The Law applying to Africans
The 1897 Order-in-Council provided under article 52 that African customary law was to apply to Africans as long as it was not repugnant to justice or morality. Matters of succession were therefore to be governed by African customary law. The above legislation did not, however, provide for the law applicable to the so called ‘westernized’ Africans who had converted to Christianity, got western way of life, seeking to divorce themselves from the operation of African customary law. Such converts felt that western law should govern their personal matters such as marriage and succession.
An attempt to address the problem presented by these Africans was made through the passing of the 1897 Native Courts Regulations, Article 64 of which provided that the African Christians were governed by the law that governed Indian Christians. Interestingly, the regulations did not say what law this was i.e. whether it was the Indian law of succession or the English Law of succession since both of these two laws applied to Christians in India. The position was clarified in 1902 with the passing of the African Christian Marriage and Divorce Ordinance, section 39 of which provided that the English law of succession would apply to Christian Africans because after contracting a statutory marriage, the African was presumed to have discarded the African way of life and thereby ceased being governed by African customary law.
The ‘up-grading’ of the African by the above legislation was short lived for in 1904, the Native Christian Marriage and Divorce Act Order No. 9 was passed, providing that the African customary law of succession applied to all Africans irrespective of their religion. The argument being that land tenure is still communal and since the Act envisaged individual land ownership it cannot apply in such places. The matter of these Africans with regard to the applicable personal law came up for judicial determination in the case of Benjawa Jembe vs. Priscilla Nyondo 4 EALR 160 (1912) where Barth J held that succession of a native Christian’s estate followed the law of the tribe to which such Christian native belonged. The judge said: “The fact that the deceased married a wife according to the rules of the Anglican Church does not affect the succession to his property. Such succession must be regulated by native law or custom”
This remained the position until 1961 when the African Wills Ordinance was passed to enable the Africans to make written wills. Testate succession became subject to this statute while intestate succession continued being governed by the respective customary law of the deceased. The African Wills Act originated from the recommendations made by one Dr. Arthur Phillips in his Report on Native Tribunals. In the chapter dealing with succession, Phillips underscored the then urgent need to provide the African with suitable legal machinery through which he could dispose of his modern property, which may not be adequately disposed of under customary law. He argued that colonialism had brought with it new forms of market economy and property ownership modes which were unknown to African customary law and which that law could not be adjusted to deal with e.g. shares in companies, insurance policies, premium bonds, bank accounts etc. He recommended that a law similar to the English Inheritance (Family Provisions) Act of 1938 be passed to enable the westernized African to deal with such property.
Most of the above provisions were incorporated in the 1961 Act that remained in force until 1981 when it was repealed upon the coming into operation of the LSA. Intestate succession continued being governed by African customary law provided it was not inconsistent with justice, morality, and the statutes of general application e.g. the Probate and Administration of Estates Act of 1898 as in Re Maangi (1968) E.A 337. In the 1960’s the High Court held that even where Africans died intestate, customary law could be avoided if it was inconsistent with justice and morality. In Re Kibiego (1977) E.A 129 an estate was contested between deceased’s widows and his brothers. The brothers said women had no right in administration of estate. It was held that customary law denying women rights to administer the property of the deceased husband was repugnant to justice and morality and found that the Probate and Administration Act was to apply.
The Law applying to Muslims
There was no specific mention of the Muslims in the 1897 Order in Council and it was assumed that reference to ‘natives’ also included the Muslims. The problem was that many Muslims were Arabs who did not consider themselves as ‘natives’. The position was clarified in the 1897 Native Courts Regulations Ordinance. Article 57 of this ordinance provided that the law of succession for Muslims was the law contained in the Quran. These regulations were re-enacted in the 1907 Native Courts Ordinance, which established the liwali courts. These had jurisdiction to hear and determine matters arising out of Islamic law, including succession.
This remained the position until independence when the government reaffirmed the position to the Muslims as part of a constitutional bargain to counter their threat to break away or secede from the rest of Kenya. The government assured them that under the new constitutional order, they would be allowed to keep their own personal law. This guarantee was given constitutional backing by section 66 of the Constitution, which provided for the establishment of the Kadhi’s courts. These courts were mandated to decide matters arising out of Islamic law where such matters related to personal law.
