This Act may be cited as the Law of Succession Act.
Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.
The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.
Subject to subsection (4), the provision of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of this death is a Muslim to the intent that in lieu of such provisions the devolution of the estate of any such person shall be governed by Muslim law.
Notwithstanding the provisions of subsection (3), the provisions of Part VII relating to the administration of estates shall where they are not inconsistent with those of Muslim law apply in case of every Muslim dying before, on or after the 1st January, 1991. [Act No. 16 of 1977, Sch., Act No. 13 of 1978, Sch., Act No. 21 of 1990, Sch.]
In this Act, except where the context otherwise requires-
means service with the armed forces or merchant marine on a field of military operations or at sea, or proceeding to or from such field or sea, or under orders to proceed to such field or sea, or in being in some place for the purpose of proceeding to such field or sea;
means a person to whom a grant of letters of administration has been made under this Act;
means land used for agricultural purposes which is not within a municipality or a township or a market, but does not include land registered under the provisions of any written law;
, with reference to the investment of any fund, means an investment of such type as is authorized for investment of that fund by any will applying thereto, or as is for the time being authorized by any written law for the investment of trust funds;
includes the relief of poverty, the advancement of education, the advancement of religion, and any other purpose of a public nature and capable of administration by a court of law which benefits the community at large or the inhabitants or a particular class of inhabitants of a particular locality;
means a testamentary instrument made in relation to a will, explaining, altering or adding to its dispositions or appointments, and duly made and executed as required by the provisions of this Act for the making and execution of a will;
means a person of sound mind and full age;
means a court having jurisdiction under this Act in the matter in question;
means a testamentary gift which is in its nature general but which manifests an intention that the gift shall be primarily satisfied out of a specified fund or a specified part of the property of the testator, but shall, upon failure of that fund or property, be met from the general estate;
means the free property of a deceased person;
means a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided;
, in relation to a deceased person, means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death;
means having attained the age of eighteen years;
means a testamentary gift, whether specific or general, of property described in general terms to be provided out of the general estate of the testator, whether or not also charged on any specific part of his estate;
means an unfettered power of appointment to such object or objects as the appointor may think fit;
means a testamentary gift of all the property of the testator not otherwise disposed of;
means a family unit comprising a wife, whether alive or dead at the date of the death of the husband and the children of that wife;
includes rents and profits;
means a witness who is not a beneficiary under a will or the spouse of any such beneficiary;
means a testamentary gift which, but for some specific limitation therein expressed or implied, would constitute a general residuary bequest;
means any person who is not of full age;
means any person who professes the religion of Islam and accept the unity of God and Muhammed as his prophet;
means the law applicable to a person who is a Muslim at the time of his death;
means the estate of a deceased person after payment of reasonable funeral expenses, debts and liabilities, expenses of obtaining probate or letters of administration, other reasonable expenses of administration and estate duty, if any;
means the estate of a deceased person in respect of which he has died intestate after payment of the expenses, debts, liabilities and estate duty set out under the definition of "net estate" so far as the expenses, debts, liabilities and estate duty are chargeable against that estate;
means a testamentary gift of all of a particular property not otherwise disposed of;
includes an annuity, a general legacy, a demonstrative legacy so far as it is not discharged out of the specified fund or property, and any other general direction by the testator for the payment of money, including all death duties free from which any gift is made to take effect;
means clothing and articles of personal use and adornment, furniture, appliances, pictures, ornaments, food, drink, utensils and all other articles of household use or decoration normally to be associated with a matrimonial home, but does not include any motor vehicle or any other thing connected with the business or profession of the deceased;
means the executor or administrator, as the case may be, of a deceased person;
means provision by a parent or person in loco parentis to establish a child in life;
means power vested in some person to determine the disposition of property of which that person is not the owner;
means the certificate of a court of competent jurisdiction, that a will, of which a certified copy is attached in the case of a written will, has been proved a valid will with a grant of representation to the executor in respect of the estate;
means a purchaser for money or money's worth;
means the probate of a will or the grant of letters of administration;
means a testamentary gift of a particular part of the property of the testator, which identifies that part by a sufficient description, whether in specific or in general terms, and manifests an intention that that part shall be enjoyed or taken in the state and condition indicated by that description;
