Intestacy occurs where: a person dies without having made a will or the person’s attempt to die testate fails upon the invalidation of his will or the person revokes his will and subsequently dies without having made another will (S 34 of the LSA).

Intestacy may be a total or partial. It is total where the intestate has left no valid will. It is partial where: a person fails to include all his property in his otherwise valid will or part of the will is declared invalid or a part of the will is revoked or a person acquires property subsequent to the making of the will that is not ambulatory. The property not covered by the will is governed by the intestacy provisions or is subject to intestate succession.

Provisions relating to intestacy are contained in Part V Ss 32 to 42 of the LSA.  The intestacy rules only benefit people who also have a direct blood link with the intestate that is apart from spouses.  It does not confer benefit on such categories as unmarried partners and parents-in-law.  To benefit such persons the deceased has to make a will.  In the absence of blood relatives, the estate passes to the state bona vacantia.

In the Matter of the Estate of Beatrice Amalemba the deceased had been predeceased by her husband and the dispute was between her mother and her father in law and brother in law. It was held that her mother by virtue of  blood relation was entitled to the estate and not the in-laws. To benefit persons outside the family circle you need to have a will.

Any one claiming to be a relative or a person beneficially entitled who considers that the rules of intestacy do not make reasonable provision for them may make a claim under the family provisions in section 26 of the Law of Succession Act, and the rules of intestacy may be varied by the court to make adequate provision for the person.

The rules of intestacy only apply to property that is capable of being disposed of by a will. They do not apply to joint property, which passes by survivorship, or to nominations, life policies written in trust, or the subject of a donatio mortis causa.

The Law of Succession Act makes provision for both monogamous and polygamous situations and the nature of devolution of the property upon intestacy dependants on whether the deceased was polygamous or monogamous. Ss 35 and 36 deal with the monogamous situations, S 40 covers the polygamous situation, while Ss 37 to 39 are general provisions applying to both.

Part V of the Act only applies to the estate of a person who dies after the Act came into force.

Exemption of Certain Property from the Intestacy Provisions
S 32 of the Act empowers the Minister to disapply by a notice in the official gazette, agricultural land and crops on such land or livestock in some areas from Part V of the Act. This power has been used once. The Minister (Attorney General) in 1981 exempted property by Legal Notice No. 94 of 1981 in the predominantly pastoral areas of Marsabit, Narok, Tana River, Samburu, West Pokot, Turkana, Isiolo, Mandera, Wajir and Kajiado from the intestacy provisions pursuant to section 32.

S 33 of the Act applies African customary law to the property excluded under S 32.  The administration of the Act falls under customary law by virtue of S 9 of the LSA

The rationale is that LSA contemplates a capitalist economy of individual ownership of property under which it is possible to determine the appropriate share of each individual. In the pre-dominantly pastoralist areas individual ownership of property is not recognized and succession to property is better left to the customary law of the people concerned.

Rights of a Surviving Spouse under Intestacy
This applies to both the widow and widower. For the purposes of intestacy, a surviving spouse includes a judicially separated spouse but excludes a divorced spouse. This applies to all legal marriages whether contracted under statute or customary law including woman-to-woman marriages (except Muslims). Under S 3(1) of the LSA a separated wife is considered a wife for succession purposes. The divorced spouse may make a claim under the family provisions in S 26 of the LSA for reasonable provision from the estate. The definition in S 29 of a dependant for the purpose of S 26 includes a former wife or former wives.             Intestacy covers a wife recognized under S 3(5) but not a cohabitee or a person claiming to be a wife under a presumption of marriage.

A spouse’s exact entitlement under the rules of intestacy depends on the closeness of any other surviving relatives of the intestate. One of three situations apply: the intestate leaves a spouse and issue, the intestate leaves a spouse and parent(s) or brother(s) and sister(s) of whole blood or the intestate leaves spouse but neither issue, nor parents, nor siblings of whole blood or other their issue, nor issue of their own surviving.

(a) Intestate leaves spouse and child or children
This is dealt with in sections 35 and 37 of the LSA. In such situations, the surviving spouse is entitled to the personal and household effects of the deceased absolutely and a life interest on the whole of the residue of the net intestate estate. Personal and household effects are defined in section 3(1) of the Act to mean clothing, articles of personal use, furniture, utensils, appliances, pictures, ornaments, food drink and all other articles of household use and decoration normally associated with a matrimonial home, but it does not include anything connected with the business or profession of the deceased. A surviving spouse includes a wife married under the customary law arrangement of woman-to -woman marriage.

