Introduction

The purpose of the Law of Succession Act was to

codify and consolidate all the succession laws in
existence including but not limited to the Africa
customary law. The African customary Law is the
general law that applied to Africans in Kenya during
the colonial period. This varied from tribe to tribe.
However, the general principles were common
among all communities and this body of laws still
apply to indigenous Kenyans to date.
Application of African customary law
• African Customary Law is one of the sources of law in
Kenya as stated in Section 3 of The Judicature Act(Cap 8
Laws of Kenya). Further, Section 3(2) provides that both
the High Court and all Subordinate Courts shall be
guided by the African customary law in civil cases; only
when it’s not repugnant to justice and morality, or
inconsistent with any written law. The same came up in
the case of Wambui w/o Gatimu vs. Stephen Nyaga
Kimani. It was held that the custom was discriminatory
in effect, so as to bar women from inheritance. It was
repugnant to ordinary notions of justice and should not
be followed.
• Customs are traditions are time tested based on the wisdom
and experience. They should not be brushed off easily unless
there are compelling reasons determined judicially. This was
highlighted in the case of Kamete Ene Ateti Marine Vs.
Mosupai ole Ateti(1995), by Amin J.

• Sections 5(2) and 9(a) of the Magistrates’ Courts Act (Cap 10

Laws of Kenya), vests to it (Magistrate’s Court), the
jurisdiction over customary law matters. These matters
include claims under customary law as prescribed by the
Section 2 of the Magistrates’ Court Act; a claim concerning,
intestate succession and administration of intestate estates,
but only to the extent that such matters are not governed by
any written law.
• The customary law claims as set out in Section 2 of the
Magistrates’ Courts Act relate mainly to personal law matters.
The constitution of Kenya at section 82 allows the application
of different personal laws, regardless of whether such laws are
discriminatory or not. Section 82(4) of the Constitution enables
the enactment of discriminatory legislation on devolution of
property. In Mukindia Kimuru and another vs. Margaret
Kanario Nyeri CACA No. 19 of 1999, Shah J said, while
dealing with a matter touching on inheritance by daughters, that
section 82 of the Constitution sanctions exclusion of daughters
from inheritance by the court applying customary law in regard
to devolution of property on the death of the owner of that
property.
African customary law and the law of succession act.
Pursuant to section 2(1) of the law of succession act, the law of
succession act ,unless provided by the law of succession act itself or any
other written law, constitutes all succession matters (In the matter of the
estate of Mwangi Giture (deceased) Nbi HCSC no.1033 of 1996). thus
matters regarding succession can’t be determined pursuant to African
customary law unless it’s been provided so by the law of succession act
as seen in the matter of Mary Rono vs Jane Rono and another Eldoret
CACA No. 66 of 2002 where Waki J.A stated that the application of the
African customary law is expressly excluded by Section 2(1) of the law
of succession act itself.
• In his dissenting judgement, judge Bosire J.A was of the opinion that
African customary practices have a bearing in determining issues
touching on the estate of a deceased African. According to him, this is
by dint of section 3(2) of the judicature act. Unless such laws are
disregarded on the account by of repugnancy.
• The law of succession act however allows application of African
customary law in number of provisions;
• Estate of persons dying before the commencement of the law of
succession act.
• Testamentary disposition in accordance with African customary.
• The application of African customary law by section 33 in the event of
intestacy.
• Estate of persons dying before the commencement of the law of
succession act.
• Section 2 (2) of the law of succession act provides that estates of
persons who died before the commencement of the law of succession
act are subject to written laws and customs applying at the date of the
death.
• Prior to 1981, estates of persons who died intestate were exclusively
subject to African customary laws unless they had made wills under the
African wills act.
• In the matter of the estate of Mwaura Mutungi (Deceased) NBI HCSC
No 935 of 2003 Kamau J held that where the deceased died prior to the
commencement of the law of succession act, the distribution of his
estate is strictly under the applicable customary law and the
administration of the said estate is governed by the provisions of the
law of succession act as provided in section 2(2)
• Testamentary d African customary law and the law of succession act.
• Pursuant to section 2(1) of the law of succession act, the law of
succession act ,unless provided by the law of succession act itself or
any other written law, constitutes all succession matters (In the matter
of the estate of Mwangi Giture (deceased) Nbi HCSC no.1033 of
1996). thus matters regarding succession can’t be determined
pursuant to African customary law unless it’s been provided so by the
law of succession act as seen in the matter of Mary Rono vs Jane
Rono and another Eldoret CACA No. 66 of 2002 where Waki J.A
stated that the application of the African customary law is expressly
excluded by Section 2(1) of the law of succession act itself.
• ispositions in accordance with African customary law
• The law of succession act in section 5(1) allows the testator to dispose
of his property by reference to any secular or religious law. This would
allow the testator to make a will, which provides that the estate s should
devolve in accordance with a certain customary law.
• Application of African customary law by section 33 in the event of
intestacy.
• Section 32 of the law of succession act exempts some classes of
property from the intestacy provisions in the act. Section 33 of the same
act applies African customary law to such property. Further, the
provisions of the magistrates' courts act fill the gap. The Estates so
exempted from the law of succession act provisions are administered
under the African customary law. Rawal J. Found in the matter of the
estate of Mwaura Mutungi (deceased)NBI HCSC No. 1678 OF 1999
that the law of succession act applies customary law to the intestate
estate through section 33.
• GENERAL PRINCIPLES OF THE AFRICAN
CUSTOMARY LAW OF SUCCESSION
• Except for the Digo and the Duruma who were matrilineal,
most traditional African societies in Kenya were patrilineal. In
most African communities, the heirs are the deceased’s family
members as was stated in Mukindia and another v. Margaret
Kanario . Nyeri Court of Appeal civil appeal number 19 of
1999.The term family refers to the surviving spouse, children,
the siblings and the parents, In patrilineal communities. Where
the deceased is a woman, the heirs include her co-wives and
step-children. The dependants include the extended family and
members of the clan who are to be traced to the same ancestor.
 In Wambugi w/o Gatimu v. Stephen Nyaga Kimani,(1992) 2 KAR 292
it was emphasised that the term ‘patrilineal’ should be confined to the
natural issue of the deceased. In matrilineal communities, reference to
family means members of the woman’s family, her brothers, their
children, her mother, her uncles and aunts and their children.