means power of appointment to such object or objects within a special description or class as the appointor may think fit;
means a husband or a wife or wives recognised under the Marriage Act (No. 4 of 2014);
means an incorporated banking or insurance or guarantee or trust company having a subscribed capital of not less than five hundred thousand shillings, or any body corporate which has a subscribed capital of not less than five hundred thousand shillings and which is for the time being empowered (by or under any written law, its charter, memorandum of association, deed of settlement or other instrument constituting it or defining its powers), to undertake trusts, but for so long a time only as that body corporate shall not, by any prospectus, circular, advertisement or other document issued by it or on its behalf, state or hold out that any liability attaches to the Public Trustee or to the Consolidated Fund in respect of any act or omission of that body corporate when acting as an executor or administrator:
Provided that a body corporate which would be a trust corporation but for the fact that its subscribed capital is less than five hundred thousand shillings may act as executor or administrator in any case with the leave of the court on giving such security as the court may determine, and thereupon for the purpose of so acting as executor or administrator that corporation shall have all the rights and privileges conferred on a trust corporation by this Act;
includes a wife who is separated from her husband and the terms "husband" and "spouse", "widow" and "widower" shall have a corresponding meaning;
means the legal declaration by a person of his wishes or intentions regarding the disposition of his property after his death, duly made and executed according to the provisions of Part II, and includes a codicil.
References in this Act to "child" or "children" shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.
A child born to a female person out of wedlock, and a child as defined by subsection (2) as the child of a male person, shall have relationship to other persons through her or him as though the child had been born to her or him in wedlock.
Where the date of birth of any person is unknown or cannot be ascertained, that person shall be treated as being of full age for the purposes of this Act if he has apparently attained the age of eighteen years, and shall not otherwise be so treated.
Notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular sections 29 and 40 thereof, and her children are accordingly children within the meaning of this Act.
Except as otherwise expressly provided in this Act or by any other written law-
succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, whatever the domicil of that person at the time of his death;
succession to the movable property of a deceased person shall be regulated by the law of the country of the domicil of that person at the time of his death.
A person who immediately before his death was ordinarily resident in Kenya shall, in the absence of proof of domicil elsewhere, be presumed to have been domiciled in Kenya at the date of death.
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.
A female person, whether married or unmarried, has the same capacity to make a will as does a male person.
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.
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.]
A person may, by will, appoint an executor or executors.
A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void.
A will may be made either orally or in writing.
No oral will shall be valid unless-
it is made before two or more competent witnesses; and
the testator dies within a period of three months from the date of making the will:
Provided that an oral will made by a member of the armed forces or merchant marine during a period of active service shall be valid if the testator dies during the same period of active service notwithstanding the fact that he died more than three months after the date of making the will.
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.
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.]
No written will shall be valid unless-
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;
the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;
the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
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.
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.
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.]
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.
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.
Nothwithstanding the provisions of this Part, every will, whether of movable or immovable property, and whether executed before or after the commencement of this Act, shall be treated as properly executed, if its execution conformed, either at the time of execution or at the time of the testator's death, to the law in force-
in the state where it was executed; or
in the state where the property is situated; or
in the state where, at the time of its execution or the testator's death, he was domiciled; or
in a state of which the testator was a national either at the time of its execution or on his death.
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.
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.
A written will shall not be revoked by an oral will.
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.
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.
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.
No will which has been in any manner wholly revoked shall be revived otherwise than by the re-execution thereof.
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.
Wills shall be construed in accordance with the provisions of the First Schedule to this Act.
Testamentary gifts and dispositions shall fail by way of lapse or ademption in the circumstances and manner and to the extent provided by the Second Schedule.
