Legal Review: How Is an Intestate Estate Distributed Where the Deceased Leaves No Spouse or Children?

Article By Z.O.G

When a person dies without leaving a valid will, the distribution of their estate is governed by the intestacy provisions of the Law of Succession Act, Cap. 160.

A particularly important question arises where the deceased leaves neither a surviving spouse nor children. In such circumstances, who is entitled to inherit the estate?

Section 39 of the Law of Succession Act provides the statutory framework for determining the beneficiaries of such an estate. However, the provision must now be read alongside the Constitution of Kenya, 2010, particularly the constitutional guarantee of equality and freedom from discrimination.

This is significant following the High Court's decision in Ripples International v Attorney General & another; FIDA (Interested Party) (Constitutional Petition E017 of 2021) [2022] KEHC 13210 (KLR), in which the Court declared sections 39(1)(a) and (b) unconstitutional to the extent that they gave a father priority over a mother in inheriting the estate of an intestate child who died without a spouse or children.

The Statutory Framework Under Section 39

Section 39(1) of the Law of Succession Act provides that where an intestate has left no surviving spouse or children, the net intestate estate devolves upon the deceased's kindred in the prescribed order of priority.

The statutory order is:

1.      The father, or if deceased, the mother;

2.      Brothers and sisters, and any children of deceased brothers and sisters, in equal shares;

3.      Half-brothers and half-sisters, and any children of deceased half-brothers and half-sisters, in equal shares; and

4.      Relatives who are in the nearest degree of consanguinity, up to and including the sixth degree, in equal shares.

Where none of the persons identified under Section 39(1) survives, the estate devolves upon the State and is paid into the Consolidated Fund pursuant to Section 39(2).

The statutory hierarchy has continued to be recognised and applied by the courts in succession proceedings. See, for example, In re Estate of Nyanduga Land (Deceased) (Succession Cause 514 of 2011) [2025] KEHC 2710 (KLR) and In re Estate of Joseph Opondo alias Joseph Aguyo (Deceased) (Succession Cause 208 of 2012) [2023] KEHC 2781 (KLR).

However, the application of the first two categories has been fundamentally affected by constitutional jurisprudence.

The Constitutional Challenge to Section 39

Prior to the constitutional challenge, the wording of Section 39 created a clear hierarchy between the deceased's parents.

Where both parents were alive, the father took priority. The mother could inherit only where the father was deceased.

Thus, on a literal reading of the provision, the sequence was:

Father → Mother → Siblings → Half-siblings → Other relatives.

The constitutional validity of this distinction was challenged in Ripples International v Attorney General & another; FIDA (Interested Party) [2022] KEHC 13210 (KLR).

The petitioner argued that giving a father priority over a mother solely because of sex was discriminatory and inconsistent with the Constitution.

The High Court agreed.

What Did Ripples International Decide?

The High Court considered Sections 35(1)(b), 36(1)(b), 39(1)(a) and 39(1)(b) of the Law of Succession Act against the constitutional guarantees of equality and non-discrimination.

With respect to Section 39, the Court found that the provision discriminated between fathers and mothers by giving the father priority in inheriting the property of an intestate child who died unmarried and without children.

The Court held that the differential treatment was inconsistent with Article 27 of the Constitution, which guarantees equality and freedom from discrimination.

The Court consequently declared Sections 39(1)(a) and (b) unconstitutional.

Importantly, the Court did not declare the whole of Section 39 unconstitutional.

The decision specifically concerned the discriminatory preference given to fathers over mothers.

Equal Treatment of Fathers and Mothers

The practical consequence of Ripples International is that a surviving father cannot be accorded automatic priority over a surviving mother solely on account of his sex.

Both parents are entitled to equal constitutional protection.

The constitutional position is therefore materially different from the literal wording of the original Section 39.

Where a deceased person leaves no spouse or children but is survived by both parents, the law must be applied consistently with Article 27 of the Constitution and the declaration made in Ripples International.

This represents an important development in Kenyan succession law because it removes a gender-based distinction that historically placed mothers in a subordinate position to fathers when inheriting from the estate of a deceased child.

Why Article 27 Matters in Succession Matters

Article 27(1) of the Constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law.

Article 27(4) further prohibits discrimination on various grounds, including sex and marital status.

The High Court's decision in Ripples International demonstrates that succession legislation cannot be applied independently of these constitutional protections.

The Law of Succession Act predates the Constitution of Kenya, 2010. Where provisions of the Act conflict with constitutional rights, they must be interpreted and applied consistently with the Constitution.

The decision therefore illustrates the broader constitutional transformation of succession law in Kenya.

What Happens After the Parents?