That remained the position until 1981 when the Law of Succession Act became operational. This Act repealed all the then existing laws on succession and became applicable to all persons domiciled in Kenya regardless of their religion. Section 99 of the Act repealed, among other laws, the Mohammedan Marriage, Divorce and Succession Act (Cap.156) section 4 that dealt with succession. Note: Not the whole Act was repealed, only sec. 4 which dealt with succession.
Between 1981 and 1990, there was intense agitation by the Muslims who regarded the government’s act of passing the Law of Succession Act as a repudiation of the assurance given at independence. Their case was that the Quran or a statute embodying the provisions of the Quran must govern matters of personal law for Muslims. They sought to be exempted from the LSA which conflicted with the Koranic principles e.g.
~ S 5 of the LSA on Freedom of Testation i.e. discretion of Testator to dispose off property as one wishes to persons he wishes. No obligation to provide for dependants BUT under Islam, only 1/3 of the Muslim’s estate can be disposed off by will. 2/3 should be dealt with according to Koranic principles i.e. shares were fixed for particular heirs.
~ S 3(2), which defines children, and S 29, which defines dependants, were contentious. S 3(2) defines a child to include adopted and illegitimate children. Also S 29 includes adopted and illegitimate children, also step children BUT under Islam, stepchildren have no right of inheritance from their deceased father. They can only inherit through their mothers. Illegitimate children cannot inherit through their biological fathers.
The government gave in to the pressure mounted by the Muslims in 1990 when government keen to have the Muslim support in view of the clamour for multi-partyism and the Law of Succession Act was amended by Statute Law (Misc. Amendment) Act No. 2 of 1990, which disapplied the Act to persons who, at the time of their death were Muslims. Instead, Islamic law as contained in the Quran would govern such persons and it introduced S 2(3) and (4) & S 48(2)
S 2(3) disapplies the substantive provisions of the Act to the estate of a deceased Muslim (both testate and intestate). The estate of a deceased Muslim is exclusively subject to Muslim law. S 2(4) applies the procedural aspects of the Act, i.e. the provisions relating to the administration of the estate of a deceased Muslim as long as the provisions are not inconsistent with Islamic law.
S 48(2) confers the Kadhi’s Court with jurisdiction to determine questions relating to succession in accordance with Islamic law. In effect, S 5 of the LSA no longer applied to Islam BUT the act applies with respect to management of the estate i.e. a Muslim can take out letters of administration.
The Law applying to Hindus
The 1897 Order-In-Council was silent on which law applied to the estate of deceased Hindus. Order No. 22 of 1898 that applied to Kenya the Hindu Wills Act that was a mere adaptation of the 1865 Indian Succession Act clarified the position. The Hindu Wills Act was applied to Kenya to provide for testate succession for the Hindus living in Kenya. With regard to intestate succession, no law had been specified as being applicable to the Kenyan Hindus. The Hindu customary law that governed the subject until 1946 automatically filled this vacuum.
In 1946 the Hindu Marriage, Divorce and Succession Ordinance No. 43 was passed. Its effect was to confirm the matters of intestate succession for the Kenyan Hindus were to be governed by the Hindu customary law. The 1946 legislation applied to those Hindus who had died domiciled in Kenya but was silent on what law applied to those who died in Kenya but domiciled elsewhere. Another restriction in the scope of the ordinance was that it only applied to the Hindus whose marriages had been contracted in the colony as in Bessan Kaur v. Rattan Singh 25 KLR 24. In 1961, the 1946 ordinance was amended by being split into two statutes - the Hindu Succession Ordinance and the Hindu Marriage and Divorce Ordinance.
The Hindu Succession Ordinance provided for intestate succession while the Hindu Wills Act provided in testate succession. These two statutes remained in force until 1981 when the LSA repealed them making Hindus in Kenya exclusively subject to LSA.
The Law applying to the Europeans
Article 11 (b) of the 1897 Order in Council provided that for the European settlers in Kenya, the law to govern the succession to their estates was the Indian Succession Act, 1865. This statute was primarily passed in India to govern succession matters for British settlers in India. It provided for both testate and intestate succession and dealt with substantive matters. It also introduced the Probate Administration Act in Kenya. The 1865 Act reflected the position of succession laws in England at that time. It provided for both testate and intestate succession. The Act was amended several times in Kenya. The first such amendment was through Order No. 12 of 1932 that repealed section 105 of the Act restricting testamentary freedom but this was re-amended. A testator was then enabled to leave his estate to whomever he felt like without limitation on time.
