AN INSIGHT ON THE RULES AND THE RATIONALE FOR ESTATE DISTRIBUTION IN KENYA.

INTESTATE SUCCESSION:AN INSIGHT ON THE RULES AND THE RATIONALE FOR ESTATE DISTRIBUTION IN KENYA.

In Kenya, property of the deceased person passes to beneficiaries either through a will (testate) or without a will (intestate). The distribution of the estate of the deceased person to beneficiaries and heirs is regulated by the Law of Succession Act, Cap 160, Laws of Kenya (“the Act”) and the Probate and Administration Rules (“the Rules “).

The Act provides guidelines on intestate distribution of the deceased person’s assets as follows;

1. Where the deceased person leaves behind one surviving spouse and a Child or Children

The surviving spouse is entitled to the personal and household effects of the deceased absolutely, 20% of the residue of the estate of the deceased and a life interest in the remaining estate. In essence, the surviving spouse can only use and benefit from the deceased’s estate in their life time. In instances of their demise, the property passes to the children of the deceased. If in any case the surviving spouse remarries, the life interest lapses.

During the continuation of this life interest, the surviving spouse has the power to gift the surviving child or children. In the event that a child is dissatisfied with how the surviving spouse has exercised their power of appointment of their share of the Estate or they have withheld their share, they can apply to the court for remedies.

In such circumstances, the Court will consider factors such as the nature and amount of the deceased’s property, the financial means and needs of both the applicant and the surviving spouse, any past gifts from the deceased to the applicant, the conduct of the applicant towards the deceased and surviving spouse, and the circumstances of other beneficiaries.

2. Where the deceased person leaves behind no surviving spouse but One Child or Children

The property of the deceased person will devolve around the surviving spouse if one child is left behind. In cases where the is more than one child the estate shall be distributed to them in equal share.

3. Where the deceased leaves behind one surviving spouse but no children

In such a situation, the surviving spouse is entitled out of the net intestate estate to the personal and household effects of the deceased absolutely, the first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater. If in any case the surviving spouse decides to remarry such life interest shall be determined and the property subject to the life interest shall devolve in the degree of consanguinity expounded in section 39 of the Act.

4. Where the deceased was polygamous.

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. In Re Estate of Welsa Bange Oganda Ayoo alias Welsa Bange Oganda (Deceased) (Succession Cause E081 of 2022) [2024] KEHC 2464 (KLR) (7 March 2024) (Ruling) the Honorable Judge stated that ‘’Further, and for clarity, the law, as I understand it, in regard to polygamous marriages is that the properties of the deceased are divided to each house on accordance with the formula given on section 40 of the Act. Thereafter, the widow has a life interest in the net estate of the deceased due to her household.’’

5. Where the deceased 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 starting with the father, mother, brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares, 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

In breathing life to Article 45 of the Constitution of Kenya, the Law of Succession Act establishes rules governing intestacy that are designed to protect the interests of all rightful beneficiaries and ensure a fair distribution of the deceased property.

Authors: Wesley Muriuki

               Paul Musyoka Monicah

E-mail: musyoka@knjenga.co.ke & wesley@knjenga.co.ke

Disclaimer

This article is for informational purposes only and should not be construed as legal advice.

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