Once the parental category has been addressed, Section 39 proceeds to brothers and sisters and the children of deceased brothers and sisters.

The provision places full siblings ahead of half-siblings.

Where there are surviving brothers and sisters, and children of deceased brothers and sisters, the law provides for distribution in equal shares.

For example, if the deceased leaves two surviving siblings and the children of a third sibling who predeceased the deceased, the estate does not simply pass to the two surviving siblings to the exclusion of the deceased sibling's children. The statutory provision expressly recognises the children of deceased brothers and sisters.

The precise distribution, however, may require consideration of the applicable rules concerning representation and the circumstances of the deceased siblings.

Half-Siblings and Their Children

Where there are no beneficiaries within the preceding category, Section 39(1)(d) provides for inheritance by half-brothers and half-sisters and the children of deceased half-brothers and half-sisters.

They inherit in equal shares subject to the statutory framework.

The distinction between full and half-siblings can therefore become important where a deceased person leaves a relatively complex family structure.

Relatives Within the Sixth Degree of Consanguinity

Where there are no surviving parents, siblings, half-siblings or qualifying children of deceased siblings, Section 39 extends succession to relatives in the nearest degree of consanguinity, up to and including the sixth degree.

This makes the determination of degrees of consanguinity particularly important in estates where the deceased left no immediate family.

The Probate and Administration Rules require succession applications in cases of total or partial intestacy to provide particulars of persons who would succeed under Section 39. The Rules also require reference to the applicable table for determining the degree of consanguinity.

This requirement is designed to ensure that the Court has sufficient information to identify persons who may be entitled to participate in the administration and distribution of the estate.

What If There Are No Surviving Relatives?

Section 39(2) provides a final destination for an estate where no qualifying relatives survive.

In such circumstances, the net intestate estate devolves upon the State and is paid into the Consolidated Fund.

The statutory scheme therefore establishes a complete hierarchy, moving from the closest qualifying relatives to more remote relatives and, ultimately, the State.

Beneficial Entitlement and the Right to Administer the Estate

It is important to distinguish between the right to inherit and the right to administer an estate.

Section 66 of the Law of Succession Act gives the Court final discretion in determining to whom a grant of letters of administration should be made, although it provides a general order of preference.

Persons entitled to the estate under Part V of the Act will ordinarily have priority over more remote persons.

In In re Estate of Mark Waswa Namwoso (Deceased) (Succession Cause 2 of 2020) [2025] KEHC 16083 (KLR), the High Court considered Section 39 alongside Section 66 and recognised the importance of the statutory order of preference in determining who should administer an intestate estate.

Consequently, a person who wishes to administer an estate should not assume that being a relative, by itself, is sufficient. The nature and degree of the relationship remain important.

Dependency May Also Be Relevant

Succession under Section 39 should also be considered alongside the provisions of the Law of Succession Act relating to dependants.

In appropriate circumstances, a person who does not fall neatly within the categories of Section 39 may seek relief based on dependency where the statutory requirements are satisfied.

However, dependency is a question of fact and must be established by evidence.

The courts have repeatedly emphasised that a person asserting dependency bears the evidential burden of demonstrating the basis of the claim.

This was recently reiterated in In re Estate of Joconia Opiyo alias Oyombi (Deceased) (Family Appeal E003 of 2024) [2025] KEHC 13264 (KLR).

Accordingly, the analysis of an intestate estate should not stop at identifying blood relatives. The particular circumstances of persons claiming an interest in the estate must also be examined.

The Significance of Ripples International for Women

The importance of Ripples International extends beyond the immediate wording of Section 39.

The decision forms part of the broader constitutional movement towards eliminating discriminatory provisions in succession law.

The Court also declared unconstitutional the provisions in Sections 35(1)(b) and 36(1)(b) concerning the termination of a widow's life interest upon remarriage, finding that the provisions treated widows differently from widowers.

Although those provisions concern different circumstances from Section 39, the underlying constitutional principle is the same: succession rights must comply with the constitutional guarantee of equality.

The decision therefore represents an important affirmation that customary or statutory assumptions concerning gender cannot override constitutional rights.

Practical Implications for Families

Where a person dies intestate without a spouse or children, the family should carefully establish the deceased's family tree before applying for a grant.

The following questions should ordinarily be addressed:

• Did the deceased leave a surviving spouse?
• Did the deceased leave biological or legally recognised children?
• Are either or both parents alive?
• Did the deceased leave full siblings?
• Are there children of any deceased siblings?
• Are there half-siblings or children of deceased half-siblings?
• Are there other relatives within the sixth degree of consanguinity?
• Are there persons who can establish dependency?
• Are there existing succession proceedings concerning the estate?
• Has any person already obtained a grant without disclosing all persons with an interest in the estate?

