By Marion Ogeto, Ann Wangui and Sharon Ndinda (Legal Assistants) with assistance from Joyce Muriithi (Associate)
The Law of Succession Act (Cap 160 Laws of Kenya) (“the LSA”) has been operational for decades following its enactment in 1981. Prior to the enactment of the LSA, succession matters were governed by a plethora of laws including the African Wills Act (testate succession – where the deceased has a will) and customary law (intestate succession – where the deceased has no will) for Africans. There was also the Hindu Succession Ordnance (intestate succession) and the Hindu Marriage and Divorce Ordnance (testate succession) governing Hindus and the Mohammedan Marriage, Divorce and Succession Act for Muslims. The LSA was therefore enacted in order to consolidate these laws into one system.
Given that the LSA has been operative for many years, it was imperative to revise the Act to bring it into conformity with fundamental societal developments especially gender equality. To this end, the Senate has proposed amendments to the LSA which are outlined in the Law of Succession (Amendment) Bill 2020 (“the Bill”). The overall effect of the amendments proposed by the Bill is to ensure gender equity is observed in the law of succession in Kenya.
The Proposed Amendments
Some of the proposed amendments captured in the Bill include amendments to the following provisions of the LSA:
An analysis of the effects of the Amendments to the Law of Succession Act (LSA) 1981
The amendments seek to address some of the most pertinent issues that contribute to succession law disputes in Kenya, including:
In particular, the following concerns are addressed by the Bill:
a) Dependency and Gender Equality
b) Communal Land Protection
c) Effects of Re-marriage to succession of the Deceased’s Estate
d) Equal distribution rights between parents of the deceased
Overall, the effect of the amendments has been to embrace the principle of gender equality espoused under Article 27(4) of the Constitution of Kenya into the law on succession in Kenya. It is indeed appalling that the LSA as currently enacted still perpetuates gender biases and differential treatment that is prejudicial to women for the most part. The Amendments to the LSA are therefore a very welcome move to the extent that they promote gender equality.
However, further revision of the Act may be needed to consider the questions of dependents raised above and the termination of the right to inheritance upon re-marriage.