Beneficiaries under testamentary gifts or dispositions shall be put to election in the circumstances and manner and to the extent provided by the Third Schedule.
Repealed by Act No. 6 of 1984, Sch.
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.]
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.
In considering whether any order should be made under this Part, and if so what order, the court shall have regard to-
the nature and amount of the deceased's property;
any past, present or future capital or income from any source of the dependant;
the existing and future means and needs of the dependant;
whether the deceased had made any advancement or other gift to the dependant during his lifetime;
the conduct of the dependant in relation to the deceased;
the situation and circumstances of the deceased's other dependants and the beneficiaries under any will;
the general circumstances of the case, including, so far as can be ascertained, the testator's reasons for not making provision for the dependant.
[L.N. No. 256 of 1976, Sch.]
For the purposes of this Part, "dependant" means-
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;
such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.
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.
A gift made in contemplation of death shall be valid, notwithstanding that there has been no complete transfer of legal title, if-
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
a person gives movable property (which includes any debt secured upon movable or immovable property) which he could otherwise dispose of by will; and
there is delivery to the intended beneficiary of possession or the means of possession of the property or of the documents or other evidence of title thereto; and
a person makes a gift in such circumstances as to show that he intended it to revert to him should he survive that illness or danger; and
the person making that gift dies from any cause without having survived that illness or danger; and
the intended beneficiary survives the person who made the gift to him:
Provided that-
no gift made in contemplation of death shall be valid if the death is caused by suicide;
the person making the gift may, at any time before his death, lawfully request its return.
The provisions of this Part shall not apply to-
agricultural land and crops thereon; or
livestock,
in the various Districts set out in the Schedule: West Pokot Wajir Turkana Garissa Marsabit Tana River Samburu Lamu Isiolo Kajiado Mandera Narok [L.N. No. 94 of 1981, Sch.]
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.]
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.
Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to-
the personal and household effects of the deceased absolutely; and
a life interest in the whole residue of the net intestate estate:
Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.
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.
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.
Where an application is made under subsection (3), the court shall have power to award the applicant a share of the capital of the net intestate estate with or without variation of any appointment already made, and in determining whether an order shall be made, and if so what order, shall have regard to -
the nature and amount of the deceased's property;
any past, present or future capital or income from any source of the applicant and of the surviving spouse;
the existing and future means and needs of the applicant and the surviving spouse;
whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will;
the conduct of the applicant in relation to the deceased and to the surviving spouse;
the situation and circumstances of any other person who has any vested or contingent interest in the net intestate estate of the deceased or as a beneficiary under his will (if any); and
the general circumstances of the case including the surviving spouse's reasons for withholding or exercising the power in the manner in which he or she did, and any other application made under this section.
Subject to the provisions of sections 41 and 42 and subject to any appointment or award made under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children. [Act No. 8 of 1976, s. 7, Act No. 16 of 1977, Sch.]
Where the intestate has left one surviving spouse but no child or children, the surviving spouse shall be entitled out of the net intestate estate to-
the personal and household effects of the deceased absolutely; and
the first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater; and
a life interest in the whole of the remainder:
Provided that if the surviving spouse is a widow, such life interest shall be determined upon her re-marriage to any person.
The Minister may, by order in the Gazette, vary the amount specified in paragraph (b) of subsection (1).
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.]
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.]
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.
Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority-
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.
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.
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.
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.
Where-
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
property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35,
that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.
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.
The provisions of this Part shall not, in cases of intestacy, apply to those types of property mentioned in section 32.
The Minister 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.
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.
In this section "area" means a province, district or other part of Kenya. [Act No. 7 of 1975, Sch.]
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.
Any person who contravenes the provisions of this section shall-
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
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.
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.