Proper identification of beneficiaries is critical.

Failure to disclose persons who are entitled to benefit from an estate may expose a grant to challenge and possible revocation under Section 76 of the Law of Succession Act.

The Importance of Full Disclosure

Succession proceedings are proceedings in which the Court expects candour from those seeking grants of representation.

An applicant should not deliberately omit persons who rank equally or higher in the statutory order of succession.

The importance of disclosure is reinforced by the Probate and Administration Rules, which require an applicant to provide particulars of persons who would succeed under Section 39 where the deceased left no spouse or children.

The objective is to enable the Court to make an informed decision regarding administration and eventual distribution of the estate.

Conclusion

Where a person dies intestate without a surviving spouse or children, Section 39 of the Law of Succession Act provides the starting point for determining who is entitled to the deceased's net intestate estate.

The statutory order proceeds through the deceased's parents, siblings and their children, half-siblings and their children, and other relatives within the sixth degree of consanguinity before ultimately providing for the estate to devolve upon the State where no qualifying relative survives.

However, the original wording of Section 39 cannot now be applied mechanically.

The decision in Ripples International v Attorney General & another; FIDA (Interested Party) [2022] KEHC 13210 (KLR) fundamentally altered the application of Sections 39(1)(a) and (b) by declaring unconstitutional the statutory preference given to fathers over mothers.

The broader principle is clear: succession rights must be interpreted and applied consistently with the Constitution, particularly the right to equality and freedom from discrimination.

For families dealing with intestate estates, the practical lesson is equally important. Establishing the correct beneficiaries requires more than simply identifying the closest male relative. The deceased's entire family structure, potential dependants and the constitutional rights of all beneficiaries must be considered.

In succession matters, therefore, the family tree remains important—but it must be read through the lens of the Constitution.

Key Authorities

• Ripples International v Attorney General & another; FIDA (Interested Party) (Constitutional Petition E017 of 2021) [2022] KEHC 13210 (KLR).
• In re Estate of Nyanduga Land (Deceased) (Succession Cause 514 of 2011) [2025] KEHC 2710 (KLR).
• In re Estate of Joseph Opondo alias Joseph Aguyo (Deceased) (Succession Cause 208 of 2012) [2023] KEHC 2781 (KLR).
• In re Estate of Mark Waswa Namwoso (Deceased) (Succession Cause 2 of 2020) [2025] KEHC 16083 (KLR).
• In re Estate of Joconia Opiyo alias Oyombi (Deceased) (Family Appeal E003 of 2024) [2025] KEHC 13264 (KLR).

Disclaimer: This article is intended for general information only and does not constitute legal advice. Succession rights are dependent on the facts of each estate, and persons dealing with an intestate estate should obtain appropriate legal advice before taking steps to administer or distribute the estate.

 

When Trust Is the Job Description: What Kenyan Employment Decisions Mean for Employees and Employers

Article By Z.O.G

When trust is the job description, accountability is part of the legal standard.

Employees entrusted with an employer's financial resources, sensitive information, supervisory authority or operational controls occupy a particularly important position within an organisation. Their responsibilities often extend beyond the ordinary performance of contractual duties. They are expected to exercise judgment, diligence and fidelity commensurate with the trust placed in them.

But there is an equally important legal principle on the other side of the employment relationship: the seriousness of an allegation does not dispense with the employer's obligation to conduct a fair disciplinary process.

Recent Kenyan employment jurisprudence illustrates this balance. The courts have recognised the legitimate expectations placed upon employees occupying positions of responsibility while simultaneously insisting that employers establish the factual basis for alleged misconduct and provide employees with a genuine opportunity to respond.

Three themes emerge with particular clarity.

1. Employees in Positions of Financial or Supervisory Trust Are Held to a Higher Standard

An employee's responsibilities matter when assessing alleged misconduct.

Where an employee is entrusted with financial resources, transaction approvals, supervision of other employees, institutional assets or sensitive operational functions, the consequences of a failure to exercise appropriate care may be significantly more serious than an equivalent lapse by an employee with limited responsibility.

This is particularly apparent in banking and other financial institutions, where employees operate within systems of authorisation, verification, segregation of duties, audit controls and compliance requirements.

The law does not, however, impose an abstract or unlimited duty of perfection. The relevant question is whether the employee failed to discharge duties that actually formed part of their role and whether the alleged failure was sufficiently serious to constitute a valid ground for disciplinary action.