Under this provision, the surviving spouse only gets the chattels absolutely, and is only entitled to a life interest on the rest. The ultimate destination of the property the subject of the life interest is to the children in the event of the demise of the surviving spouse (S 35(5) and In the Matter of the Estate of Gathima Chege (deceased) Nairobi HCSC No. 1955 of 1996

A proviso to S 35(1) states that if the surviving spouse is a widow the life interest determines upon her remarriage. In In the Matter of the Estate of Charles Muigai Ndung’u (deceased) of Karinde Kiambu District Nairobi HCP&A 2398 of 2002 (Koome J), the woman who had been cohabiting with the deceased was held by the court to be a wife arising from a prolonged cohabitation. The court, however, found that she was not entitled to a life interest as she remarried after the demise of the deceased, but her child with the deceased was found to be the sole heir to the estate of the deceased. This provision does not apply to widowers and is thus discriminatory.

S 37 allows the surviving spouse during life interest, subject to the consent of all the co-trustees and all the adult children or the consent of the court, to sell any of the property the subject of the life interest for their own maintenance. Where the subject property is immovable, the consent of the court is mandatory.

The surviving spouse holds the property during life interest as a trustee and stands in a fiduciary position with relation to the property. The property does not pass to the surviving spouse absolutely. Where the property in issue is land, it cannot be registered in the name of the surviving spouse absolutely since she only enjoys a life interest and holds the same in trust for the children and other heirs (In the Matter of the Estate of Basen Chepkwony (deceased) Nairobi HCSC No. 842 of 1991 (Koome J).

(b) Intestate leaving spouse and no children of their own
Under S 36 where the intestate has left one surviving spouse but no child or children, the surviving spouse is entitled out of the net intestate estate to: the personal and household effects of the deceased absolutely, the first Kshs.10, 000.00 out of the residue of the net intestate estate or 20% of the residue of the net intestate which ever is greater, and a life interest in the whole of the remainder. The life interest is lost upon the re-marriage of surviving spouse. S 36(2) gives the minister discretion to alter or vary the amount of Kshs.10, 000.00 in S 36(1)(b).  This discretion has not been exercised so far, although the figure of Kshs. 10,000.00 was fixed in 1972. The variation of the amount is long overdue given the prevailing economic circumstances.

The provision is silent on what becomes of the rest of the property that is the remaining 80% and the final destination of the property the subject of the life interest in the event of the termination of the life interest. The assumption is that the property devolves upon the other surviving relatives of the deceased as set out in S 39 of the Act; (Willingstone Muchigi Kimari vs. Rahab Wanjiru Mugo Nairobi CACA No. 168 of 1990

Rights of Children
The children of the deceased are the next category of next of kin of an intestate to benefit from an estate after any surviving spouse. Where the intestate leaves a surviving spouse, the children are not entitled absolutely to property, but the surviving spouse holds the estate in trust for the children. S 35(5) deals with what should happen in the event of the death of the surviving spouse or the re-marriage of the widow.  The whole residue of the net intestate estate, that is the portion subject to the life interest, devolves upon the surviving child, or if more than one, to the children. 

Under S 35(2), a surviving spouse has the power of appointment, that is the power to dispose of the capital of the intestate by way of gift taking effect immediately among the surviving child or children.  The power cannot be exercised by way of will or to take effect at a future date. S 35(3) (4) allows a child aggrieved by the exercise of the power of appointment to move the court for appropriate orders.

It would appear that the division of the property between the children should be in equal shares. In the Matter of the Estate of Kinyuru Karanja (deceased), Waweru J held that a proposal by a woman to share out the estate of her deceased husband among their sons in a manner which would have resulted in one of them getting a larger share was wrong. He directed that the estate be divided equally between the sons.  Omolo JA in Mary Rono vs. Jane Rono and another Eldoret CACA No. 66 of 2002, where he expressed the opinion that section 40 does not provide that each child must receive the same or equal portion. In his opinion, this would work an injustice, particularly in the case of a young child who is still to be maintained, educated and generally seen through life.