The rules relating to distribution in all customary laws are not rigid. The
administrator has a very wide discretion to vary the rules in distributing
the estate, by taking into account: the means and needs of the
beneficiaries,the maintenance of the widows and unmarried daughters
among others. Another common factor in all customary laws, is that any
distribution to sons during the father’s lifetime is taken into
consideration.
• In most African communities, property passes according
to the rules of
• intestacy, but will making practice is also recognised and
it must not depart from the general pattern of
inheritance.The property may also be distributed during
the deceased’s lifetime to the heirs as they get married.
• The deceased’s distributable estate property includes
land, livestock, traditional movable property and modern
property. Other than property, the deceased’s duties or
obligations and rights over various persons, such as
widows, minors and other dependants, are also
distributed.
• DISTRIBUTION DURING LIFETIME
• Deceased has power to distribute his property during his
lifetime under customary law.Usually happens
particularly where the deceased is an elderly person.
•
• In Karanja v. Karanja, 1983 KRL 2001 it was stated that
normally the deceased would allocate to each son his
share of both land and marriage,upon getting married
whether the land given inter vivos is taken into account
as part of son’s inheritance share after the death of the
deceased varies from community to community as some
consider it so while others don’t.
• It enables the person depart from the general pattern of
inheritance upon intestacy and enables him/her to alter
the share’s to which each heir is entitled to under the
intestacy rules but he/she may not disinherit an heir in the
course of the lifetime distribution of his property.
Alienation of property especially land to strangers was
frowned upon distribution made during lifetime is final
and may not be altered by will.
• TESTATE SUCCESSION
• The will making institution is not uncommon among traditional
African.In Kinuthia Githinji John v. Githua Kiarie and others
Nairobi Court of Appeal civil appeal no 99 of 1998 it was stated
that a person may make his will during his old age or on his
deathbed.
• Purpose of the oral customary will appear to deal more with a
successor appointment to act as the head of the family with
responsibility over the deceased’s property and family rather
than to distribute the estate. The general rule where the testator
does allocate shares to the heirs,is that he cannot depart from
the basic intestate succession rules.
• In Koinange & 13 others v. Koinange,1986 KLR 23 it
was stated although the institution of will making is
recognized in KIkuyu customary law but the will must
not depart from inheritance general pattern.
• The person must first call a meeting of close relatives
Examples being wife, cousins, friends, sons e.t.c then
declare orally how his property is to be distributed
between them, item by item, should also appoint his
estate administrator and assign his/her debts and claims
to particular relatives.
• In Mukindia Kimuru and another v. Margaret Kanario, Nyeri Court
of Appeal civil appeal number 19 of 1999 it stated that under Meru
customary law,any man or woman who own property may make a will
provided that he or she is very old or on his/her deathbed.The will
would be valid if made in the presence of clan elders ,close relatives
and friends,by declaring who shall be his/her elder and and
administrator appointment.
• In Rufus Munyua [deceased]Public Trustee v. Wambui, 1977 KLR 137
it was held that under Kikuyu customary law,a valid oral will may be
made when the testator is on his/her deathbed in the presence of his
close relatives by declaring how his property is to be distributed item by
item and by appointing the administrator of his estate.Any person who
owns property may make a will ,provided he/she is advanced in age or
in his deathbed at common law.
• Young persons were not allowed by relatives to make a
will as doing so would be seen as inviting death.A person
who is drunk, insane or senile is not permitted to make a
will. Once a will is made does not take effect until the
maker’s death but it may be revoked or altered by the
same procedure used in making it.
• Testator allowed to deviate from the rules of intestacy to
an extent under customary law through will
making.He/she should not bequeath land to strangers but
may make small gifts to them in some case.
• He/she may will property to family members not entitled
in intestacy,but should not deprive an heir his/her whole
inheritance.May make gifts to his daughters but should
not include land.A testator is at liberty to alter the shares
of heirs to give more to one than another by will but may
not however disinherit anybody by will.
• DISTRIBUTION UPON INTESTACY
• Largely depends on the deceased marital status.Widows lose
any rights of inheritance upon their remarriage or moving back
to their parents as a rule.
•
• (a) Estate of a monogamist with sons and daughters.
• The widow is entitled to remain on piece of land given to her by
the deceased upon marriage,that is with respect to land upon her
death her portion goes to normally the youngest son who takes
care of her.She has the right to use and cultivate the land
together with the youngest during her lifetime.
• The rest of the land is equally divided among the other sons except the
eldest son who may receive a slightly larger share and,and the daughters
were not entitled to a share of the land.In Kanyi v. Muthiora, 1984
KLR 7126 it was held that land is inherited by sons to the exclusion of
married daughters under the Kikuyu customary law.This was also the
case in Wambugi w/o Gatimu v. Stephen Nyaga Kimani 1992 2 Kar
292.
• In Mukindia Kimuru & another v. Margaret Kanario, Nyeri Court of
Appeal civil appeal No 19 of 1999 Shan J stated that women do not
inherit land on their father’s side;they play their part in the family or
clan in which they marry under Meru customary law.
• In Duncan Gachiani Ngare v. Joseck Gatangi & Others Nairobi
High civil Court case number 1460 of 1977 Muli J left out the
daughters from the sharing of the deceased’s estate because females
do not inherit land or property from their fathers under Kikuyu
customary law.But rules of intestacy allow unmarried daughters to
inherit land in some communities.

