
dispose of their property. The duty to provide is a personal obligation while the power of
disposal and succession is a real right. As a result, care should be taken to ensure that a
decedent's rights are not altered by his personal obligations; especially if the latter has been
sufficiently satisfied.
The laws of succession provide for the transfer of the testator's property or estate to those entitled
to it. By extension, this facilitates the conveyance of the estate of the decedent from his executors
or administrators to the beneficiaries of the estate. This helps in cases where beneficiaries are
minors. When the beneficiaries, who are minors, attain their age of majority, the will of the
deceased goes a long way in facilitating the conveyance of the property to them so that they can
own the property they had been apportioned by the deceased. This can be illustrated In the
Matter of the Estate of Ivy Murray Murton, Deceased19. In this case, the testator directed her the
trustees to hold property upon trust for her son until the son attained majority age. The son would
have a vested interest over the property before he became an adult. She gad directed that when he
attained majority age he was entitled to a conveyance of the property and that it be registered in
his name.
Over the years, close family members of decedents have suffered disinheritance despite being
apportioned the property by the decedent. The innovation of the laws of succession have worked
to combat this injustice. In some jurisdictions, the law of succession has forced heirship
provisions. These provisions are a feature of civil law jurisdictions and the dictums od Islamic
law. Forced heirship provisions confers an automatic entitlement of the estate to certain
individuals called protected heirs. Thus, though an individual has the freedom of testation which
allows him to decide how to will away their property and to whom, there are individuals who as
a matter of law must be beneficiaries to the estate. In most cases, protected heirs are the spouses
and children of the decedent. Section 111 of the Irish Succession Act 20 is an example of such
forced provisions. It demands that when the deceased leaves a spouse and no children, she
becomes automatically entitled to a half of the deceased's estate. When the deceased leaves
behind a spouse amd children, then the spouse is entitled to a third of the estate.
Similarly, in Islamic law, a deceased person is bound by laws that act as forced provisions. The
assertion that one cannot will away but only a third of his estate is such a provision. The Quran
further enunciates how the property is supposed to be shared. If the testator goes against the
direction set out by the Islamic laws, the will can be contested in Kadhi's courts to ensure that it
adheres to the forced provisions dictated by the Islamic laws.

19
In the Matter of the Estate of Ivy Murray Murton, Deceased [1938] 18(1) KLR 65
20
Section 111, Irish Succession Act, 1965
However, it is important to note that these provisions only apply to a portion of the decedent's
estate to ensure for the provision of protected heirs and their disinheritance thereof. Despite the
importance pf forced heirship provisions in facilitating succession, it has been met with
opposition. The opponents of this provision of the laws of succession argue that the state should
not impose restrictions on the distribution of an individual's assets in the event of their death
when it could not impose them validly when the individual was still alive.
Succession allows for the administration of the estate of the testator even after his or her death.
Administration of the estate after the death of a testator makes it easy to collect the property that
was owned by the testator and preserve it before the deed of the testator's testament is fulfilled. It
also helps to cater for costs such as the deceased's funeral, and all expenses that arise in fulfilling
the will in dividing the property between the beneficiaries. In cases where the deceased owed
debts, the administration of his estate caters for such debts too. The Law Reform Act provides
that causes of action against or on behalf of the estate are taken up by the estate's administrators
under the doctrine of survivorship. The administration of an estate is the duty of personal
representatives of the deceased, whether the deceased died testate or intestate. In the Matter of
the Estate of Yusuf Mohammed (deceased) Probate and Administration no. 434 of 1995
Mombasa High Court, the judge pointed out that it was the duty of a personal representative to
collect the free property of all the deceased and they are at liberty to reasonably exercise the
powers conferred by law when they pursuit such property.
Succession is, therefore, very important in making sure that the wishes of the deceased in how to
divide their property is respected. Subsequently, it also ensures that the people he had intended to
be his beneficiaries are not frustrated when the estate is being divided. The law today being very
conscious of the rights of children, the position of minors in inheritance is sufficiently addressed
to ensure that they are represented and, ultimately, that they benefit from their inheritance.