THE SUCCESSION PROCESS IN KENYA - INTESTATE SUCCESSION

Inheritance by beneficiaries is based on the provisions of the Law of Succession. 

The law entitles the following persons to petition Court for Letters of Administration and/or become beneficiaries to the deceased estate in order of priority: 

– The Spouse + Children; 

- or If the deceased had no children: the deceased’s father; or if dead, the deceased’s mother; or if dead, the deceased’s siblings; or if dead, the deceased’s children of siblings; or if dead, the deceased’s half siblings; or if dead, any other blood relative.

- If the deceased had no relatives, the net estate is put into the Government of Kenya’s Consolidated Fund

Where the Deceased had a polygamous family, the Estate is inherited among the families according to the number of children in each house and including any surviving spouse as an additional unit to the number of children. For instance, where a house has four children and one wife, then that house is considered as having five units and each house divides the Property or Estate according to the units.

The process of succession

To kick start the process of inheriting the estate of the deceased in intestacy, a beneficiary has to do the following:

Petition the court for grant of letters of administration. The importance of these letters of administration grants you the right to administer the estate of the deceased, any person who tries to administer the estate of the deceased without the grant of letters of administration is guilty of the offence of intermeddling and can there be imprisoned or fined. The administrator has a duty to safeguard the interests of the beneficiaries of the estate.

For one to apply for this grant of letters of administration one needs to have the following documents :

1.      A letter from the area chief listing all the beneficiaries of the property, their ages and their relationship to the deceased

2.      A certified copy of the death certificate of the deceased

3.      IDs of the persons petitioning the court.

4.      IDs of the beneficiaries.

The law allows between 2 to 4 people to apply to be administrators of the deceased in intestate succession. Once all the beneficiaries sign the court documents, the applicant shall proceed to file them in court and fees are assessed. 

Once filed in court and the requisite fees are paid, a Petition is published in the Kenya Gazette as notice to members of the public of an application for grant of letters of administration for a period of 30 days. The reason for publishing this application in the Kenya Gazette is to; firstly, notify the public of the person intending to administer the estate of the deceased and allow for any person who has any contention to object, secondly, it is a requirement by law and thirdly if any beneficiary is has been left out in the application, they may apply to the court to be included.

Once the gazettement period has lapsed and no objection filed, the court will issue the applicant said letters of administration for a period of 6 months to give the applicants time to recover the deceased’s assets, agree on the mode of distribution of the estate among the beneficiaries BUT the administrators do not have the power to distribute the estate at this stage. In default of any agreement on the mode of distribution of the estate by all the beneficiaries, the matter may be referred to the public trustee for necessary distribution of the estate in accordance with Section 40 of the Law of Succession Act and in any event, within a period of six(6) months.

To get the power to distribute the assets, the grant Letters of Administration have to be confirmed by the Court. Such confirmation is done once the 6 months lapse. The applicants can proceed to apply for a confirmation of the grant of letters of administration before one can proceed to distribute the deceased assets. The law requires the administrator to complete administration of the Estate within six (6) months of confirmation of the grant of Letters of Administration or such longer time as the Court may allow. They also have an obligation to produce to the Court a full and accurate inventory of the assets and liabilities of the Deceased as well as a full and accurate account of all the dealings therewith and the completed administration.

 

The process of divorce proceedings in Kenya

In Kenya, the process of dissolving a marriage follows specific legal procedures as outlined in the Marriage Act, 2014. While it can be complex and time-consuming, understanding the steps involved can help smooth the process.

1.      Filing the divorce petition.

The first step in initiating a divorce is the filing of a petition. Here the petitioner will prepare the divorce petition for the dissolution of the marriage and attach the divorce papers as discussed above.

If the petitioner is represented by an advocate, they will handle the preparation and submission of these documents to the Court. The advocate will also prepare a notice to appear, requiring the respondent (the other spouse) to indicate within 14 days, whether or not they contest the divorce.

2.      Response by the Respondent

Once served with the divorce petition, the Respondent has 14 days to file their response. They may then choose to either agree to the divorce or contest the grounds for divorce by filing a defense.

If the respondent does not respond within the required time, the court may proceed with the case based solely on the petitioner’s evidence.

3.      Issuance of Registrar’s Certificate

After the petition is filed and responses (if any) are submitted, the next step is for the petitioner’s lawyer to request the Court to issue a Registrar’s Certificate. This certificate indicates that the case is ready for a hearing and that the Court has reviewed the pleadings.

4.      The Hearing

The hearing typically occurs 14 days after the issuance of the Registrar’s Certificate. During the hearing, both parties are required to present their evidence and call their witnesses to support their cases. The petitioner must provide evidence showing that the marriage has irretrievably broken down, while the respondent may seek to refute these claims.

5.      Judgement and Decree Nissi

Once the hearing is complete, the court will set a judgment date, typically within 21 days. During judgment, the Court will decide whether sufficient grounds exist for the divorce. If the Court is satisfied, it will issue a Decree Nissi which is the first stage in the dissolution of the marriage. This decree signifies that the Court has granted the divorce but allows a 30-day window for either party to reconsider their decision or raise objections.

