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From the blog

Legal sharing of the property of a deceased

Inheritance in Kenya is guided by the Law of Succession Act Cap 160 of the Laws of Kenya. Under this Act, a person may either die testate or intestate. A person dies testate when he has made a valid will on how his property should be distributed on his death. A person dies intestate when he has not made a will on how his property will be distributed on his death or his will has been invalidated.

If a person is of sound mind, then under Section 5 of the Law of Succession Act, he may dispose of all or any of his free property by will and may thereby make any disposition by reference to any secular or religious law that he chooses. However, if a dependent is left out of the will of his provider, Section 26 of the Law of Succession Act allows for him to apply for reasonable provision out of the estate of the deceased.

In a case where a person dies intestate, the Law of Succession Act considers two scenarios. The Act provides for both monogamous and polygamous situations. In case a monogamous person dies and leaves a spouse and a child or children, the relevant sections of the Act are sections 35 and 37. In such a situation, the spouse is entitled to the personal and household effects of the deceased person absolutely and a life interest in the whole of the residue of the net estate. Section 3(1) defines personal and household effects to mean clothing, articles of personal use, furniture, utensils, appliances, pictures, ornaments, food, drinks and all other articles of household use and decoration normally associated with a matrimonial home. This does not include anything related to the deceased’s business or profession. The surviving spouse enjoys the residue of the estate in her lifetime and it then devolves to their children when she dies. Under the proviso to Section 35(1), if the surviving spouse is a widow and she remarries, then the life interest in the property terminates.

Section 3(5) of the Law of Succession Act provides that regardless of the provisions of any other written law, a woman married under a system of law which permits polygamy is a wife for the purposes of inheritance and her children are entitled to inherit even if her husband has contracted a previous or subsequent monogamous marriage. Other women claiming to be the wives of a deceased may be entitled to inherit his property together with their children. However, this is conditional on their proving that they underwent some ceremony of marriage in a system that permits polygamy. This position was stated to be correct by the Court of Appeal in the case of Irene Njeri Macharia v Margaret Wanjiru Njomo and another Civil Appeal No. 139 of 1994.

In the above scenario, the estate would then be dealt with as that of an intestate polygamist under section 40 of the Law of Succession Act. Under the section, the personal and household effects and the residue of the net estate shall be divided among the houses according to the number of children in each house and adding any surviving wife as an additional unit to the children. The wives shall then hold the residue of the net estate in trust for their children while having a life interest.

The Law of Succession Act in Section 3(2) defines adopted, legitimate and illegitimate children as children for the purposes of inheritance. This means that they have the right to inherit the property of their parents on an equal footing with biological children born within wedlock.

Where a deceased is survived by a spouse and children, no other relatives are entitled to benefit from the estate. The only way they can benefit is by making an application to the court through section 26 of the Act, as a dependant of the deceased immediately before his death.

A person who commits the murder of the deceased is barred from inheriting his property on public policy grounds courtesy of section 96 of the Law of Succession Act!

Writer: John Chigiti. Senior partner in the firm of Chigiti & Chigiti Advocates.


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