The role of the employee matters

In assessing alleged negligence or misconduct, employers should therefore identify precisely:

• what responsibilities were assigned to the employee;
• what level of authority the employee possessed;
• what financial or supervisory responsibilities accompanied that authority;
• what policies or controls governed the employee's functions;
• whether the employee was aware of those requirements; and
• how the alleged conduct departed from the standard reasonably expected of someone in that position.

The distinction is important.

An employee who merely processes information may not bear the same responsibility as an employee authorised to approve a transaction. Similarly, a supervisor may have obligations to detect, prevent or report irregularities that would not ordinarily fall upon a junior employee.

Accordingly, the employee's position is relevant to determining the standard against which the conduct should be assessed.

2. Negligence Does Not Automatically Equal Gross Misconduct

Employers should also be careful not to equate every failure to follow procedure with gross misconduct.

A disciplinary allegation must be supported by evidence and assessed in context.

Section 44 of the Employment Act, 2007 recognises circumstances in which an employee's conduct may justify summary dismissal, including certain forms of wilful neglect or careless and improper performance of duties.

But whether conduct crosses that threshold is a question of fact.

For an employee occupying a position of financial trust, the Court may reasonably take into account the seriousness of the responsibility entrusted to that employee. A negligent failure affecting a critical financial control may be substantially more serious than an isolated administrative error.

The employer should nevertheless establish the connection between:

the employee's responsibility → the applicable safeguard → the alleged breach → and the resulting risk or consequence.

A disciplinary case becomes considerably stronger when that chain is supported by contemporaneous documentation.

3. Employers Must Establish the Reason for Termination

The fact that an employer genuinely suspects misconduct is not, by itself, sufficient.

Section 43 of the Employment Act places the burden upon the employer to prove the reason or reasons for termination.

The Court of Appeal in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR emphasised the distinction between the employer's right to terminate employment and the statutory requirement that termination be substantively and procedurally fair. The subsequent Supreme Court proceedings in Kenfreight (E.A.) Limited v Benson K. Nguti [2019] eKLR further demonstrate the importance of the statutory framework governing termination. Kenya Law+1

The practical lesson is significant.

An employer should not proceed from the allegation:

"The employee was responsible, therefore the employee must be at fault."

Instead, the employer should be able to demonstrate, through evidence, why the employee's conduct constituted a breach of the applicable standard.

This is especially important in cases involving negligence, because negligence often turns upon what the employee knew, what the employee was required to do, what the employee actually did and whether the omission or conduct was reasonably attributable to the employee.

4. Meaningful Disclosure Is Part of a Fair Disciplinary Process

Perhaps one of the most important lessons from Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR concerns disclosure.

The case arose from allegations surrounding the PostaPay product and financial losses suffered by the Postal Corporation. A forensic audit had identified issues relating to the product and the conduct of senior management.

The Court of Appeal considered the requirements of procedural fairness under Section 41 of the Employment Act.

The significance of the decision extends beyond its particular facts.

An employee cannot reasonably be expected to answer allegations where the material facts underlying those allegations are withheld from them.

This is particularly important where an employer relies upon:

• an audit report;
• an investigation report;
• transaction records;
• emails or correspondence;
• customer complaints;
• system-generated records;
• witness statements;
• financial reconciliations; or
• other documentary evidence.

If the employer intends to rely materially upon such evidence in reaching a disciplinary decision, fairness requires the employee to be given sufficient information about the case they are required to answer.

The Court of Appeal's approach is therefore better understood as requiring meaningful disclosure rather than a merely formal invitation to attend a disciplinary hearing. Kenya Law+1

5. A Disciplinary Hearing Must Be Meaningful, Not Merely Formal

There is a crucial distinction between giving an employee a hearing and giving an employee a meaningful opportunity to be heard.

An employer may technically invite an employee to a disciplinary meeting, but if the employee has not been given adequate information about the allegations or material relied upon, the opportunity to respond may be illusory.

This is consistent with the Court of Appeal's treatment of Section 41 in Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR.

The disciplinary process is not required to replicate a court trial. Nevertheless, procedural fairness requires that an employee understand the allegations and be afforded a reasonable opportunity to respond to them.

The principle was subsequently reiterated in Kenyan employment jurisprudence. The courts have continued to treat disclosure of the case to be answered and a genuine opportunity to respond as central elements of procedural fairness. Cliffe Dekker Hofmeyr+1

6. Internal Investigations Should Precede Disciplinary Action

The importance of investigation is equally significant.

An employer should ordinarily establish the factual basis of an allegation before deciding that an employee is culpable.

In Ruth Mungai v Kache Limited [2018] KEELRC 419 (KLR), the Court emphasised that it is not sufficient merely to make allegations of misconduct. The employer should have internal systems and processes for investigating and verifying the alleged misconduct before arriving at the decision to terminate. Kenya Law

This principle has particular relevance to financial misconduct cases.