Any person to whom a report is made under subsection (1) shall -
at the request of any person who appears to have a legitimate interest in the estate of the deceased; or
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,
forthwith proceed to the last known place of residence of the deceased, and take all necessary steps for the protection of his free property found there, for ascertainment of his other free properties (if any), for ascertainment of all persons appearing to have any legitimate interest in succession to or administration of his estate, and for the guidance of prospective executors or administrators as to formalities and duties: Provided that if the last known place of residence of the deceased is situated in a municipality, or when the deceased dies outside Kenya wherever his property is situated, the person to whom a report is made under subsection (1) shall not take the action which he is required to take under this subsection unless and until he has first reported the death to the Public Trustee, who may if he so wishes himself take the action instead of that person;
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 or persons, the steps are prescribed by subsection (2).
Any assistant chief, chief or administrative officer becoming aware that there is in his sub-location or area any free property of a deceased person, or that there are resident in his sub-location or area any persons appearing to have the greatest legitimate interest in succession to or administration of the estate of a deceased person, but that no grant of representation in respect of that estate has yet been made, shall, at the request of any person who appears to have any legitimate interest in that estate, and without waiting for a report under this section, forthwith take, in respect of the property or persons, the steps prescribed by subsection (2).
A person who is required to take the steps referred to in subsection (2) -
shall forthwith report to the Public Trustee the death of the person concerned; and
notify the Public Trustee of the steps taken by him pursuant to that subsection.
[Act No. 8 of 1976, s. 10.]
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.]
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(1) of the Magistrates' Courts Act, Act (No. 26 of 2015).
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.]
The Magistrate's Court within whose area a deceased person had his last known place of residence shall, if the gross value of the estate of the deceased does not exceed the pecuniary limits set out in section 7(1) of the Magistrates' Courts Act, 2015, have in respect of that estate the jurisdiction conferred by section 48. Provided that -
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;
if the deceased had his last known place of residence outside Kenya, the High Court shall determine which magistrate shall have jurisdiction under this section;
every Magistrate's Court shall have jurisdiction, in cases of apparent urgency, to make a temporary grant of representation limited to collection of assets situated within his area and payments of debts, regardless of the last known place of residence of the deceased.
[Act No. 8 of 1976, s. 10C, Act No. 26 of 2015, s. 24.]
In any proceedings for an application or dispute relating to the administration of a deceased person's estate, the Court hearing the application or dispute may on its own motion or upon an application by any of the parties, direct that any persons, not being members of the Court or parties to the case or their advocates, be excluded from the Court.
The Court may prohibit the publication of the proceedings on the matter in respect of which a direction is given under subsection (1). [Act No. 18 of 2018, Sch.]
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.
An appeal shall lie to the High Court in respect of any order or decree made by a Kadhis' 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.]
The Chief Justice may in consultation with the Chief Kadhi, make rules of court for the better carrying into effect in relation to the estates deceased Muslims of the provisions of sections 47, 48, 49 and 50 and, in particular for regulating the exercise of the jurisdiction conferred by this Act. [Act No. 21 of 1990, Sch.]
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.
An application shall include information as to -
the full names of the deceased;
the date and place of his death;
his last known place of residence;
the relationship (if any) of the applicant to the deceased;
whether or not the deceased left a valid will;
the present addresses of any executors appointed by any such valid will;
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;
a full inventory of all the assets and liabilities of the deceased; and
such other matters as may be prescribed.
Where it is alleged in an application that the deceased left a valid will -
if it was written, the original will shall be annexed to the application, or if it is alleged to have been lost, or destroyed otherwise than by way of revocation, or if for any other reason the original cannot be produced, then either -
an authenticated copy thereof shall be so annexed; or
the names and addresses of all persons alleged to be able to prove its contents shall be stated in the application;
if it was oral, the names and addresses of all alleged witnesses shall be stated in the application.
No omission of any information from an application shall affect the power of the court to entertain the application.
Any person who, in an application for representation, wilfully or recklessly makes a statement which is false in any material particular shall 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.
A court may -
where a deceased person is proved (whether by production of a will or an authenticated copy thereof or by oral evidence of its contents) to have left a valid will, grant, in respect of all property to which such will applies, either -
probate of the will to one or more of the executors named therein; or
if there is no proving executor, letters of administration with the will annexed; and
if and so far as there may be intestacy, etters of administration in respect of the intestate estate.
