The Law of Succession (Amendment) Bill, 2020: A welcome review of the legislation relating to Succession in Kenya

By Marion Ogeto, Ann Wangui and Sharon Ndinda (Legal Assistants) with assistance from Joyce Muriithi (Associate)

Introduction

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:

1. Dependency clause – section 29, which presently provides the definition of dependents, is to be amended to provide that husbands need not prove dependency as is required under the LSA. The provision would therefore allow either spouse to inherit as a matter of right;
2. Community land clause – section 32, which presently provides for the property excluded from the intestacy provisions in Part V of the LSA, is to be amended to include community land under Article 63 of the Constitution of Kenya thus community land shall be governed by the existing customary law of the respective community;  
3. Re-marriage clause – section 35, which presently provides the manner of distribution of property where the deceased has left one spouse and children, is to be amended to provide either spouse will lose their interest on inheritance if they re-marry. This is different from the current Act where only the widow loses her inheritance interest upon re-marrying;
4. Equal distribution rights between parents clause – section 39, which presently provides the manner of distribution where a person dies intestate and has no surviving spouse or children, is to be amended to provide the first recipients as the parents of the deceased in equal share as opposed to the current provision whereby the father was to receive first before the mother.

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:

• Dependency and Gender Equality and in particular the recognition of widowers as dependents in their own right without the need to provide evidence to prove that they were dependents;
• Equal distribution rights between parents of the deceased where it had previously been recognized the father to the deceased had the prior rights to the mother in respect of the estate of the deceased. The proposed amendments will ensure that mothers of the deceased who die intestate are entitled to receive an equal share to their husbands in the event the deceased did not leave behind wife(ves) or children;
• Elimination of former wives automatic rights in the deceased’s estate. The effect of this is to cause former wives who claim a share in the deceased’s estate to firstly satisfy to the courts that they were being maintained by the deceased prior to his death before being entitled to a share of the estate; and
• Re-marriage and what will happen to beneficiaries’ interests upon subsequent marriages.

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

Conclusion

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.