Where a transaction has gone wrong, for example, the employer should establish:

• who initiated the transaction;
• who reviewed it;
• who authorised it;
• what controls applied;
• whether those controls were followed;
• whether the employee had authority to act;
• whether another employee was involved;
• whether the employee raised any concerns;
• whether the system itself contributed to the error; and
• whether there is evidence of negligence, recklessness or deliberate misconduct.

The purpose of an investigation is not simply to build a case for dismissal. It is to establish what actually happened.

7. Documentation Is the Employer's Best Defence

A recurring practical lesson from these decisions is the importance of documentation.

In a subsequent claim before the Employment and Labour Relations Court, the employer will ordinarily need to demonstrate both the substantive basis for the decision and the fairness of the procedure followed.

That makes the disciplinary record critically important.

For an employer, the record should ideally demonstrate a clear chronology:

complaint/allegation → investigation → evidence gathered → employee notified → disclosure → employee's response → consideration of response → disciplinary decision → reasons for decision.

The absence of this documentary trail can create significant difficulty.

For example, if an employer asserts that an employee ignored a particular financial control, the employer should ideally be able to produce the policy or procedure establishing the control, evidence that the employee was aware of it, evidence of the relevant transaction and evidence connecting the employee to the alleged breach.

A general statement that an employee "failed in their responsibilities" may be considerably weaker than a properly documented evidentiary record.

8. The Employer's Belief Must Have an Evidentiary Foundation

The decision in Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others [2019] eKLR is also important when considering the employer's state of mind in termination decisions.

The courts recognise that an employer does not necessarily have to prove misconduct to the criminal standard. Employment disputes operate within the statutory framework governing fairness and the applicable civil standard.

However, the employer's belief that misconduct occurred must have a proper factual foundation.

The employer should therefore be able to demonstrate the material that informed its decision.

This is particularly important where the allegation is based on suspicion.

Suspicion may trigger an investigation. It should not ordinarily substitute for one.

9. Positions of Trust Do Not Create Automatic Liability

The phrase "position of trust" should therefore be used carefully.

It does not mean that an employee holding a senior or sensitive position is automatically liable whenever something goes wrong.

Nor does it mean that the employer can dispense with procedural fairness.

Instead, the employee's position helps determine the standard of responsibility reasonably expected of them.

For example, where an employee has express responsibility for verifying a transaction before authorisation, evidence that the employee failed to conduct the required verification may be highly relevant.

But if the employee's role did not include the relevant verification, or if the employer's own systems permitted the transaction without the employee's intervention, the analysis becomes different.

The employer must therefore establish responsibility rather than simply infer it from seniority.

10. What This Means for Employees

Employees occupying positions of financial or supervisory trust should recognise that their responsibilities may expose them to heightened scrutiny.

They should:

• understand the policies governing their functions;
• comply with approval and verification requirements;
• maintain records of decisions and instructions;
• raise concerns where procedures cannot reasonably be followed;
• avoid informal workarounds to established controls;
• report suspected irregularities promptly; and
• preserve relevant correspondence and documentation.

Where disciplinary proceedings are commenced, the employee should also insist upon clarity regarding the allegations and the material relied upon, particularly where the allegations are based upon an audit or investigation.

A meaningful defence requires knowledge of the case being answered.

11. What This Means for Employers

For employers, particularly banks and other regulated institutions, the lesson is equally clear.

A robust disciplinary process should be capable of surviving scrutiny after the event.

Employers should therefore consider adopting a process that ensures:

1. Clear expectations

Employees should have written job descriptions and clearly communicated policies.

2. Proper investigation

Allegations should be investigated before disciplinary conclusions are reached.

3. Meaningful disclosure

The employee should receive sufficient information and relevant material to understand and answer the allegations.

4. A genuine hearing

The employee's representations should actually be considered.

5. Evidence-based decision-making

The disciplinary decision should identify the evidence supporting the finding.

6. Proportionality

The sanction should be considered against the seriousness and circumstances of the misconduct.

7. A complete record

The employer should maintain a coherent documentary trail demonstrating both substantive justification and procedural fairness.

12. The Broader Legal Lesson

The Kenyan jurisprudence demonstrates that employment disputes involving positions of trust are not determined by choosing between two simplistic propositions:

"Employees in positions of trust must be accountable."

or

"Employees must always be protected from dismissal."

Both propositions are incomplete.

The law requires a balance.

An employee entrusted with substantial responsibility may properly be held to a high standard of performance, care and compliance. At the same time, the employer must establish the factual basis for disciplinary action and comply with the statutory requirements governing fair termination.

