Who is entitled to take out a Grant of Letters of Administration?

Section 66 of the Act stipulates that preference is given to the following      persons to administer the estate of a deceased person where the deceased dies intestate:

i)             The surviving spouses or spouses, with or without association of other beneficiaries.

ii)            Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests.

This means that, where the deceased is married, their spouse ranks first in priority and would be entitled to apply for letters of administration. In the order of beneficial interest provided for in the Act, subsequently the next in priority are children of the deceased. Where the deceased has no surviving spouse or children the Act provides for the following order of priority as per section 39 of the Act:

“Father; or if dead, mother; or if dead, brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none, half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none, the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares. Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.”

As stated in the presentation, in the case of Constitutional Petition No.E017 of 2021: Ripples International vs. The Attorney General & Others section 39 was declared unconstitutional as it discriminatorily gives priority to the father of the deceased over the mother.

As per section 56 of the Act, a minor, person of unsound mind or a bankrupt cannot be an administrator of a deceased persons estate.

A body corporate or trust corporation may be issued with Grant of Letters of Administration in accordance with section 57 of the Act.

It is important to note that when petitioning for Grant of Letters of Administration, it is important to obtain the consent of all other person who are rank in priority or are equal in rank in their entitlement to apply for the Grant.

 

The Kenyan Law on Adopted, Legitimated and Illegitimate Children

Adopted, Legitimated and Illegitimate Children

Previously intestacy provisions in English succession law statutes only applied to legitimate children, whether of the deceased or any other relative. African customary law and Islamic law generally provide only for the legitimate children of the intestate. The Law of Succession Act has modified the position and provides for adopted, legitimated and illegitimate children.

 

(a)  Adopted children

For the purpose of entitlement under the rules of intestacy, an adopted child is deemed, by virtue of sections 171, 172, 174, 175 and 176 of the Children Act, 2001, (especially section 174 on Intestacies, wills and settlements)related to the adopted parent and not the natural parental. For the purpose of determining whether an adopted child was living at the date of the intestate’s death, the adopted child is treated as having been born on the date of the adoption. An adopted child cannot therefore claim on the intestacy of a natural parent, but takes on the intestacy of the adoptive parent and other relatives by adoption, such as grandparents, brothers and sisters, and so on. Likewise, if the adopted child dies intestate, the child’s adopted parents, and not the natural parents, will be capable of benefiting under the rules of intestacy- as will brothers and sisters, grandparents and so on by adoption.             

According to the Court of Appeal in WillingstoneMuchigiKimari vs. Rahab Wanjiru Mugo NairobiCACA No. 168 of 1990 (Gachuhi, Muli and Akiwumi JJA) a child informally adopted by a female deceased person is not a child for the purpose of the succession to the estate of such deceased person. Section 3(2) of the Law of Succession Act only caters for children who have been recognised by a male person as his own or whom he has voluntarily assumed permanent responsibility. 

 

(b)  Legitimated children

A child is legitimated by the subsequent marriage of their parents. Legitimated children are deemed to have been born legitimate and can therefore take on intestacy in the same way as any legitimate child (Section 3 of the Legitimacy Act Cap 145).

 

(c)  Illegitimate children

The definition of child in section 3(2) of the Act includes an illegitimate child, that is: a child born to a female person outside wedlock, a child whom a male person has recognised or in fact accepted as his child or for whom he has assumed permanent responsibility. The Court of Appeal in WillingstoneMuchigiKimari vs. Rahab Wanjiru Mugo, stated that the definition in section 3(2) of a child whom the deceased in fact had accepted as his own or for whom the deceased had assumed permanent responsibility only applies to a child whom a male deceased person had accepted or assumed permanent responsibility over. 

 

 As regards paternity section 118 of the Evidence Act is a guide. The provision states that  the fact that a child was born during the continuance of a valid marriage between the mother of the child and any man, or within two  hundred and eighty days after its dissolution, the mother remaining unmarried, should be taken to be conclusive proof that the child is a legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when the child would have been begotten. Under section 3(2) of the Law of Succession Act, the child has the same inheritance rights as the legitimate children of the intestate. 

Read More from: PROBATE AND ADMNISTRATION LAW NOTES 

🏛️ Case Summary: Dennis Kivuti Mungai v AG

Background & Parties

• Plaintiff/Petitioner: Dennis Kivuti Mungai, a widower married under Kiembu customs.
• Defendant/Respondent: Attorney General representing the State.
• The case concerns Section 29(c) of the Succession Act, which requires a widower to prove he was being maintained by his deceased wife in order to inherit from her estate, whereas widows face no similar burden. 

 

⚖️ Key Legal Issue

• Whether Section 29(c) discriminates against men by imposing an unfair burden of proof for inheritance, thus violating constitutional rights and principles of equality under Article 27 of the Constitution.

 

📌 Facts & Allegations

• Mungai and his late wife, Caroline Wawira, married in April 2002, under customary law, and had two children. Wawira tragically died on July 24, 2023 standardmedia.co.ke.
• Following her death, Mungai claimed he was excluded by the deceased’s family during burial and denied inheritance rights.
• The core grievance: Section 29(c) unfairly requires a widower to prove maintenance by the deceased wife, whereas widows automatically qualify as dependents standardmedia.co.ke.

 

🧑‍⚖️ Petitioner’s Arguments

• The requirement is sex-based discrimination, violating Article 27 (equality before the law).
• It imposes an unfair burden on widowers, denying them equal succession rights standardmedia.co.ke.
• Mungai urged the court to declare the section unconstitutional and direct Parliament to amend it for gender equality. 

 

🚨 Status

• As of the last report (June 2025), the suit is pending in the High Court.
• No judgment has been issued yet; proceedings on equality and constitutional interpretation continue.

 

👩‍⚖️ Constitutional Implications

• If successful, the case could reshape succession law, harmonizing it with constitutional gender equality mandates.
• It highlights the tension between customary/succession law and modern constitutional protections under Article 27.

 

Next Steps:

• Follow-up judicial updates once the High Court gives directions or judgment.
• Monitor whether the Attorney General defends the status quo or concedes constitutional flaws.

 

Review: Article 37 – Freedom of Assembly, Demonstration, Picketing and Petition

Article 37 – Freedom of Assembly, Demonstration, Picketing and Petition

"Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities."

🔍 Key Points to note:

• This is a constitutional right available to every person in Kenya.
• The right must be exercised peacefully and without arms.
• It includes the ability to:
• Assemble (gather in groups)
• Demonstrate (publicly show support or opposition)
• Picket (stand or march to protest or draw attention)
• Petition public authorities (formally present grievances or requests)

⚖️ Implications:

• The state cannot unreasonably restrict peaceful protests or assemblies.
• However, regulations (e.g. Public Order Act) may impose procedural requirements such as notification to authorities.
• Violent or armed protests are not protected under this Article.

 #END

The Context of Summary Dismissal in Kenya:

Under the Employment Act, 2007, an employer can summarily dismiss an employee without notice for gross misconduct. However, Section 41 of the Act mandates that before terminating an employee (including summary dismissal), the employer must:

1. Explain the reason for the contemplated termination in a language the employee understands.
2. Allow the employee to respond to the allegations.
3. Afford the employee the right to have another employee or a trade union representative present during any hearing.

These requirements underpin the principle of natural justice, ensuring an employee's right to be heard.