[Act No. 21 of 1990, Sch.]
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.
No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property, unless and until the grant has been confirmed as provided by section 71.
The restriction on distribution under subsection (1) does not apply to the distribution or application before the grant of representation is confirmed of any income arising from the estate and received after the date of death whether the income arises in respect of a period wholly or partly before or after the date of death. [Act No. 8 of 1976, s. 11, Act No. 18 of 1986, Sch.]
No grant of representation shall be made -
to any person who is a minor, or of unsound mind, or bankrupt; or
to more than four persons in respect of the same property.
No grant of letters of administration, with or without the will annexed, shall be made to a body corporate other than the Public Trustee or a trust corporation.
No grant of representation shall be made to a syndic or nominee on behalf of a body corporate: Provided that, where a body corporate applies for a grant of probate or (in the case of a trust corporation) letters of administration, the application may be signed, and any necessary affidavits may be sworn, by an officer authorized in that behalf by the body corporate or the directors or governing body thereof.
Where a continuing trust arises -
no grant of letters of administration in respect of an intestate estate shall be made to one person alone except where that person is the Public Trustee or a Trust Corporation.
no grant of letters of administration with the will annexed shall be made to one person alone except where-
that person is the Public Trustee or a Trust Corporation; or
in the will the testator has appointed one or more trustees for the continuing trust who are willing and able to act.
Where an application for a grant of letters of administration in respect of an intestate estate is made by one person alone and a continuing trust arises the court shall, subject to section 66, appoint as administrators the applicant and not less than one or more than three persons as proposed by the applicant which failing as chosen by the court of its own motion. [Act No. 8 of 1976, s. 12, Act No. 18 of 1986, Sch.]
Any person who has been appointed by a will as an executor thereof may, either by oral declaration before the court or by writing under his hand, renounce executorship, and shall thereafter be finally precluded from applying for grant of probate of that will.
When several executors are appointed, probate may be granted to them all simultaneously, or at different times.
If a codicil is discovered after the grant of probate, a separate probate of that codicil may be granted to the executor, if it in no way repeals the appointment of executors made by the will.
If different executors are appointed by the codicil, the probate of the will shall be revoked, and a new probate granted of the will and the codicil together.
When a person who has been appointed by a will as an executor thereof has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, calling upon the executor to renounce his executorship or apply for a grant of probate of the will: Provided that -
when one or more of several executors have proved a will, the court may, on the death of the survivor of those who have proved, grant letters of administration without citing those who have not proved; and
there may be such limited grants of letters of administration in accordance with the provisions of section 54 of this Act as may, in the opinion of the court, be necessitated by any special circumstances.
When a deceased has made a will, but-
he has not appointed an executor; or
the only executors appointed are legally incapable of acting, or have renounced their executorship, or have died before the testator or before receiving a grant of probate of the will, or have failed within the time limited by a citation to apply for probate thereof; or
all proving executors have died before completing administration of all the property to which the will applies,
a universal or residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered.
When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administered, his representative shall have the same right to administration with the will annexed as the residuary legatee.
When there is no executor, and no residuary legatee or representative of the residuary legatee, or if every such person declines or is incapable of acting, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, or the Public Trustee, or any other legatee having a beneficial interest, or a creditor, may be admitted to prove the will, and letters of administration may be granted to him or them accordingly. [Act No. 8 of 1976, s. 13.]
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference -
surviving spouse or spouses, with or without association of other beneficiaries;
other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
the Public Trustee; and
creditors:
Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will. [Act No. 8 of 1976, s. 14.]
No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired.
A notice under subsection(1) shall be exhibited conspicuously in the court-house, and also published in such other manner as the court directs.
Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by such notice as aforesaid, or such longer period as the court may allow.
Where notice of objection has been lodged under sub-section (1), the court shall give notice to the objector to file an answer to the application and a cross-application within a specified period.