The stronger the allegation, the more important the quality of the investigation and documentation.

This is particularly true where an employer alleges negligence rather than deliberate misconduct. Negligence requires a careful examination of the employee's actual responsibilities, the applicable standard, the circumstances of the alleged failure and the evidence connecting the employee to it.

Conclusion

The recent Kenyan employment jurisprudence sends a clear message to both sides of the employment relationship.

For employees occupying positions of financial or supervisory trust, trust carries responsibility. The more sensitive the role, the greater the expectation that the employee will observe the controls and safeguards entrusted to them.

For employers, however, responsibility does not eliminate due process.

A disciplinary hearing must be more than a procedural formality. An employee must know the substance of the allegations and be afforded a genuine opportunity to answer them. Where an employer relies upon an audit, investigation or other material evidence, meaningful disclosure becomes particularly important.

And for both sides, documentation matters.

The best disciplinary process is one in which the record tells a coherent story:

What was the employee required to do? What allegedly went wrong? What evidence established that? Was the employee told the case against them? What was their response? Was that response considered? And why was the final decision reached?

Where those questions can be answered clearly and contemporaneously, the employer is in a substantially stronger position to demonstrate fairness. Where they cannot, even an allegation involving a position of significant trust may become difficult to sustain.

Key Applicable Kenyan Authorities

• Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR.
• Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR; Kenfreight (E.A.) Limited v Benson K. Nguti [2019] eKLR.
• Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others [2019] eKLR.
• Ruth Mungai v Kache Limited [2018] KEELRC 419 (KLR).
• Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR.
• Walter Ogal Anuro v Teachers Service Commission [2013] eKLR.

Disclaimer: This article is intended for general information only and does not constitute legal advice. The applicable law and outcome will depend on the facts and circumstances of each individual matter.

Struck Off Does Not Mean Written Off: A Creditor’s Right to Restore a Company in Kenya

By Z.O.G

The striking off of a company from the Register of Companies may appear, at first glance, to bring the company's affairs to an end. For creditors, however, the position is more nuanced.

A company being struck off does not necessarily mean that its creditors have lost their rights or that an outstanding debt has become irrecoverable. Kenyan company law provides a mechanism through which a dissolved company may, in appropriate circumstances, be restored to the Register, allowing creditors to pursue claims that might otherwise be frustrated by the company's dissolution.

The recent decision in Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2025] KEHC 3942 (KLR), together with Kathambo & Another (Suing as the Legal Representatives of Kihome Muthui (Deceased)) v Amarshan Limited & Another [2026] KEHC 4138 (KLR) and Agnator Kanini v Mwalimu Mamundi Autoparts Ltd & Another [2017] eKLR, demonstrates the willingness of the Kenyan courts to protect legitimate creditor interests where a company has been struck off.

What Happens When a Company Is Struck Off?

A company may be struck off the Register through various statutory mechanisms, including voluntary striking off.

Once a company is dissolved, it ceases to exist as a legal entity in the ordinary sense. This can create an immediate practical problem for a creditor. A creditor may have an unpaid debt, contractual claim or even an existing court judgment against the company, but the debtor company may no longer appear on the Register.

The creditor should not, however, assume that the debt has disappeared.

The Companies Act, 2015 provides a statutory route for restoring a dissolved company to the Register. The purpose of this mechanism is, among other things, to ensure that legitimate claims are not defeated merely because the company has been removed from the Register.

Creditors Can Apply for Restoration

Section 916 of the Companies Act, 2015 is particularly important to creditors.

The provision recognises a creditor of a company at the time it was struck off or dissolved as a person who may apply for restoration.

This is significant because it means that a creditor does not necessarily have to accept the company's dissolution as the end of its recovery efforts.

A creditor may approach the High Court seeking restoration where the statutory requirements are met.

The position was considered in Agnator Kanini v Mwalimu Mamundi Autoparts Ltd & Another [2017] eKLR.

In that case, the applicant had obtained a decree against the company. The company was subsequently struck off the Register, thereby creating an obstacle to execution.

The High Court ordered restoration of the company so that the decree-holder could pursue enforcement.

The case is particularly important because it demonstrates that restoration is not merely an administrative remedy. It can have a direct and practical purpose: to enable a creditor to enforce an otherwise valid claim or judgment.

Failure to Notify Creditors Can Have Serious Consequences

The statutory procedure for voluntary striking off contains safeguards designed to protect creditors.

Section 900 of the Companies Act, 2015 imposes notification requirements in relation to an application for voluntary striking off.

