1. Introduction
Family and Succession Law occupies a central position within
Kenya’s legal system. It governs personal and property relations within the
family unit — encompassing marriage, divorce, maintenance, custody of children,
and the devolution of property upon death. The area is anchored in Kenya’s Constitution
of 2010, which emphasizes equality, human dignity, and protection of the
family as the fundamental unit of society (Article 45).
The legal regime is not only statutory but also
constitutional and, in some instances, customary and religious. Historically,
Kenya operated under plural systems of family law derived from English
common law, African customary law, Islamic law, and Hindu
personal law. The Marriage Act, 2014, the Matrimonial Property
Act, 2013, and the Law of Succession Act (Cap 160) were enacted to
harmonize these systems and promote legal uniformity.
2. The Law of Succession Act (Cap 160): The Cornerstone
of Succession Jurisprudence
The Law of Succession Act, enacted in 1981, remains
the principal legislation governing the devolution of property after death in
Kenya. It applies universally to all persons domiciled in Kenya at the time of
death, except where the deceased professed the Islamic faith, in which case Sharia
law applies (s. 2(3)).
2.1 Testate Succession
Under sections 5–11, any person of sound mind may make a will
to determine how their estate shall devolve upon death. A valid will must be
made voluntarily and duly executed in accordance with section 11. The process
of implementing a will involves obtaining a Grant of Probate, which
confirms the executor’s authority to administer the estate.
The courts have consistently emphasized testamentary freedom
while upholding statutory protections for dependants. In In re Estate of
Solomon Ngatia Kariuki (Deceased) [2013] eKLR, the High Court reaffirmed
that a will cannot completely disinherit a dependant who was maintained by the
deceased; such a person may apply for reasonable provision under section 26 of
the Act.
2.2 Intestate Succession
Intestate succession arises where a person dies without a
valid will. The applicable rules are set out under Part V (sections 32–42).
The Act classifies beneficiaries hierarchically — beginning with the surviving
spouse and children, followed by parents, siblings, and other relatives.
For instance, under section 35, where a deceased leaves a
surviving spouse and children, the spouse acquires a life interest in
the estate, which determines upon remarriage or death, whereupon the property
passes absolutely to the children. The principle of equitable distribution was
affirmed in Rono v Rono & Another [2005] eKLR, where the Court of
Appeal held that while equality is desirable, equity — based on the needs and
circumstances of each beneficiary — should guide the court.
3. Marriage and Matrimonial Property: Equality and
Autonomy under the 2010 Constitution
The Marriage Act, 2014 unified diverse marriage
systems into a single statutory framework. Section 6 recognizes five types of
marriage: Christian, civil, customary, Hindu, and Islamic. The Act underscores
that marriage is a voluntary union between a man and a woman, entered
into with free consent (s. 3(1)).
3.1 Dissolution of Marriage
The Act provides distinct procedures for dissolution
depending on the form of marriage. For example, Christian and civil marriages
may be dissolved on grounds of adultery, cruelty, desertion, or irretrievable
breakdown (ss. 65–70). The courts exercise discretion to ensure fairness,
especially where children and property are involved.
3.2 Matrimonial Property and Gender Equality
The Matrimonial Property Act, 2013 complements the
Marriage Act by defining matrimonial property (s. 6) and establishing
principles of ownership (s. 7). It provides that property acquired during
marriage vests in both spouses according to their contribution, whether direct
(financial) or indirect (non-financial).
In Echaria v Echaria [2007] eKLR, the Court of Appeal
initially adopted a restrictive view, requiring proof of monetary contribution.
However, post-2010 jurisprudence — guided by Article 45(3) of the
Constitution — has broadened the concept of contribution to include domestic
work, childcare, and emotional support. This approach was reaffirmed in P.N.N
v Z.W.N [2017] eKLR, where the court recognized homemaking as a substantial
contribution warranting equal property rights.
The evolving interpretation reflects Kenya’s constitutional
commitment to substantive gender equality and the equal dignity of spouses
during and after marriage.
4. The Children Act, 2001 (Revised 2022): Upholding the
Best Interests of the Child
The Children Act operationalizes the rights of the
child under Article 53 of the Constitution, which guarantees every child
the right to parental care, education, and protection from abuse or neglect.
The 2022 revision strengthened provisions on adoption, guardianship, and child
welfare in line with international instruments such as the Convention on the
Rights of the Child (CRC) and the African Charter on the Rights and
Welfare of the Child (ACRWC).