• In Estate of Mutio Ikonyo, High Court Probate and Administration

number 203 of 1996 F.Mwera J stated that only unmarried or
divorced or those daughters who had their dowry returned can claim
to inherit under Kamba customary law.In Kanyi v. Muthiora, 1984
KLR 712 it was stated that unmarried daughters were allowed to
inherit land under Kikuyu customary law.The share of an unmarried
daughter with no child is for life but if she has an illegitimate male
child that child can inherit her share.
• Livestock distribution rules are the same as those for land. A
widow is entitled to keep livestock given to her by her husband.
Upon her death she reverts to her youngest son. The others get
equal share while the eldest may get a slightly bigger share and
he inherits ornaments and weapons. Daughters on the other
hand are not entitled to any share of traditional moveable
property, but the mother may give them crops.
(b)Estate of a polygamist with sons and daughters.
• Widows retain the land allocated to them by their husbands
during their lifetime,which reverts to their youngest son upon
the death.The rest is divided in equal shares by reference to
each house.In Kanyi v. Muthiora, 1984 KLR 712 It was held
that if a man with two or more wives died without making a
will under Kikuyu customary law.His land is equally shared by
the houses each wife and her children.It is irrelevant whether or
not the wives are alive or not as long as there are heirs under it.
• In Koinange & 13 Others v. Koinange, 1986 KLR 23 it was
held that the Kikuyu customary law of inheritance cardinal
principle is the observance of equality amongst the different
households of the deceased person.
• In John Ndungu Mubea v. Milka Nyambura Mubea Nairobi Court
of Appeal civil appeal number 76 of 1990 it was further held that
the senior house may receive a slightly larger share in the
distribution. The house is subsequently divided within each house
as in a monogamous household so is the livestock except that
received as dowry for a daughter which automatically goes to the
house from which the daughter was married and is not shared with
the other houses.
• Each widow retains the furniture in her house that is with respect
to immovable property. The crops on the other hand are distributed
according to the land on which they stand. The eldest sons of each
house share the deceased’s ornaments and weapons.
(c) Estate of a married man with one or more wives,no children
or daughters only.
• Each widow retains her portion of land and livestock given to her
by the husband during his lifetime.They also retain crops from the
land they were cultivating and their furniture in their houses.The
ornaments and weapons are inherited by deceased’s brothers.
(d) Estate of an unmarried man.
• It is usually shared out by his father if he is dead or absent, by his
next younger brother, if dead or absent,his next younger brother, if
dead or absent,his next older brother or by the son of his younger
brother or by the son of his next older brother or his half-brother or
the son of his half brother or his paternal uncles.
• In Mwathi v. Mwathi & Another, 1995-1998 EA 229 the court
held that where Kikuyu customary law applies to an intestate’s
estate,the property ought to be equally shared among the
deceased’s brothers,to the exclusion of the sisters,if any.
(e) Estate of a widow.
• It is inherited by her sons usually in equal shares, whether
inherited from her husband or not.The younger or oldest son in
some cases may receive a slightly larger share.Her deceased
husband’s brother would be her heir if there were no sons.
(f) Estate of a married woman.
• It is inherited by the husband upon her death whether
given to her by her husband or not.