The other major amendment to the 1865 Act was through Order No. 48 of 1956, which resulted in the present day Law Reform Act Cap 26. With respect to succession, this amendment provided that where a person died leaving a cause of action in existence at the time of his death, the cause of action survived his death and could proceed against or on behalf of his estate.
THE LAW OF SUCCESSION APPLYING IN KENYA SINCE 1981
Until 1st July 1981, there were four systems of law of succession in Kenya applying to the four different socio-ethnic groups of people in Kenya. The Law of Succession Act was passed with the intention of merging and consolidating all the four systems of law of succession and their support legislation into one comprehensive statute in order to give the country a uniform law of succession applicable to all sections of the Kenyan population.
The Law of Succession Act came about because of a report compiled by a commission appointed by the late President Kenyatta in 1967, to look into the problems concerning the succession regime in Kenya. The purpose and scope of the Act is stated in its preamble. It is an Act of parliament to define and consolidate the law relating to intestate and testamentary succession and the administration of estates of persons and for connected purposes.
S 2(1) of the Act states that the Act constitutes 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 the Act. S 2(1) however also allows for application of other laws (Except as otherwise expressly provided in this Act or any other written law)
S 99 of the Act repeals all the then existing statutes on the law of succession and these are listed in the 8th schedules. They are as follows:-
a) the Indian Succession Act of India 1865.
b) the Hindu Wills Act of India, 1870.
c) the Probate and Administration Act,1888.
d) the Hindu Succession Act.
e) the African Wills Act, 1961.
f) the Administration of Estates by Corporations Act.
g) the Commonwealth Probate Act.
h) the Colonial Probate Act, 1892.
Section 100 provides for the amendment of the other existing statutes, among them being the Mohammedan Marriage, Divorce and Succession Act, which was harmonized with the LSA by the deletion of its S 4, which dealt with matters of succession.
With respect to African customary law, the Act allows its application in sections 2(2), 5(1) and 33. S 2(2) applies customary law to persons dying before commencement of the Act i.e. before 1981. Applicable law is the law that was in force at the time of death.
S 5(1) allows a testator to dispose of his property by reference to any secular or religious law. This would allow the testator to provide that his estate should devolve in accordance with a particular law in which event the requirements of that customary law will be determined. This is a general law and the testator has not specifically divided his property but directs an administrator to do so. S 32 exempts certain classes of property from intestacy provisions of the Act e.g. agricultural land, crops on such land and livestock as per gazette notice specified by the Minister. The following areas were specified by the gazette notice No.94/1981 Marsabit, Narok, Tana River, Samburu, West Pokot, Turkana, Isiolo, Mandera, Wajir and Kajiado The property listed in those areas was exempted from the intestacy provisions pursuant to S 32 where the property owners died intestate. S 32 only covers land in the designated areas. S 33 applies customary law to such property. The administration of such estates does not fall under LSA. Since S 44(1) of the Act provides that part 7 of the Act does not apply to the intestate estate subject to S32 of the Act. Such estates are to be administered in accordance with the provisions of the Magistrates Courts Act (Cap 10). S 5& 9 of this Act give power to the court to exercise jurisdiction in proceedings of a civil nature where the proceedings are of a claim under customary law. S 2 of this Act defines a claim under customary law to include a claim concerning intestate succession and a claim for administration of intestate estates.
Sections 32 and 33 do not provide a blanket exemption covering all African intestates. However, the CA has interpreted sections 32 and 33 to mean that all Africans intestates are exempt from the intestacy provisions of the LSA. In Mwathi vs. Mwathi and another (1995-1998) 1 EA 229, the deceased died in 1987 and was unmarried. A brother (the appellant) and two sisters (the respondents) survived him. He hailed from Kiambu District. His will was declared invalid by the High Court, which ordered the estate to be shared equally between the appellant and the respondents in terms of Part V of the Act. The appellant aggrieved by the order appealed to the Court of Appeal, which upheld the High Court decision with respect to the invalidity of the will and confirmed that the appellant had died intestate. It, however, differed with the High Court by holding that the applicable law was customary law and not the intestacy provisions in Part V of the Act. A portion of the Court of Appeal judgement asserts- “….the intestate succession of a deceased Kikuyu is governed by the Kikuyu Customary Law. The asset involved is a piece of land and the matter must therefore be determined by Kikuyu Customary Law relating to land inheritance…..”