6.      Decree Absolute

If no objections are raised within 30 days, the petitioner may request the Court to issue a Decree Absolute, which finalizes the divorce and officially dissolve the marriage. The Decree Absolute is the final legal document that confirms the end of the marital relationship.

In conclusion, filing for divorce in Kenya requires family law expert guidance and adherence to set procedures to ensure a fair, efficient, and lawful dissolution of marriage.

Notary Public in Kenya

Who is a notary public?

A Notary Public is an Advocate who is appointed to perform within Kenya the functions and duties commonly performed by a notary public of the United Kingdom. The main function is the certification and authentication of documents so that they can be relied on by contracting parties, public authorities, and others abroad.

The law governing Notary Public

The appointment and practice by Notaries Public is governed by the Notaries Public Act, Cap 17 Laws of Kenya and the Notaries Public Rules 1958.

 To become a Notary Public in Kenya, an individual must be a practicing Advocate (lawyer) with a minimum of five years of legal practice in Kenya and hold a valid practicing certificate; essentially, they need to be a qualified lawyer with at least five years of experience to be eligible for a Notary Public appointment.

Key considerations for qualification:

 
Key points about Notary Public qualifications in Kenya:

Section 3 of the Notaries Public Act provides that “No advocate shall be appointed under this Act unless he has practised as an advocate in Kenya for not less than five years immediately preceding his application to be appointed as a notary public.”

 
Must be an Advocate:
Only practicing lawyers (Advocates) can become Notaries Public in Kenya.

Five years of practice:
An Advocate must have practiced law in Kenya for at least five years before applying for a Notary Public position.

Valid practicing certificate:
The individual needs to hold a current and valid practicing certificate as an Advocate.

The Application process:
To become a Notary Public, an eligible Advocate needs to make an application by Submitting duplicate applications and six (6) concurrent Practising Certificates to the Registrar. Currently, the application is submitted and processed exclusively online via the Judiciary Advocates Management System (JAMS). 

The documents uploaded include:

1. Petition addressed to the Chief Justice confirming that the Applicant has at least 5 years of practice
2. Statutory Declaration on fitness for appointment
3. Certificates by 2 advocates accompanied by copies of their Practicing Certificates

Upon appointment, the Advocate signs the Roll of Notaries Public and is issued with a Certificate of Enrolment as a Notary Public which expires on the 31st of December in the year it is issued. Subsequently, the Notary Public must renew their appointment on an annual basis.

Process of Administration of the Estate in Kenya

 The process starts as follows:

A Petition is filed in Court by surviving dependants of the deceased such as a spouse or child in order to obtain letters of administration over the property of a deceased person.

The Petition filed in Court is accompanied by the following documents:

I. A letter from the local area administration such as Area Chief giving particulars of the deceased dependants.

II. An affidavit giving sufficient details to identify the assets and liabilities of the deceased together with particulars of the deceased dependants, their relation to the deceased and their ages.

III. An affidavit of justification of proposed administrator(s) which states the net worth of the proposed administrators.

IV. An affidavit of justification of proposed sureties sworn by two people acting as sureties of the proposed administrator(s) with the sureties executing a guarantee that they will make good any loss which the estate of the deceased may suffer if the administrator breaches his/ her duties in the administration of the estate to a set limit.

V. A Consent by all persons that are also legally entitled to obtain the grant of letters of administration indicating that they have agreed to the Petition.

• Once filed in court, a Petition is published in the Kenya Gazette as notice to members of the public of an application for grant of letters of administration.
• A 30-day period is provided during which an objection may be made to the grant of the letters of administration to the Petitioner.
• Such grant gives the administrator power to manage the assets of the deceased but not the power to distribute the assets.
• To get the power to distribute the assets, the letters of administration have to be confirmed by the Court. Such confirmation is done after the lapse of a period of six months from the date of issue.
• However, the courts will in compelling cases (depending on the circumstances of the case) confirm a grant before the lapse of six months.

Courtsey of : AIP

Consent of the Land Control Board

 Introduction

Regulated by the Land Control Act (Cap 302), this consent is essential for transactions involving agricultural land. Section 2 of the Act defines agricultural land as any land that is not within a municipality, township, market, or an area that was a township or trading center under the now-repealed Township or Trading Centers Ordinance. Additionally, any land that is in the Nairobi area or any municipality, township, or urban centre declared as agricultural land by the Cabinet Secretary falls under this definition.

However, the definition of agricultural land provided in Section 2 comes with a proviso that excludes any land restricted by its title’s conditions or covenants or any limitation imposed by law from being used for agriculture or required to be used for non-agricultural purposes.

Land Control Boards, established at different levels, play a crucial role in controlling transactions. The Act specifies transactions requiring consent, such as the sale, transfer, lease, mortgage, or partition of agricultural land. The Act aims to ensure proper land use, equitable distribution, and prevent speculative acquisitions.
 

Transactions requiring the Land Control Board Consents

S.6 (1) of the Land Control Act lists transactions which require LCB consent. Failure to obtain LCB consent renders that transaction null and void. The transactions listed are as follows:

a) Sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing in any agricultural land situated within a land control area;

b) Division of agricultural land into two or more parcels to be held under separate titles;

c) Issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or co-operative society which owns agricultural land.

Under S.6 (2), the declaration of a trust of agricultural land situated within a land control area also requires LCB consent.