(g) Estate of unmarried woman.

• It is inherited by her father or by her full brother in the
father’s absence.It is equally shared between the
brother’s where there are several.If she had sons they
take priority over everybody else and equally share the
property.
• In Mukindia Kimuni and another v. Margaret Kanario
Nyeri Court of Appeal number 19 of 1999, Shah J.A
stated that it was a matter of general notoriety that the
property of an unmarried girl is inherited by her father or
in his absence by her eldest full brother ,who is expected
to share in unspecified amounts with her other full
brother under Meru customary law.
PROOF OF AFRICAN CUSTOMARY LAW
• The spirit of the people of Kenya as expressed by the preamble of the
Constitution of Kenya, 2010 (hereinafter referred to as the
“Constitution”) provides for the recognition of the pride that Kenyans
hold in their ethnic, cultural and religious diversity, coupled with their
determination to live in peace and unity as one indivisible sovereign
nation. This forms the foundation upon which provisions such as
Article 2 (4) of the Constitution which provides for the supremacy of
the constitution and recognizes customary law and establishes it as a
valid law that forms part of the national laws and is therefore
enforceable to the extent of its consistency with the Constitution.
Furthermore, Article 10 establishes the role of the Government in the
promotion of natural and cultural expression, among other roles with
respect to culture.
• Already customary international law emphasizes on the
general practices that states have been practicing since
time immemorial and they are internationally binding on
state parties. Customary law is found more accessible,
easy, cheaper and simple to understand than formal
judicial system applied in common law regimes. In most
African countries, customary law is the law that regulates
the life of most people particularly in rural areas.
• When it comes to matters of succession, the Law of Succession
Act provides that the law shall govern it but when someone dies
the people usually follow Customary Law because succession
matters are personal. Kenya being a former colony of Great
Britain, it adopted the Common Law system and most of the
statutes created since the advent of this era have been a
reflection of the British values, and not necessarily African
values or traditions, as the laws were merely “copy-pated”,
hence its impersonal approach to African-specific matters of
succession; and that is why they still go back to customary law.
When it comes to interpretation of customary law, the court of
appeal and high court of Appeal and High Court on a number
occasions ruled that applicable law will be customary law that
made the Act ineffective.
• The Succession Act was intended to replace and limit the
application of Customary Law but in practice, the latter still
reigns supreme and that is customary law of succession still
applies to Africans who die without having a will (intestate).
Customary law is unwritten, therefore the law requires that it be
proven, and this is done through witnesses, who are acquainted
with the native customs until the particular customs have by
frequent proof in the courts become so notorious that the courts
will take judicial notice of them. This was laid out in Angu vs
Attah; where it was stated that native law is foreign law and it
must be proved as any other fact.
• Kenya applies The Evidence Act and The Civil Procedure Act as the
statutory basis for proof of Customary Law. Section 51 of The Evidence
Act provides that; “Evidence concerning opinions relating to custom or
right can be adduced by persons who are likely to know its existence”.
Witnesses need not be experts, they also need not be Africans. In
Ernest Kinyanjui vs Muiru Gikanga it was held that; “Where customary
law is neither notorious nor documented it must be established for the
courts guidance by the party intending to rely on it”. The case of
Wambugi Gatimu vs Stephen Nyaga Kimani, is used to show a
customary law that was given judicial notice from it being notorious in
court, it was about the Agikuyu custom that a married woman is not
allowed to inherit the fathers land , this was to ensure that property
remains within the family. These cases show that judicial precedent is
an acceptable mode of ascertaining customary law. Section 87 of The
Civil Procedure Act provides that the court may call in aid of assessors,
who have the duty to advice the court.
• Section 60(1) of The Evidence Act provides that courts should
take judicial notice of all written laws and all other laws, rules
and principles written or unwritten, having a force of law in the
any part of Kenya. The growth of written material for example:
textbooks articles, shows that this aspect of proof of customary
law has gained importance. Illustrated in Wanja Gichuru vs
Esther Watu Qachuhi ; the Court of Appeal treated Jomo
Kenyatta’s Facing Mount Kenya; the tribal life of the Gikuyu as
binding or conclusive on land inheritance among the Agikuyu.
Books or manuscripts purporting to describe customary law are
admissible evidence, statements of law treated as binding or
conclusive the book is an authority, but statements treated as
evidence of the customary law is ascertained as a fact.