Succession Law in Kenya – Overview & Procedure (TESTATE AND INTESTATE)

A Detailed Exposition on Succession Law in Kenya

I. Applicable Legal Framework

Succession in Kenya is governed primarily by:

1.        The Law of Succession Act (Cap 160, Laws of Kenya)

o    This is the principal legislation that regulates the administration of deceased persons' estates, whether testate (with a will) or intestate (without a will).

2.        The Probate and Administration Rules (Cap 160 Sub Leg)

o    These are subsidiary laws that provide the procedural framework for implementing the Law of Succession Act. They outline the forms, timelines, and procedures for applying for grants and managing estates.

 

II. Categories of Probate

Succession is broadly classified into:

1. Non-Contentious Probate (Probate in Common Form)

• Involves straightforward succession matters where there is no dispute.
• Typically applies when a valid will is available, and beneficiaries are in agreement.
• Often results in a faster process as there is no litigation.

2. Contentious Probate (Probate in Solemn Form)

• Involves disputes, such as contesting the validity of a will or exclusion from inheritance.
• Requires formal court proceedings and is determined after hearing evidence from all parties.
• Common where there are multiple spouses, unrecognized children, or unclear property claims.

 

III. Types of Succession

1. Testate Succession

• Occurs when the deceased leaves a valid will.
• The will must meet legal requirements under Sections 5–11 of the Law of Succession Act (e.g., made by a person of sound mind, witnessed by at least two witnesses).
• The named executors in the will apply for grant of probate to administer the estate.

2. Intestate Succession

• Occurs when:
• The deceased did not leave a will.
• The will is declared invalid.
• Distribution of the estate is done according to the rules in Part V of the Act, which outlines how different categories of relatives inherit (e.g., spouse, children, parents, siblings).

 

IV. Constitutional Safeguards

The Constitution of Kenya, 2010, provides key protections in succession matters:

• Article 27 – Ensures equality before the law and prohibits discrimination on grounds such as gender, marital status, or age. This supports equitable inheritance for both male and female beneficiaries.
• Article 40 – Protects the right to acquire and own property, which extends to inheritance rights.

Note: These provisions ensure that widows, daughters, and persons from marginalized communities are not unfairly excluded from inheriting.

 

V. Procedure for Applying for Grant of Representation

A. Who Can Apply?

Under Section 66 of the Law of Succession Act, priority is given to:

1.        Surviving spouse(s) (with or without other beneficiaries).

2.        Other beneficiaries in order of interest (e.g., children, parents).

3.        The Public Trustee.

4.        Creditors.

In partial intestacy (where only part of the estate is not covered by a will), an executor who proves the will may still be granted letters of administration.

 

B. Disqualification from Applying (Section 56)

The following persons cannot apply for grant:

• Minors
• Persons of unsound mind
• Bankrupt individuals

Also, no more than four qualified persons can apply jointly.

 

C. Application Requirements (Section 51 & Rules 7–14)

The application must include:

• Full names, date/place of death, and last known residence of the deceased
• Relationship of applicant to the deceased
• Whether a will exists (written/oral) and executor details
• Names/addresses of all beneficiaries, including:
• Surviving spouses
• Children (including of deceased children)
• Parents, siblings
• Full inventory of assets and liabilities
• If a will exists:
• Original or authenticated copy if lost
• If oral, names of witnesses must be provided

 

VI. Required Forms and Supporting Documents

To be filed at the High Court Registry:

Document	Description
P&A 80	Petition (Summons format)
P&A 5	Affidavit in support
P&A 12	Statement of Means
P&A 11	Affidavit of Justification for sureties
P&A 57	Personal Surety Guarantees
P&A 38	Consent form (from other adult beneficiaries)
Death Certificate	Mandatory proof of death
Chief’s Letter	Confirms identity of beneficiaries
Title documents	Proof of ownership of assets
Original Will	For testate succession only

 

VII. Gazette Notice and Objections

• The application is published in the Kenya Gazette as a Succession Cause.
• A 30-day period is provided for the public to lodge any objections.
• If an objection is filed, a hearing is conducted and the matter may become contentious.

If no objections arise, the applicant is issued a Grant of Letters of Administration (for intestate estates) or a Grant of Probate (for testate estates).

🛑 Important: The grant does not authorize distribution. The holder must only collect, preserve, and manage the estate until confirmation.

 

VIII. Confirmation of Grant

When?

• After 6 months from the date of the grant.

How?

• Application made under Section 71(3) and Rule 40
• Court is moved via Summons accompanied by:
• Affidavit in Support
• Schedule of Assets & Proposed Distribution (names of beneficiaries and their share)

The court will assess:

• Whether all beneficiaries have been accounted for
• Whether the proposed distribution is fair
• Whether any disputes remain unresolved

 

IX. Final Distribution and Closure

Once the grant is confirmed:

• The administrator can distribute the estate as per the court-approved schedule.
• After all duties are completed, the administrator can apply to close the estate and be discharged from further responsibility.

 

Conclusion

Succession law in Kenya is structured to:

• Ensure orderly transfer of assets
• Protect family members and dependants
• Safeguard constitutional rights, especially of vulnerable groups

The process requires diligence in gathering documentation, following legal procedure, and engaging with all beneficiaries to avoid conflicts.

 

Step-by-Step Process for Registering Sectional Properties

Step 1: Preparation and Documentation

1. Draft a Sectional Plan: Engage a registered surveyor to prepare a sectional plan of the property, which includes detailed diagrams showing the boundaries of individual sections and common areas.

   
   

2. Create a Declaration of Condominium: Prepare a declaration that outlines the ownership structure, rights, and responsibilities of individual owners, and the management of common areas.

   
   

3. Develop Bylaws: Draft bylaws that govern the operation and management of the sectional property, including rules for maintenance, usage of common areas, and dispute resolution procedures.

Step 2: Obtain Necessary Approvals

1. Consult with Local Authorities: Ensure that the sectional plan and bylaws comply with local zoning and building regulations. Obtain any necessary approvals or permits from municipal or county authorities.

   
   

2. Secure Consent from Property Owners: If the property is already occupied, obtain written consent from existing owners to proceed with the registration.

Step 3: Submit Application for Registration

1. Prepare Registration Documents: Compile the following documents for submission to the Registrar of Titles:

   
   

   • The sectional plan, certified by a registered surveyor.

     
     

   • The by laws for the management of the property.

     
     

   • Proof of ownership or a title deed for the property.

     
     

   • Consent from existing property owners (if applicable).

     
     

2. File Application with the Registrar: Submit the completed application and supporting documents to the Registrar of Titles at the relevant land registry office. Pay the required registration fees.

   
   

Step 4: Registrar’s Review and Approval

1. Review Process: The Registrar will review the submitted documents to ensure they comply with the Sectional Properties Act and other relevant regulations.

   
   

2. Approval and Registration: Upon approval, the Registrar will register the sectional property and issue a certificate of registration, which includes details of individual ownership sections and common areas.

   
   

Step 5: Establish Management Committee or HOA

1. Form a Management Committee: Establish a management committee or HOA to oversee the administration and maintenance of common areas. This committee is typically elected by property owners and is responsible for enforcing bylaws and managing communal services.

   
   

2. Register the Management Committee: Register the management committee with the relevant authorities if required, and ensure it operates in accordance with the by laws.

   
   

Step 6: Issuance of Title Deeds

1. New title deeds are issued for each sectional unit. The original register is closed, and new registers are opened for each unit.

   
   

2. Owners will not incur additional stamp duty if they paid the requisite fees during the registration of long-term leases.