Where a company applies to be struck off without complying with those requirements, the omission may provide grounds for restoration.

This issue was considered in Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2025] KEHC 3942 (KLR).

The Kenya Revenue Authority sought restoration of the company after it had been struck off while owing tax liabilities.

The High Court considered the statutory notification requirements and found that the company had failed to comply with the obligation to notify the Kenya Revenue Authority of the striking-off application.

The Court consequently ordered restoration of the company to the Register.

The decision is an important reminder that the statutory process of striking off cannot properly be used to prejudice creditors who are entitled to notice under the Companies Act.

What If the Creditor Already Has a Judgment?

The position becomes particularly compelling where the creditor has already obtained judgment or a decree against the company.

A judgment creditor has already established its legal entitlement to recover the debt. If the judgment debtor is subsequently struck off, dissolution may create a procedural barrier to execution.

This was the situation in Agnator Kanini v Mwalimu Mamundi Autoparts Ltd & Another [2017] eKLR.

The Court recognised that restoration could be ordered to facilitate execution of the decree.

The same principle has more recently been considered in Kathambo & Another (Suing as the Legal Representatives of Kihome Muthui (Deceased)) v Amarshan Limited & Another [2026] KEHC 4138 (KLR).

The Court ordered restoration of the company notwithstanding arguments concerning the absence of demonstrated assets.

This is significant for creditors because a creditor may not always know, before restoration, what assets or recoverable interests a company possesses.

Requiring a creditor to identify and prove the existence of assets before restoration could create a circular problem: the creditor may need the company to be restored precisely so that its affairs and assets can be properly investigated.

The recent decision in Kathambo therefore reinforces the practical importance of restoration as a means of enabling creditors to pursue available remedies.

Restoration Is Not the Same as Piercing the Corporate Veil

It is important to distinguish restoration from imposing personal liability on directors or shareholders.

A company is a separate legal person from its members and directors. The mere fact that a company has been struck off does not automatically make its directors personally responsible for the company's debts.

Restoration is instead concerned primarily with reviving the company's legal status so that its assets, liabilities and legal affairs can properly be dealt with.

If there are independent grounds for pursuing directors personally—for example, under a personal guarantee, fraud or another recognised legal basis—that is a separate question requiring its own legal analysis.

The Court's "Just" Jurisdiction

The Companies Act, 2015 also gives the Court a broader discretionary jurisdiction to restore a company where it considers restoration to be just.

This is important because not every case will fit neatly into a single factual category.

The Court may consider the circumstances surrounding the striking off, the interests of creditors, the existence of pending claims, the effect of dissolution on legal proceedings and other relevant circumstances.

The principle was recognised in Re Queensway Investments Limited [1995] 1 EA 231, an authority subsequently considered in Agnator Kanini.

The underlying rationale is straightforward: the statutory process for removing companies from the Register should not become an instrument of injustice.

Where dissolution would unfairly deprive a creditor of a legitimate claim, restoration may provide the appropriate remedy.

Is Restoration Automatic?

No.

A creditor does not acquire an automatic right to restoration merely because a company owes it money.

The creditor must satisfy the statutory requirements and demonstrate grounds upon which the Court may properly exercise its jurisdiction.

The Court will consider the circumstances of each case, including the manner in which the company was struck off and the nature of the creditor's claim.

Accordingly, creditors should act promptly once they discover that a debtor company has been struck off.

What Should a Creditor Do?

Where a creditor discovers that a debtor company has been struck off, the following steps should ordinarily be considered:

1.      Obtain an official company search to establish the company's status and the date on which it was struck off.

2.      Establish how the company was struck off, including whether the process was voluntary.

3.      Establish whether the creditor received notice of the proposed striking off.

4.      Review the underlying debt or claim, including any contract, invoices, correspondence and acknowledgements of indebtedness.

5.      Establish whether judgment has already been obtained and, if so, obtain the relevant judgment and decree.

6.      Investigate whether the company has assets or other recoverable interests, including property, debts owed to it, contractual rights or pending litigation.

7.      Consider an application for restoration under the Companies Act, 2015 where the statutory grounds are satisfied.

8.      Act within the applicable statutory and limitation periods.

Practical Implications for Creditors

The decisions discussed above provide an important practical lesson.

A creditor who discovers that a debtor company has been struck off should not immediately write off the debt.

Instead, the creditor should determine whether restoration is available.

This is particularly important where:

• the creditor was not notified of the proposed striking off;
• the debt existed before dissolution;
• the creditor has already obtained a judgment or decree;
• the company may have assets or recoverable contractual rights;
• the striking-off procedure may not have complied with the Companies Act; or
• restoration would otherwise be necessary to prevent injustice.