Where a notice of objection has been lodged under subsection (1) of section 68, but no answer but no cross-application has been filed as required under subsection (2) of that section, a grant may be made in accordance with the original application.
Where an answer and a cross-application have been filed under subsection (2) of section 68, the court shall proceed to determine the dispute. [L.N. No.256 of 1976, Sch., Act No.16 of 1977, Sch.]
Whether or not there is a dispute as to the grant, every court shall have power, before making a grant of representation-
examine any applicant on oath or affirmation; or
call for further evidence as to the due execution or contents of the will or some other will, the making of an oral will, the rights of dependants and of persons claiming interests on intestacy, or any other matter which appears to require further investigation before a grant is made; or
issue a special citation to any person appearing to have reason to object to the application.
After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.
Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may-
if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or
if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 inclusive, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; or
order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; or
postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case:
Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.
Where a continuing trust arises and there is only one surviving administrator, if the court confirms the grant, it shall, subject to section 66, appoint as administrators jointly with the surviving administrator not less than one or more than three persons as proposed by the surviving administrator which failing as chosen by the court of its own motion.
The court may, on the application of the holder of a grant of representation, direct that such grant be confirmed before the expiration of six months from the date of the grant if it is satisfied-
that there is no dependant, as defined by section 29, of the deceased or that the only dependants are of full age and consent to the application;
that it would be expedient in all the circumstances of the case so to direct.
Notwithstanding the provisions of this section and sections 72 and 73, where an applicant files, at the same time as the petition, summons for the immediate issue of a confirmed grant of representation the court may, if it is satisfied that-
there is no dependant, as defined by section 29, of the deceased other than the petitioner;
no estate duty is payable in respect of the estate; and
it is just and equitable in all circumstances of the case,
immediately issue a confirmed grant of representation. [Act No. 19 of 1984, Sch., Act No. 18 of 1986, Sch.]
No grant of representation shall be confirmed until the court-
is satisfied that no application under Part III of this Act is pending; and
has received a certificate from the Estate Duty Commissioner that he is satisfied that all estate duty payable in respect of the estate concerned has been or will be paid, or that no estate duty is payable in respect thereof; or
is itself satisfied that no estate duty is payable in respect of the estate concerned.
The court shall, within one year from the date of any grant of representation, give notice to the holder of the grant to apply for confirmation thereof.
Errors in names and descriptions, or in setting out the time and place of the deceased's death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.
If, after the grant of letters of administration with the will annexed or after confirmation thereof, a codicil be discovered, it may be added to the grant on due proof and identification, and the grant altered and amended accordingly.
If, after confirmation of the grant of letters of administration at any time there is a continuing trust and only one surviving administrator, that administrator shall without delay apply to the court to appoint, subject to section 66, as administrators jointly with him not less than one or more than three persons as proposed by him, which failing as chosen by the court of its own motion.
If a sole surviving administrator fails to apply to the court in accordance with subsection (1) within three months of there being a continuing trust and only one surviving administrator, on the application of any interested party in, or a creditor or debtor of the estate or of its own motion, the court may appoint additional administrators in accordance with subsection (1). [Act No. 18 of 1986, Sch.]
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-
that the proceedings to obtain the grant were defective in substance;
that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
that the person to whom the grant was made has failed, after due notice and without reasonable cause either-
to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
to proceed diligently with the administration of the estate; or
to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
that the grant has become useless and inoperative through subsequent circumstances.
Where a court or other authority, having jurisdiction in matters of probate or administration in any Commonwealth country or in any other foreign country designated by the Attorney-General by notice in the Gazette, has, either before or after the commencement of this Act, granted probate or letters of administration, or an equivalent thereof in respect of the estate of a deceased person, such grant may, on being produced to, and a copy thereof deposited with the High Court, be sealed with the seal of that court, and thereupon shall be of like force and effect, and have the same operation in Kenya, as if granted and confirmed by that court.
