Commentary on Family and Succession Law in Kenya: Statutory Framework, Judicial Interpretation, and Emerging Trends

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.

Legal Analysis–The Case of Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR, Petition No. 156 of 2017

1. INTRODUCTION

1.1 This brief examines the judgment of the High Court of Kenya delivered on 20th February 2020 in Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR, Petition No. 156 of 2017, wherein the Court upheld the constitutionality of sections 57, 58(2), 59 and 99 of the Tax Procedures Act, No. 29 of 2015 (hereinafter “the TPA”).

1.2 The petitioner, Mr. Okiya Omtatah Okoiti, had sought a declaration that the said provisions were inconsistent with the Constitution of Kenya, 2010, for allegedly violating the right to privacy (Article 31) and the privilege against self-incrimination (Article 50(2)(l)).

2. ISSUES FOR DETERMINATION

2.1 Whether sections 57, 58(2), 59 and 99 of the Tax Procedures Act infringe upon:
a. The right to privacy under Article 31 of the Constitution; and
b. The privilege against self-incrimination under Article 50(2)(l) of the Constitution.

2.2 Whether the enforcement powers conferred upon the Kenya Revenue Authority (KRA) by the impugned provisions are reasonable and justifiable in an open and democratic society within the meaning of Article 24 of the Constitution.

3. STATUTORY FRAMEWORK

3.1 The Tax Procedures Act, 2015 was enacted to harmonize and consolidate procedural rules relating to the administration of tax laws in Kenya.

3.2 The impugned provisions grant the Commissioner of Domestic Taxes the following powers:

• Section 57: Power to access premises and inspect goods, records, and equipment for tax purposes.
• Section 58(2): Authority to require any person in custody of relevant documents to produce them for inspection.
• Section 59: Power to obtain, extract, or make copies of such documents or information.
• Section 99: Power to seize documents or items necessary for determining tax liability and to penalize non-compliance by a fine not exceeding KShs. 1,000,000, or imprisonment not exceeding three (3) years, or both.

3.3 Under section 6(1) of the TPA, KRA is obligated to maintain the confidentiality of taxpayer information, save for the exceptions enumerated under section 6(2).

4. PETITIONER’S ARGUMENTS

4.1 The Petitioner contended that the impugned provisions unjustifiably infringed the right to privacy and the privilege against self-incrimination.

4.2 It was further argued that KRA had previously exercised these powers in a politically motivated manner, citing the 2017 incident in which KRA allegedly requested Diamond Trust Bank to release the financial information of H.E. Ali Hassan Joho, Governor of Mombasa County.

5. RESPONDENTS’ ARGUMENTS

5.1 The Attorney General and the Kenya Revenue Authority submitted that the provisions were consistent with the Constitution and served a legitimate public purpose — namely, ensuring compliance with tax obligations.

5.2 They further argued that any limitation of rights occasioned by the provisions met the threshold of Article 24(1) of the Constitution as it was reasonable, necessary, and proportionate to the objective of safeguarding national revenue.

6. THE COURT’S ANALYSIS AND FINDINGS

6.1 The High Court dismissed the petition and upheld the constitutionality of sections 57, 58(2), 59, and 99 of the TPA.

6.2 On the right to privacy, the Court held that:

• The enforcement powers under the TPA are specific to tax administration and do not amount to an unjustifiable intrusion into an individual’s private affairs.
• The confidentiality obligation imposed by section 6 of the TPA adequately protects taxpayer information from misuse.

6.3 On the privilege against self-incrimination, the Court reasoned that:

• The right under Article 50(2)(l) does not exempt individuals from fulfilling lawful obligations, including the duty to provide information necessary for tax assessment.
• The privilege cannot be used as a shield to obstruct lawful investigations or conceal non-compliance with tax laws.

6.4 The Court therefore concluded that the use of compulsory powers to obtain information from taxpayers or third parties does not violate the right against self-incrimination.

7. RELATED JURISPRUDENCE

7.1 The Court distinguished this case from Robert K. Ayisi v Kenya Revenue Authority [2018] eKLR, Petition No. 421 of 2016, in which section 59(4) of the TPA was declared unconstitutional for violating advocate–client privilege as protected under section 137 of the Evidence Act (Cap 80, Laws of Kenya).

7.2 The Omtatah decision clarified that the invalidity of section 59(4) was limited to communications between advocates and clients, and did not affect the validity of the broader investigative and enforcement powers under the remaining provisions of the Act.

8. IMPLICATIONS OF THE DECISION

8.1 The judgment affirms that the Kenya Revenue Authority possesses broad statutory powers to obtain information from taxpayers and third parties for purposes of tax enforcement and compliance verification.

