An Act of Parliament to amend the Law of Succession Act.
| PROPOSED PROVISION FOR AMENDMENT | PROPOSED AMENDMENT | OUR COMMENTS |
|---|---|---|
| Clause 2 Amendment of section 3 of Cap 160 | Section 3 of the Law of Succession Act (“the principal Act”), is amended: a. in subsection (1) by inserting the following new definitions in their proper alphabetical sequence: “child” includes an adopted child and a child who is conceived during the lifetime of the deceased person and is subsequently born after the death of the deceased person. “intermeddling” means: i. taking possession of, disposing off, charging, receiving, distributing, leasing or using property of a deceased without authority under this Act or any other applicable law; ii. ejecting a surviving spouse or child from the matrimonial home; or iii. any unlawful dealing with the deceased person’s estate. “matrimonial home” means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home; and includes any other attached property. b. by deleting subsection (2); and c. by deleting subsection (3). | In NSA & another v Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another [2019] eKLR, the High Court at Kakamega declared sections 3(2) and 3(3) of the principal Act to be unconstitutional as they were inconsistent with article 53 (1) (e) of the Constitution. This proposal seeks to align the principal Act with the sentiments of the Court in the above case. |
For the definition of “intermeddling”, this clause seeks to provide clarity by expounding on the definition. Section 45 of the principal Act defined intermeddling as “taking possession or dispose of, or otherwise intermeddle…”. Section 45 has defined intermeddling using the same word. This proposal seeks to remove the ambiguity by providing a clear definition. Secondly, we propose the addition of the word “person” appearing immediately after the word “deceased”. |
||
| The definition of “matrimonial home” has been obtained from the Matrimonial Property Act No. 49 of 2013, and thus the proposal seeks to harmonize the two Acts. | ||
| Clauses 3 & 4 Repeal of sections 32 and 33 of Cap 160 | The principal Act is amended by repealing sections 32 and 33. | Sections 32 and 33 of the principal Act exclude certain areas of Kenya that are occupied predominantly by pastoralist communities from application of the Act, and that the succession of livestock, crops and agricultural land in the said areas is to be governed by the applicable customary law. In Ripples International v Attorney General & another; FIDA (Interested Party) [2022] eKLR, the Court declined to declare sections 32 and 33 of the principal Act as unconstitutional since no evidence had been provided to establish that customs of the communities in the areas listed in section 32 of the principal Act were discriminatory. Consequently, we do not see the need to repeal sections 32 and 33 as they were not declared unconstitutional by the above Court. |
| Clause 5 Amendment of section 35 of Cap 160 | Section 35 of the principal Act is amended: a. in subsection (1) by: i. inserting the words “subject to subsection (1A)” at the beginning of paragraph (b); and ii. deleting the proviso; and b. by inserting the following new subsections immediately after subsection (1): (1A) The interest of the surviving spouse under subsection(1)(b) shall determine upon remarriage. (1B) Notwithstanding subsection (1): a. where the surviving child is not a child of the surviving spouse: i. the surviving spouse shall be entitled to the personal and household effects of the deceased absolutely and a life interest in one-half of the whole residue of the net intestate estate; and ii. the surviving child shall be entitled to one-half of the whole residue of the net intestate estate which shall be held in accordance with section 41, and if there be more than one child they shall share equally. b. where the surviving children include a child who is not a child of the surviving spouse: i. the surviving spouse shall be entitled to the personal and household effects of the deceased absolutely; ii. the net intestate estate shall, in the first instance, be divided equally amongst the surviving spouse and all the surviving children; iii. the surviving spouse shall have a life interest in his or her share and that of his or her children under subsection (1B) (b)(ii); and iv. the share of the surviving child who is not a child of the surviving spouse under subsection (1B) (b)(ii) shall be held in accordance with section 41, and if there is more than one child they shall share equally. c. by deleting subsection (5) and substituting therefor the following new subsection: (5) Subject to the provisions of sections 41 and 42 and to any appointment or award made under this section, the whole residue of the net intestate estate shall, on the death or re-marriage of the surviving spouse, devolve upon the surviving child, if there is only one, or be equally divided among the surviving children. | In Ripples International v Attorney General & another; FIDA (Interested Party) [2022] eKLR, the Court declared section 35 (1) (b) of the Principal Act to be unconstitutional for failing to provide equal protection and benefit of the law to women as with the men. Consequently, section 35 (1) (b) of the principal Act contradicts article 27 of the Constitution. In the spirit of equality, this clause proposes that both the widow and widower should lose their life interest upon re-marrying. |
| Clause 6 Amendment of section 36 of Cap 160 | Section 36 of the principal Act is amended: a. in sub-section (1) by: i. inserting the words “subject to sub-section (1A)” at the beginning of paragraph (c); and ii. deleting the proviso. b. by inserting the following new subsection immediately after sub-section (1): (1A) The interest of a surviving spouse under subsection (1)(c) shall determine upon re-marriage. c. By deleting subsection (3) and substituting therefor the following new paragraph: Upon the determination of a life interest created under subsection (1), the property subject to that interest shall devolve in the following order of priority: a. father and mother in equal shares; or if either is dead; b. the surviving parent; c. brothers and sisters, and any child or children of the deceased’s brothers and sisters, in equal shares; d. half-brothers and half-sisters and any child or children of the deceased’s half-brothers and half-sisters, in equal shares; or e. the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares. | This amendment is as a result of the decision in Ripples International v Attorney General & another; FIDA (Interested Party) [2022] eKLR. The Court declared section 36 (1) (b) of the principal Act to be unconstitutional as it restricted a widow’s life interest when she re-married. On the other hand, no restriction applied to a widower who re-married. Consequently, both sections 35 (1) (b) and 36 (1) (b) of the Principal Act are restrictive on a woman’s right to inherit in equal measure and circumstances as the men. |
| Clause 7 Amendment of section 39 of Cap 160 | Section 39 of the principal Act is amended in subsection (1): a. by deleting paragraph (a) and substituting therefor the following new paragraph: (a). father and mother in equal share; or, if either is dead; b. by deleting paragraph (b) and substituting therefor the following new paragraph: (b) surviving parent; or if none; | This is a good proposal. It allows both parents to equally inherit the deceased person’s property. Currently, section 39 of the principal Act is discriminatory as it excludes the mother from inheriting the deceased’s property in the first instance i.e., the father inherited the deceased person’s property in the first instance. In Ripples International v Attorney General & another; FIDA (Interested Party) [2022] eKLR, Justice Edward Murithi of the Meru High Court declared section 39 (1) (a) and (b) of the Principal Act to be unconstitutional as it failed to give both the father and mother equal priority in inheritance of their deceased child’s property that died intestate and had no surviving wife or children. The second proposal means that if the deceased’s parent dies, the interest in the property will be transferred to the surviving parent. |
| Clause 8 Amendment of section 40 of Cap 160 | Section 40 of the principal Act be amended by inserting the following new subsection immediately after subsection (2): (3) Notwithstanding subsection (1), where any of the surviving children is not a child of any of the wives of the deceased, that child shall: a. be considered as an additional unit in determining the share of dependants in the net intestate estate under subsection (1); and b. the share of such child shall be held in accordance with section 41, and if there be more than one child, they shall share equally. | This clause seeks to consider the deceased’s children that were not sired by any of his wives as an additional unit. For example, an adopted child or a child that the deceased has taken into his family as his own. This is a good move as children not sired by the deceased’s wives were previously excluded from inheriting under the rules of intestacy. |