Before sealing a grant under subsection (1), the High Court-
shall satisfy itself as to the payment of estate duty as provided by section 72;
may require such evidence if any as it thinks fit concerning the domicile of the deceased person;
may, on the application of any creditor of the estate, require that adequate security be given for the payment of debts due from the estate to creditors residing in Kenya.
For the purposes of this Act, a duplicate of any grant sealed with the seal of a court or other authority in a Commonwealth or foreign country, or a copy thereof certified as correct by, or duly on behalf of, that court or authority, shall have the same effect as the original.
The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative. [Act No. 8 of 1976, s. 15.]
A grant of probate shall establish the will as from the date of death, and shall render valid all intermediate acts of the executor or executors to whom the grant is made consistent with his or their duties as such.
A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of such grant.
Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them: Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of such trust until the court has made a further grant to one or more persons jointly with him.
Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers-
to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;
to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:
Provided that-
any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and
no immovable property shall be sold before confirmation of the grant;
to assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;
to appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or any other interest or share in his estate, whether or not the subject of a continuing trust, as to them may seem just and reasonable to them according to the respective rights of the persons interested in the estate of the deceased, and for that purpose to ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate, and to make any transfer which may be requisite for giving effect to such appropriation:
Provided that, except so far as otherwise expressly provided by any will-
no appropriation shall be made so as to affect adversely any specific legacy;
no appropriation shall be made for the benefit of a person absolutely and beneficially entitled in possession without his consent, nor for the purpose of a continuing trust without the consent of either the trustees thereof (not being the personal representatives themselves) or the person for the time being entitled to the income thereof, unless the person whose consent is so required is a minor or of unsound mind, in which case consent on his behalf by his parent or guardian (if any) or by the manager of his estate (if any) or by the court shall be required.
Personal representatives shall have the following duties-
to provide and pay, out of the estate of the deceased, the expenses of a reasonable funeral for him;
to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;
to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any);
to ascertain and pay, out of the estate of the deceased, all his debts;
within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;
subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;
within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration.
to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;
to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.
[Act No. 18 of 1986, Sch.]
Where the administration of the estate of a deceased person involves any continuing trusts, whether by way of life interest or for minor beneficiaries or otherwise, the personal representatives shall, unless other trustees have been appointed by a will for the purpose of the trust, be the trustees thereof: Provided that, where valid polygamous marriages of the deceased person have resulted in the creation of more than one house, the court may at the time of confirmation of the grant, appoint separate trustees of the property passing to each or any of those houses as provided by section 40.
The assent of the executor shall be necessary to complete the title of the legatee to a specific legacy.
Such assent may be verbal, and either express or implied from the conduct of the executor, and shall be sufficient to divest his interest as executor therein, and (subject to any registration required by any other written law) to transfer the subject of the bequest to the legatee.
When the executor is a legatee, his assent to his own specific legacy shall be necessary to complete his title thereto as legatee.
The assent of the executor to a specific legacy shall give effect thereto from the death of the testator.
Debts of every description enforceable at law and owed by or out of an estate shall be paid before any legacy.
If an estate is subject to any contingent liabilities, a personal representative shall not be bound to pay any legacy without a sufficient indemnity to meet the liabilities whenever they may become due.
Legacies shall abate and be refunded according to the provisions of the Sixth Schedule.
Repealed by Act No. 19 of 2015, s. 24.
Personal representatives shall invest funds to provide for legacies in the manner and according to the provisions set out in the Seventh Schedule to this Act; and legacies shall carry interest in accordance with those provisions.
Where a person not having his domicil in Kenya has died leaving assets both in Kenya and in the country in which he had his domicil at the time of his death, and there has been a grant of representation in Kenya with respect to the assets there, and a grant of representation in the country of domicil with respect to the assets in that country, the personal representatives in Kenya, after having given such notices as are required by paragraph 5 of the Sixth Schedule and after having discharged, at the expiration of the time therein named, such lawful claims as have come to their notice, may, instead of themselves distributing any surplus or residue of the deceased's property to persons residing out of Kenya who are entitled thereto, transfer, with the consent of the personal representatives in the country of domicil, the surplus or residue to those personal representatives for distribution to those persons.