Where the intestate has left a surviving child or children but no spouse S 38 applies.  The net intestate estate devolves upon the child or children.  In Dorcas Njeri Kithuku the deceased was survived by one child, a married daughter. It was held that as the sole survivor, she was entitled to the estate under S 38. The deceased was her mother, a wife in polygamous situation. The stepkids of the deceased had applied and obtained the grant claiming their step-sister had no claim. Held: Step-sons of the deceased had no superior claim to that of the deceased’s own married daughter. Sons and daughter take equally, there is no discrimination. In the Matter of the Estate of Mary Wanjiru Thairu (deceased) Nairobi HCSC No. 1403 of 2002, a son and six daughters survived a single parent.   The son attempted to inherit the entire estate. This application was rejected. In In the Matter of the Estate of Ellah Warue Nthawa (deceased) Nairobi HCSC No. 971 of 2001, two sons and a daughter survived the deceased. It was proposed that the majority of the properties be divided equally between the two sons, with the female survivor getting a small portion. The money in the bank was to be shared by the sons equally to the exclusion of the daughter. The court rejected the proposal on the basis that S 38 envisages the equal division of the estate amongst all the children.

Reference to children does not distinguish between sons and daughters, neither is there distinction between married and unmarried daughters. In Peter Kiiru Gathemba and others vs. Margaret Wanjiku and another Nairobi HCCA No. 167 of 1994, Amin J stated that the LSA does not make a distinction between married and unmarried children in matters of intestate succession. Rawal J in In the Matter of the Estate of Mwaura Gathari (deceased) Nairobi HCSC No. 1678 of 1999 pointed out that the Act does not discriminate between male and female children. Waki JA stated similarly in Mary Rono vs. Jane Rono and another Eldoret CACA No. 66 of 2002, where he said that there is no discrimination of such children on account of their sex.

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 Ss 35 and 38 of the Act. 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. In the Matter of the Estate of Kamau Mwangi (deceased) Nairobi HCSC No. 1579 of 1994, Osiemo J implied that it is a matter of generosity for a married daughter to get a share of her deceased father’s estate.

The share of the estate to which children, who are below age, are entitled is held on statutory trust, the terms of which are set out in section 41 of the Act. In In the Matter of the Estate of Loice Njeri Ngige Eldoret HCP&A No. 113 of 1994, the court directed the administrators to open bank accounts on account of the minor survivor. It was further directed that the administrators’ trusteeship was to terminate upon the minor survivor coming of age when all the property held in trust for her should revert to her.

Ss 35 and 38 of the Act, are silent on the fate of surviving grandchildren, whose parents have pre-deceased the intestate. The rule of substitution of a grandchild for his or her parent in all cases of intestacy where the parent dies before the intestate is known as the principle of representation. The law on this is S 41. If a child of the intestate has predeceased the intestate or dies before attaining eighteen years, then that child’s issue alive at the date of the intestate’s death will take in equal shares per stirpes contingent on attaining the age of majority or, if female, marrying under that age.

S 42 requires that in determining the final share of a child, grandchildren or house account should be taken of a previous benefit that is: property settled or given during lifetime or by will, and any property appointed or awarded to any child or grandchild under Ss 26 and 35 of the LSA. This is called bringing the property to the hotchpot

The children of a male deceased person include his children born out of wedlock to women who were not married to him. In other words, the fact that the mother was not married to the deceased is no bar to the child inheriting his or her deceased father in intestacy. Mwera J in In the Matter of the Estate of Jonathan Mutua Misi (deceased) Machakos HCP&A No. 95 of 1995, held that a child of an adulterous union is entitled to inherit his father as he is his progeny and cannot be expected to prove his mother’s marriage to his father. The Court of Appeal in John Ndung’u Mubea vs. Milka Nyambura Mubea Nairobi CACA No. 76 of 1990 held that the children of an adulterous union are children for the purposes of succession.

The Rights of Other Relatives

The effect of S 35 of the LSA is that, if the intestate is survived by a spouse and child or children, then no other relative of the intestate will benefit. Other relatives can only access the estate through S 26 of the Act for reasonable provision if they can show that they were dependent on the intestate immediately prior to his death. In In the Matter of the Estate of Fatuma binti Mwanzi Umri (deceased) Nairobi HCP&A No. 21 of 1994, the deceased was survived by her son and a brother. Held: The son was the sole heir in intestacy; the brother could only access the estate through section 26 of the Act.

