Law of Succession Act

Section 5. Persons capable of making wills and freedom of testation Section 5(1) Subject to the provisions of this Part and Part III, every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses. Section 5(2) A female person, whether married or unmarried, has the same capacity to make a will as does a male person. Section 5(3) Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing. Section 5(4) The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who so alleges. [Act No. 8 of 1976 , s. 3.]

Section 6. Appointment by will of executor Section A person may, by will, appoint an executor or executors.

Section 7. Wills caused by fraud, coercion, importunity or mistake

Section 8. Form of wills Section A will may be made either orally or in writing.

Section 9. Oral wills Section 9(1)(a) it is made before two or more competent witnesses; and Section 9(1)(b) the testator dies within a period of three months from the date of making the will: Section 9(2) No oral will shall be valid if, and so far as, it is contrary to any written will which the testator has made, whether before or after the date of the oral will, and which has not been revoked as provided by sections 18 and 19 .

Section 10. Proof of oral wills Section If there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except so far as its contents are proved by a competent independent witness. [Act No. 13 of 1978 , Sch.]

Section 11. Written wills Section the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;

Section 12. Incorporation of papers by reference Section If a testator, in a will or codicil, refers to another document then actually written, and expressing any part of his intentions, that document, where it is clearly identified as the document to which the will refers, shall be considered as forming part of the will or codicil in which it is referred to.

Section 13. Effect of gift to attesting witness Section 13(1) A will shall not be considered as insufficiently attested by reason of any benefit thereby given, either by way of bequest or by way of appointment to any person attesting it, or to his or her spouse. Section 13(2) A bequest to an attesting witness (including any direction as to payment of costs or charges) or a bequest to his or her spouse shall be void, unless the will is also attested by at least two additional competent and independent witnesses, in which case the bequest shall be valid. [Act No. 8 of 1976 , s. 4.]

Section 14. Witness not disqualified by being executor Section No person, by reason of his being an executor of a will, shall be disqualified as a witness to prove the execution of the will or to prove the validity or invalidity thereof.

Section 15. Existing wills Section Notwithstanding the provisions of this Part, any written will executed before the commencement of this Act shall, whether the testator dies before or after the commencement of this Act, be treated as properly executed if it was executed according to the requirements of the law in force at the date of execution.

Section 16. Formal validity of other wills

Section 17. Will may be revoked or altered Section A will may be revoked or altered by the maker of it at any time when he is competent to dispose of his free property by will.

Section 18. Revocation of will Section 18(1) Save as provided by section 19 , no will or codicil, or any part thereof, shall be revoked otherwise than by another will or codicil declaring an intention to revoke it, or by the burning, tearing or otherwise destroying of the will with the intention of revoking it by the testator, or by some other person at his direction. Section 18(2) A written will shall not be revoked by an oral will.

Section 19. Revocation of will by testator's marriage Section A will shall be revoked by the marriage of the maker; but where a will is expressed to be made in contemplation of marriage with a specified person, it shall not be revoked by the marriage so contemplated.

Section 20. Effect of obliteration, interlineation or alteration in will Section 20(1) No obliteration, interlineation or other alteration made in a written will after the execution thereof shall have any effect unless the alteration is signed and attested as a written will is required to be under section 11 : Provided that a will as so altered shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the will opposite or near to the alteration, or is referred to in a memorandum written at the end or some other part of the will and so signed and attested. Section 20(2) Where a typewritten or printed will purports to have been executed by the filling in of any blank spaces, there shall be a presumption that the will has been duly executed.

Section 21. Revival of will Section 21(1) No will which has been in any manner wholly revoked shall be revived otherwise than by the re-execution thereof. Section 21(2) Where only part of a will has been revoked, that part shall not be revived otherwise than by the re-execution thereof or by a subsequent will or codicil showing an intention to revive it.