The courts' approach in KRA v Dream Dressing, Kathambo and Agnator Kanini demonstrates that restoration can be a meaningful remedy rather than a purely technical exercise.

Conclusion

Being struck off the Register is not necessarily the end of the road for a company's creditors.

The Companies Act, 2015 recognises circumstances in which a dissolved company may be restored, and the Kenyan courts have demonstrated a willingness to exercise that jurisdiction where restoration is necessary to protect legitimate creditor interests.

The decisions in Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2025] KEHC 3942 (KLR), Kathambo & Another (Suing as the Legal Representatives of Kihome Muthui (Deceased)) v Amarshan Limited & Another [2026] KEHC 4138 (KLR) and Agnator Kanini v Mwalimu Mamundi Autoparts Ltd & Another [2017] eKLR are particularly instructive.

The central lesson for creditors is therefore simple:

A company may be struck off, but that does not necessarily mean that a legitimate debt is written off.

Where the statutory requirements are satisfied, restoration may provide the creditor with a route back to the debtor company and an opportunity to pursue the remedies available under Kenyan law.

Key Authorities

• Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2025] KEHC 3942 (KLR).
• Kathambo & Another (Suing as the Legal Representatives of Kihome Muthui (Deceased)) v Amarshan Limited & Another [2026] KEHC 4138 (KLR).
• Agnator Kanini v Mwalimu Mamundi Autoparts Ltd & Another [2017] eKLR.
• Re Queensway Investments Limited [1995] 1 EA 231.

Disclaimer: This article is intended for general information only and does not constitute legal advice. The circumstances of each case should be considered independently and professional legal advice obtained before taking action.

Effect of the Death of a Sole Proprietor on Employees’ Contracts

The death of a sole proprietor does not, in itself, automatically terminate the employment contracts of employees engaged in the business.

This position was directly considered in Lucy Nyandia Mwangi v Mathenge and Muchemi Advocates [2013] eKLR, where the Employment and Labour Relations Court rejected the proposition that an employee's contract automatically lapses upon the death of the employer. The Court held that where the death of the employer results in the cessation of the business, the resultant loss of employment falls within the framework of redundancy.

The Court observed that where a business owner dies and the business consequently ceases to operate, the employee may lose employment through no fault of their own. Such termination therefore constitutes redundancy and must be dealt with in accordance with the applicable provisions of the Employment Act.

The same approach is consistent with the general principle that an employer cannot terminate an employment relationship without a lawful and valid basis and without following the prescribed procedure. In Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, the Court of Appeal affirmed that termination of employment must comply with both the substantive and procedural requirements prescribed by the Employment Act.

Similarly, in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR, the Court of Appeal emphasised that termination of employment must be founded upon a valid and fair reason and must be undertaken in accordance with a fair procedure.

Where the death of the sole proprietor results in the closure of the business or renders the employees' positions superfluous, the appropriate legal mechanism is therefore redundancy under Section 40 of the Employment Act, 2007. The personal representatives of the deceased employer, or any successor responsible for the business, should ensure compliance with the statutory requirements relating to redundancy.

In Thomas De La Rue (K) Ltd v David Opondo Omutelema [2013] eKLR, the Court of Appeal confirmed that the requirements under Section 40 of the Employment Act are mandatory where termination is undertaken on account of redundancy. Consequently, the employer must comply with the applicable notice requirements, selection criteria, payment of accrued leave, notice pay and severance pay.

Further, in Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others [2014] eKLR, the Court of Appeal considered the nature and requirements of redundancy and affirmed the importance of compliance with the statutory procedure prescribed under Section 40 of the Employment Act.

Accordingly, the death of a sole proprietor should not be treated as an automatic termination of the employees' contracts. Where the proprietor's death results in the discontinuation of the business and consequently makes the employees' positions redundant, the employment relationship should be brought to an end through the lawful redundancy process.

The appropriate legal position may therefore be stated as follows:

The death of a sole proprietor does not, by itself, automatically terminate the contracts of employment of the proprietor's employees. Where the death results in the closure or cessation of the business and the employees' positions thereby become superfluous, the resulting termination constitutes redundancy and must be undertaken in accordance with Section 40 of the Employment Act, 2007.

Case Laws/Authorities:

1. Lucy Nyandia Mwangi v Mathenge and Muchemi Advocates [2013] eKLR.
2. Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR.
3. Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR.
4. Thomas De La Rue (K) Ltd v David Opondo Omutelema [2013] eKLR.
5. Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others [2014] eKLR.

 Disclaimer: This article is intended for general information only and does not constitute legal advice. The circumstances of each case should be considered independently and professional legal advice obtained before taking action.