8.2 The ruling strengthens the legal foundation for KRA’s investigative mandate but also raises policy concerns regarding potential abuse of these powers for politically motivated or selective enforcement.

8.3 The Court did not conclusively address mechanisms for preventing such misuse, suggesting a need for continued legislative oversight and administrative safeguards to ensure that enforcement actions remain fair, transparent, and non-discriminatory.

9. CONCLUSION

9.1 The decision in Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR stands as a definitive pronouncement that sections 57, 58(2), 59, and 99 of the Tax Procedures Act, 2015 are constitutional.

9.2 The Court’s reasoning underscores the principle that while individual rights under the Constitution are fundamental, they are not absolute and must be balanced against the State’s legitimate interest in ensuring effective revenue collection.

9.3 Consequently, the Kenya Revenue Authority remains lawfully empowered to invoke its statutory powers under the TPA, subject to adherence to the principles of legality, proportionality, and confidentiality enshrined in the Constitution.

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

 

LEGAL Analysis: Limited Grants under the Law of Succession Act (Kenya)

1. Introduction

Under the Law of Succession Act (Cap 160) of the Laws of Kenya, only individuals who have been granted letters of administration or probate may lawfully deal with the estate of a deceased person. Any action taken without this authority, including for the benefit of dependants, constitutes intermeddling, which is prohibited.

However, the law recognizes that urgent circumstances may arise before full administration is granted. In such cases, parties may apply for limited grants to allow specific and urgent acts in respect of the estate.

2. Legal Basis

• Law of Succession Act – Cap 160
• Probate and Administration Rules – Rule 36(1)
• Schedule 5 – Types of limited grants
• Article 53(1)(b), Constitution of Kenya 2010 – Right to education for children

3. Types of Limited Grants

3.1. Grants Limited as to Purpose

a) Grant ad Colligenda Bona

Issued for collection and preservation of the estate. No authority to sell or distribute assets.

Case Law:

• Re Estate of Mary Syokwia Kyalili (eKLR) – Allowed where urgent action is needed and full grant would take time.
• Re Estate of Daniel A. Korir Kipkurui (eKLR) – Granted to access funds for school fees; upheld children’s constitutional right to education.
• Re Estate of Mary Wanja Wairimu (eKLR) – Rent collection preserved through joint account during pending grant process.

b) Grant ad Litem

Granted for the sole purpose of representing the estate in legal proceedings — either as plaintiff or defendant.

Case Law:

• Re Estate of Jennifer Kusuro Musiwa (eKLR) – Limited grant for pursuing a civil suit.
• Re Estate of Helena Wangechi Njoroge (eKLR) – Clarified that ad litem grants do not permit distribution of estate assets.

3.2. Grants Limited as to Property

a) Administration Pendente Lite

Issued when there is ongoing litigation concerning the estate. The appointed administrator acts under court supervision with no powers of distribution.

b) Grant de Bonis Non

Granted when the original executor/administrator dies or becomes incapacitated before completing administration. New administrator completes distribution.

Case Law:

• Faith Wanjiku Maganjo v Rebean Muriithi Maganjo (eKLR) – Defined role of "administrator de bonis non" in completing estate administration.

3.3. Grants Limited as to Time

Applicable where the validity or existence of a will is uncertain or delayed.

• Probate of copy or draft of lost will – Granted when original was lost without intention by testator.
• Probate of copy where original exists abroad – Allowed when original is withheld abroad but action is urgent.
• Administration until will is produced – Temporary administration pending retrieval or discovery of will.

4. Legal and Practical Importance in the Kenyan Context

• Urgency: Limited grants allow dependants, especially minor children, to access funds for school fees and upkeep without unnecessary delay.
• Protection of Estate: Prevents wastage or unauthorized dealings with estate assets (e.g., rent, perishables).
• Court Control: All limited grants are subject to court supervision and specific limitations.
• Prevention of Intermeddling: Ensures only legally authorized persons act on behalf of the estate.

5. Recommendations for Legal Practitioners and Clients

• Apply early for limited grants in urgent circumstances.
• Use Grant ad Litem when legal representation of the estate is needed in a civil suit.
• Secure storage of will with a trusted legal advisor.
• Provide executor and family contacts to ensure swift action upon death.

6. Conclusion

Limited grants serve as a critical legal mechanism under Kenyan succession law to balance the need for urgent intervention with the requirement for orderly administration of estates. Legal practitioners should advise clients on their availability and use, particularly in safeguarding the welfare of dependants and preserving estate assets.