Section 22. Construction of wills

Section 23. Failure of testamentary dispositions

Section 24. Election

Section 25.[Repealed by ActNo. 6 of 1984, Sch.]

Section 26. Provision for dependants not adequately provided for by will or on intestacy Section Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased's estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased's net estate. [Act No. 8 of 1976 , s. 5.]

Section 27. Discretion of court in making order Section In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit.

Section 28. Circumstances to be taken into account by court in making order Section the nature and amount of the deceased's property;

Section 29. Meaning of dependant Section the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

Section 30. Limitation of time Section No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71 .

Section 31. Characteristics Section the person making the gift is at the time contemplating the possibility of death, whether or not expecting death, as the result of a present illness or present or imminent danger; and

Section 32. Excluded property Section agricultural land and crops thereon; or

Section 33. Law applicable to excluded property Section The law applicable to the distribution on intestacy of the categories of property specified in section 32 shall be the law or custom applicable to the deceased's community or tribe, as the case may be. [Act No. 8 of 1976 , s. 6.]

Section 34. Meaning of intestacy Section A person is deemed to die intestate in respect of all his free property of which he has not made a will which is capable of taking effect.

Section 35. Where intestate has left one surviving spouse and child or children Section 35(1)(a) the personal and household effects of the deceased absolutely; and Section 35(1)(b) a life interest in the whole residue of the net intestate estate: Section 35(2) A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date. Section 35(3) Where any child considers that the power of appointment under subsection (2) has been unreasonably exercised or withheld, he or, if a minor, his representative may apply to the court for the appointment of his share, with or without variation of any appointment already made. Section 35(4)(a) the nature and amount of the deceased's property; Section 35(4)(b) any past, present or future capital or income from any source of the applicant and of the surviving spouse; Section 35(4)(c) the existing and future means and needs of the applicant and the survi...

Section 36. Where intestate has left one surviving spouse but no child or children Section 36(1)(a) the personal and household effects of the deceased absolutely; and Section 36(1)(b) the first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater; and Section 36(1)(c) a life interest in the whole of the remainder: Section 36(2) The Cabinet Secretary may, by order in the Gazette , vary the amount specified in paragraph (b) of subsection (1). Section 36(3) Upon the determination of a life interest created under subsection (1), the property subject to that interest shall devolve in the order of priority set out in section 39 . [Act No. 8 of 1976 , s. 8.]

Section 37. Powers of spouse during life interest Section A surviving spouse entitled to a life interest under the provisions of section 35 or 36 , with the consent of all co-trustees and all children of full age, or with the consent of the court, may, during the period of the life interest, sell any of the property subject to that interest if it is necessary for his own maintenance: Provided that, in the case of immovable property, the exercise of that power shall always be subject to the consent of the court. [Act No. 8 of 1976 , s. 9.]

Section 38. Where intestate has left a surviving child or children but no spouse Section Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42 , devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.

Section 39. Where intestate has left no surviving spouse or children Section 39(1)(a) father; or if dead Section 39(1)(b) mother; or if dead Section 39(1)(c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none Section 39(1)(d) half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none Section 39(1)(e) the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares. Section 39(2) 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.

Section 40. Where intestate was polygamous Section 40(1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children. Section 40(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38 .

Section 41. Property devolving upon child to be held in trust Section Where reference is made in this Act to the "net intestate estate", or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or who, being female, marry under that age, and for all or any of the issue of any child of the intestate who predecease him and who attain that age or so marry, in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate.

Section 42. Previous benefits to be brought into account Section an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or

Section 43. Presumption of survivorship Section Where two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, the deaths shall, for all purposes of this Act, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder: Provided that, in the case of spouses who died in those circumstances, the spouses shall be presumed to have died simultaneously.