4.1 Parental Responsibility and Custody
Sections 23 and 24 of the Act impose joint parental
responsibility on both parents, regardless of marital status. Custody decisions
are guided by the best interests of the child (s. 83). In J.O v S.A.O
[2016] eKLR, the court emphasized that the welfare of the child overrides
parental conflict, and custody should be awarded to the parent most capable of
meeting the child’s needs.
4.2 Maintenance and Guardianship
Parents and guardians are legally obligated to provide
maintenance under section 94. The Act also introduces clear procedures for guardianship
orders, ensuring continuity of care in the event of parental incapacity or
death.
5. Administration of Estates: Probate, Letters of
Administration, and Judicial Supervision
The probate and administration process ensures that a
deceased person’s property is lawfully distributed to rightful beneficiaries.
5.1 Probate and Letters of Administration
Where there is a valid will, executors apply for a Grant
of Probate; where there is no will, administrators seek Letters of
Administration Intestate under section 54. The court, upon verifying the
petition, issues the grant, which must later be confirmed (s. 71) before
distribution.
In In re Estate of L.N.W (Deceased) [2016] eKLR, the
High Court underscored the importance of transparency and procedural fairness
in the confirmation process, holding that all beneficiaries must be notified
and heard.
5.2 Role of the Family Division of the High Court
The Family Division of the High Court, established
under Article 165(3) of the Constitution and the Judicature Act, has
jurisdiction to handle succession disputes, adoption applications, and
matrimonial property cases. It also supervises subordinate courts in matters of
limited monetary or geographical jurisdiction.
6. Dependant’s Relief and Equitable Distribution
A hallmark of Kenya’s succession regime is the protection of
dependants. Under section 26 of the Law of Succession Act, any person
maintained by the deceased who has not been adequately provided for may apply
for reasonable provision from the estate.
In In re Estate of Solomon Ngatia Kariuki (Deceased)
[2013] eKLR, the court affirmed that dependency is a question of fact and that
the law intends to prevent hardship to those who relied on the deceased during
their lifetime. This principle aligns with the constitutional value of human
dignity (Article 28) and the duty to protect vulnerable family members.
7. Emerging Trends and Constitutional Dimensions
Kenya’s 2010 Constitution has profoundly reshaped the
interpretation of Family and Succession Law. Courts increasingly apply constitutional
values to ensure that family relations are governed by equality, fairness,
and social justice.
7.1 Equality and Non-Discrimination
Article 27 prohibits discrimination on grounds of gender,
marital status, or culture. Consequently, courts have struck down
discriminatory customary practices that disadvantage women and children. In Rono
v Rono (supra), the Court of Appeal held that daughters have equal
inheritance rights with sons, a principle now firmly entrenched in law.
7.2 Recognition of Non-Monetary Contribution
Recent jurisprudence acknowledges unpaid domestic labour as
a form of contribution to matrimonial property, consistent with global trends
in gender justice.
7.3 Intersection with Customary and Religious Law
Although statutory law prevails, customary law
continues to influence succession — particularly in rural areas and among
certain communities. The courts balance these customs with constitutional
standards, ensuring that traditional practices conform to the Bill of Rights
(Article 2(4)).
8. Conclusion
Family and Succession Law in Kenya represents a synthesis of
statutory precision, constitutional vision, and judicial
innovation. The combined effect of the Law of Succession Act, the Marriage
Act, the Matrimonial Property Act, and the Children Act is a coherent framework
that upholds both individual rights and family solidarity.
However, persistent challenges — such as delays in
succession proceedings, patriarchal resistance to gender equality, and limited
public awareness — continue to impede full realization of these rights. Future
reforms should focus on procedural efficiency, access to justice, and
integration of customary law within the constitutional order.
Ultimately, Kenya’s Family and Succession Law exemplifies
the legal system’s evolving attempt to balance personal autonomy with family
responsibility, ensuring that justice within the family remains both
accessible and equitable.
Select Bibliography
- Constitution
of Kenya, 2010.
- Law
of Succession Act (Cap 160, Laws of Kenya).
- Marriage
Act, No. 4 of 2014.
- Matrimonial
Property Act, No. 49 of 2013.
- Children
Act, No. 8 of 2001 (Revised 2022).
- Echaria
v Echaria [2007] eKLR.
- Rono
v Rono & Another [2005] eKLR.
- In
re Estate of Solomon Ngatia Kariuki (Deceased) [2013] eKLR.
- P.N.N
v Z.W.N [2017] eKLR.
- J.O
v S.A.O [2016] eKLR.
- In
re Estate of L.N.W (Deceased) [2016] eKLR.
Disclaimer: This article
is for informational purposes only and does not constitute legal advice.