Every person making or permitting to be made any payment or disposition in good faith under a grant of representation shall be indemnified and protected in so doing, notwithstanding any defects or circumstances whatsoever affecting the validity of the grant.
Where a grant of representation is revoked or varied, payments and dispositions made in good faith to a personal representative under that grant before the revocation or variation thereof shall be a valid discharge to the person making the same, and a personal representative who has acted under the revoked or varied grant may retain and reimburse himself in respect of any other person to whom representation is afterwards granted might have properly made: Provided that a personal representative who so acted shall account for all payments, dispositions, retentions or reimbursements made by him to the person or person to whom representation is afterwards granted.
All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act, by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.
A transfer of immovable property by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts, liabilities, funeral and testamentary or administration expenses, duties, and legacies of the deceased have not been discharged nor provided for.
When a personal representative neglects to get in any asset forming part of the estate in respect of which re-presentation has been granted to him, or misapplies any such asset, or subjects it to loss or damage, he shall, whether or not also guilty of an offence on that account, be liable to make good any loss or damage so occasioned.
Any personal representative who, as regards the estate in respect of which representation has been granted to him-
wilfully or recklessly neglects to get in any asset forming part of the estate, misapplies any such asset, or subjects any such asset to loss or damage; or
wilfully fails to produce to the court any such inventory or account as is required by the provisions of paragraphs (e) and (g) of section 83; or
wilfully or recklessly produces any such inventory or account which is false in any material particular; or
knowing or having reason to believe that the estate will prove to be insolvent, continues to administer it without petitioning for administration thereof in bankruptcy,
shall be guilty of an offence, and shall be liable to a fine not exceeding ten thousand shillings, or to imprisonment for a term not exceeding one year, or to both such fine and imprisonment.
Any personal representative who, as regards the estate in respect of which representation has been granted to him if at any time there is a continuing trust and he is the sole surviving administrator, wilfully fails to apply to the court within three months in accordance with section 75A for the appointment of further administrators shall be guilty of an offence and shall be liable to a fine not exceeding five thousand shillings. [Act No. 18 of 1986, Sch.]
Notwithstanding any other provision of this Act, a person who, while sane, murders another person shall not be entitled directly or indirectly to any share in the estate of the murdered person, and the persons beneficially entitled to shares in the estate of the murdered person shall be ascertained as though the murderer had died immediately before the murdered person.
For the purpose of this section the conviction of a person in criminal proceedings of the crime of murder shall be sufficient evidence of the fact that the person so convicted committed the murder. [L.N. No. 256 of 1976, Sch.]
The Rules Committee may make rules of procedure generally for the carrying out of the purposes and provisions of this Act, and without prejudice to the foregoing generality, any such rules of procedure may prescribe-
the procedure to be followed by a court in determining applications under section 26 or subsection (3) of section 35;
the procedure to be followed by a court in granting probate or letters of administration;
the procedure to be followed in the case of a dispute as to a grant;
the form and manner in which applications under section 26 and subsection (3) of section 35 and applications for grants are to be made, grants are to be issued, grants are to be limited, notices are to be given, or inventories or accounts are to be produced;
the fees to be paid on any application or grant, or on any other procedure related thereto.
All proceedings commenced under any written law or part thereof repealed by this Act shall, so far as practicable, be continued under this Act.
The laws set out in the Eighth Schedule are repealed.
The Acts set out in the first column of the Ninth Schedule are amended, in relation to the provisions thereof specified in the second column of that Schedule, in the manner specified in relation thereto in the third column of that Schedule.
Except as otherwise expressly provided in this Act, nothing therein shall affect the provisions of-
the Trustee Act (Cap. 167);
the Public Trustee Act (Cap. 168);
the Trusts of Land Act (Cap. 290);
sections 218 to 222 of the Armed Forces Act (Cap. 199) concerning estates of deceased soldiers.