Section 44. Application of Part Section 44(1) The provisions of this Part shall not, in cases of intestacy, apply to those types of property mentioned in section 32 . Section 44(2) The Cabinet Secretary may, after consultation with the Chief Justice, by order in the Gazette , suspend in any area referred to in the order all or any of the sections 45, 46, 48 or 49 . Section 44(3) Where the operation of sections 48 and 49 is suspended in any area, the High Court may make a grant of representation in respect of the estate of a deceased person whose last known place of residence was in that area, whether the value of the estate exceeds or does not exceed one hundred thousand shillings. Section 44(4) In this section "area" means a province, district or other part of Kenya. [Act No. 7 of 1975 , Sch.]

Section 45. No intermeddling with property of deceased person Section 45(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person. Section 45(2)(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and Section 45(2)(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.

Section 46. Duties of officers in relation to protection, etc., of deceased's property Section 46(1) Whenever it becomes known to any police officer or administrative officer that any person has died, he shall, unless aware that a report has already been made, forthwith report the fact of the death to the sub-chief of the sub-location or to the chief or administrative officer of the area where the deceased had his last known place of residence. Section 46(2)(a) at the request of any person who appears to have a legitimate interest in the estate of the deceased; or Section 46(2)(b) if no application for representation in respect of the estate has been made within one month after the date of the death of the deceased, Section 46(3) If any person to whom a report is made under subsection (1) finds that there is any free property of the deceased, or that the person appearing to have the greatest legitimate interest in succession to or administration of his estate are resident in any other sub-location or area, he shall forthwith report those facts to the sub-chief, chief or administrative officer of that other sub-location or area, who shall thereupon take, in respect of the property o...

Section 47. Jurisdiction of High Court Section The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice. [Act No. 8 of 1976 , s. 10A, Act No. 16 of 1977 , Sch.]

Section 48. Jurisdiction of Magistrates Section 48(1) Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49 , a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit prescribed under section 7 of the Magistrates' Courts Act ( Cap 10 ). Section 48(2) For the avoidance of doubt it is hereby declared that the Kadhis' courts shall continue to have and exercise jurisdiction in relation to the estate of a deceased Muslim for the determination of questions relating to inheritance in accordance with Muslim law and of any other question arising under this Act in relation to such estates. [Act No. 8 of 1976 , s. 10B, Act No. 21 of 1990 , Sch., Act No. 26 of 2015 , s. 23.]

Section 49. Territorial jurisdiction of Magistrates Section the magistrate may, with the consent or by the direction of the High Court, transfer the administration of an estate to any other Magistrate's court where it appears that the greater part of the estate is situated within the area of that other magistrate or that there is other good reason for the transfer;

Section 50. Appeals to High Court Section 50(1) An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final. Section 50(2) An appeal shall lie to the High Court in respect of any order or decree made by a Kadhi's Court in respect of the estate of a deceased Muslim and, with the prior leave thereof in respect of any point of Muslim law, to the Court of Appeal. [Act No. 8 of 1976 , s. 10D, Act No. 13 of 1978 , Sch., Act No. 21 of 1990 , Sch.]

Section 51. Application for grant Section 51(1) Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner. Section 51(2)(a) the full names of the deceased; Section 51(2)(b) the date and place of his death; Section 51(2)(c) his last known place of residence; Section 51(2)(d) the relationship (if any) of the applicant to the deceased; Section 51(2)(e) whether or not the deceased left a valid will; Section 51(2)(f) the present addresses of any executors appointed by any such valid will; Section 51(2)(g) in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased; Section 51(2)(h) a full inventory of all the assets and liabilities of the deceased; and Section 51(2)(i) such other matters as may be prescribed. Section 51(3)(a) an authenticated copy thereof shall be so annexed; or Section 51(3)(a)(i) an authenticated copy thereof shall be so annexed; or Section 51(3)(a)(ii) the names and addresses of all persons alleged to be able to prove it...

Section 52. Wilful and reckless statements in application for grant

Section 53. Forms of grant Section probate of the will to one or more of the executors named therein; or

Section 54. Limited grants Section A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.