Where the intestate leaves no surviving spouse or children S 39 applies.  The net intestate estate should devolve upon the kindred of the intestate, that is blood relatives, in the following order: father, or if dead; mother, or if dead; brothers and sisters and any child or children of the deceased’s brothers and sisters, in the equal shares, or if none; half-brothers and half sisters and any child or children of the deceased’s half brothers and half sisters in equal shares, or if none; the relatives who are in the nearest degree of consanguinity (blood relation) up to and including the sixth degree in equal shares; and if there are no such relatives the net intestate estate devolves upon the state bona vacantia.  The estate is liquidated and the proceeds paid into the Consolidated Fund.

In the Matter of the Estate of Beatrice Amalemba HCSC No. 2610 of 2000 (Koome J), the deceased, a married woman, had been pre-deceased by her husband and died without children. A dispute erupted between her father and her in-laws on who was entitled to inherit and administer her estate. In determining the matter the court followed S 39 of the Act and held that the father of the deceased had priority in law to be issued with the grant of letters of administration for the administration of the estate of his deceased daughter, the fact of marriage notwithstanding. In the Matter of the Estate of Wamuhu Murimi (deceased) Nairobi HCSC No. 460 of 2002, the deceased, who died single and without children, was survived by a nephew and three nieces. The court directed that the estate fell for distribution under S 39 to the nephews and nieces in equal shares. The property the subject of Mwathi vs. Mwathi and another should have been divided in accordance with S 39 following the invalidation of the will of the deceased.

Each category must be considered in the order listed in S 39.  The parties in each category take in equal shares. Only if there is no one in a particular category is it necessary to proceed to the next category. S 41 of the LSA.

Division of the Intestate Estate of a Polygamist
S 40 addresses the case of a polygamous intestate. His personal and household effects and the residue of the net intestate estate should in the first place be divided among the houses according to the number of children in each house. For example, if the deceased had two wives and ten children, the estate will be divided into twelve units to be given to each member of the family. If one wife has one child, her house gets two units and this departs from the customary law position which divides the estate equally between the houses, regardless of the number of children in each house. Distribution of the estate should thereafter follow the provisions in Ss 35 to 38 of the Act. In Mary Rono vs. Jane Rono and another Eldoret CACA No. 66 of 2002, the deceased was survived by his two widows and their nine children. The first widow had three sons and two daughters while the other widow had four daughters. The first house sought to have the estate shared in accordance with customary law, which meant that the second house was entitled to a small share since daughters are not entitled under customary law to inherit their deceased parents. The Court of Appeal held that customary law did not apply.

In the Matter of the Estate of Benson Ndirangu Mathenge
In the Matter of the Estate of Nelson Kimotho Mbiti
In Kuria and another vs. Kuria (2004) eKLR 

In In the Matter of the Estate of Mwangi Giture (deceased) HCSC No. 1033 of 1996 (Koome J), the quarrel between the two houses was over the distribution of the estate.  One house argued for equal distribution in accordance with customary law, while the other favoured distribution according to section 40 of the Act. It was held that the court had no discretion in the matter and was bound to follow section 40 of the Act, which provides that the estate be divided between the houses taking into account the number of children in each house. The court, however, decried the unfairness of the provision to the widows who are treated the same as the children. This unfairness is particularly glaring where the first wife participated in the acquisition of the greater part of the estate, but in the end has to take a share equal to that of the younger wife who is married many years after the acquisition of the bulk of the estate, and who has contributed very little to the acquisition of the assets making up the estate.

There is a trend by a section of the High Court where polygamists’ estates are distributed following the principles set out in section28 of Part III of the Act and customary law, instead of section 40 of the Act. In In the Matter of the Estate of Chumo Arusei, Eldoret HCP&A No. 26 of 1998 (Nambuye J), the court applied customary law to the estate although the deceased died after the commencement of the LSA. The court in distributing the estate did not follow section 40, but instead followed section 28 of the Act. The correctness of the court’s decision is doubtful. The law applying to the distribution of an intestate polygamist’s estate is section 40 in Part V of the Law of Succession Act and not African customary law. Section 28 of the Law of Succession Act will also not apply, except in cases where the court is handling an application under section 26 by a person asking for reasonable provision from the estate.


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