There is no basis at all in law for the CAs decision in Mwathi vs. Mwathi. The deceased died after the Act came into force and customary law was not applicable since it was excluded from operation by S 2(1) of the LSA, unless allowed by the minister through sections 32 and 33 of the LSA. Besides, the property in question was situate in Kiambu district, which is not one of the districts specified in Legal Notice No. 94 of 1981. It is regrettable that such an erroneous decision came from the highest court in the land. It is binding on the High Court and the subordinate co’urts: it has not been overruled to date.
The Court of Appeal’s decision in Mary Rono vs. Jane Rono and another Nairobi CACA No. 66 of 2002 is the first by that court where Ss 32 and 33 of the Act were correctly applied and interpreted. The land in dispute was situated in Uasin Gishu district in the Rift Valley province. The court found that section 2(1) LSA excludes the application of African customary law unless the Act makes provision for it. It does so under sections 32 and 33, but the exclusion is limited to property exempted for Part V of the Act by virtue of S 32. LN No. 94 of 1981 does not exclude property in Uasin Gishu district and therefore Keiyo customary law could not apply to the intestate of a resident of Uasin Gishu district.
Unfortunately, some of the male members of the High Court bench still apply customary law in determining questions of distribution of estates as between male and female children, in spite of the very clear provisions in sections 35 and 38 of the Act. In In the Matter of the Estate of Mutio Ikonyo (deceased) Machakos HCP&A No. 203 of 1996, the deceased had died in 1988, and the court held that a married daughter of the deceased was not entitled to a share of the estate. According to Mwera J the married daughter, being a Mkamba, ought to have known that under Kamba customary law only unmarried daughters or those divorced (and dowry returned) can claim to inherit. With respect, customary law is of no application at all; its application having been ousted by sections 2(1), 35 and 38 of the Act.
With respect to Islam, S 2(3) and 2(4) allows the application of Islamic law to the estate of a deceased Muslim i.e. it effectively disapplies the LSA to the estate of a Muslim. The only applicable provisions are those in Part 7 dealing with administration of the estate. In Chelang’a vs. Juma (2002) 1 KLR 339 (Etyang J) it was held that under Islamic law a non-Muslim cannot inherit the estate of Muslim. In that matter a daughter and siblings of the deceased Muslim, who confessed to be Christians, were excluded from benefit by reason of their being non-Muslims. It was, however, held that the mother of the deceased who was a non-Muslim was nevertheless entitled to a share of the estate under Islamic law as a dependant. It is, however, permissible for a Muslim to benefit a non-Muslim by will.
Other statutes apart from African customary law and Islam are applied to succession matters. S 101 refers to statutes in force before 1981 that are applicable:
- Trustee Act
- Public Trustee Act
- Trust of Land Act Cap 290
- S.218 – 222 Armed Forces Act Cap 199
The Trustees Act deals with powers and duties of a Trustee. The Personal representative defined in the LSA includes a Trustee. Part 7 of the LSA deals with the powers and duties of personal representatives i.e. S 82 & 83 of the LSA. These provisions are not exhaustive because there are other provisions that deal with these duties extensively. A personal representative exercises powers under Cap 160 and 167 and therefore should read the LSA in conjunction with the Trustees Act. So where the LSA is silent on a matter, The Trustees Act will apply e.g. Cap 160 does not deal with investments of funds as extensively as Cap 167.
The Public Trustee Act on the other hand deals with the administration of estates by the Public Trustee. The Public Trustee is an office in the AG’s office to deal with administration of estates. The Public Trustee acts as a personal representative in cases where he has been appointed by the court as such OR where the deceased does not have relatives OR where no one has applied for administration of the estate, OR where the will does not appoint an Executor OR where the executor appointed under will is unwilling to act OR where the court feels that the appointed executor is not suitable.
The Public Trustee is usually appointed where a family cannot agree on who to apply to be administrator. Under this Act, the Public Trustee may apply for representation in respect of any estate brought to his attention e.g. traditionally he administers estates of deceased civil servants i.e. if government notifies the public trustee that they had the deceased civil servants terminal benefits and no grant of letters of administration has been taken out.
Trust of Land Act has similar provisions to the Trustee Act. It deals with powers and duties of a Trustee. It gives powers relating to investments and related matters.
Ss 218 – 222 of the Armed Forces Act deals with estates of deceased soldiers i.e. who is to be paid, how a soldier should make his will e.g. a will made by a soldier in the presence of one witness (instead of 2) who is an officer is a valid will.