> Black Law Dictionar ry: succession or inheritance is the devolution of title to property under the law of descent and re-distribution of the said property. Under the African context-Is not just the passage of property of the deceased but denotes obligations and status he/she held in the society e.g heir take care of the deceased dependants. Therefore, succession is concerned on the rules on how property is passed when person dies testate, intestate or partially intestate. The law of succession provides the mechanism by which property devolves from its deceased owner to the people who are left behind by him. It seeks to ensure that rightful claimants inherit the property of the deceased person. It also provides for the procedure by which such rightful claimants inherit or accede to the estate of the deceased person. There is very close interface between law of succession and other areas of low: family law, law of trusts, Equity and property law. 1 Testate succession- refers to the disposal of a person’s property after death according to a will or testament. Person making a will-testator(male) or testatrix(female). Will-a record of deceased’s wishes and intention pertaining to the devolution of his property upon death. The executor is appointed under a will to manage the property of the dead person and to eventually distribute it to the persons entitled to it under the terms of the will. The executor derives his authority to deal with the property of the deceased from the will, but his authority is evidenced by a probate paper called the grant of Probate. Probate denotes the process by which a will is proved genuine and the executors are authorised to dispose of the estate of the deceased person. Intestate succession-occurs when a person dies without a will or dies having made a will which is invalid,> ic Jaw) determine er under statute, customary OF Islamic law) 10 dies intestate. The rules of intestacy (wheth herit first followed by distant sn suhich relative inherit the property of @ Perso? wt Immediate family members( spouse and children) in! relatives. the state. Where is no none relatives the property devolved back to oo i nt The person who manages the property of the intestate is appoi xa tere The administrator derives his/her authority from by the court and is called an adminl probate called a grant of letters of admint The role of executors and administrators is commonly known as Ff cdmintitration of estates. This entails the management and distribution of the estate of a dead person by his/her personal representatives. According to the Law of Succession, on death, the estate vests in the personal representatives. They represent the deceased and have power to do that which the deceased himself would have done, and similarly they bear the burden of the same duties as would have been borne by the deceased if he were alive. The personal representatives may be executors, if appointed under a will, or administrators if appointed by the court. HISTORY OF THE LAW OF SUCCESSION IN KENYA HISTORY OF THE LAW OF SUCCESSION IN KENYAThe erlod prior to 1" July 1961, when the Law of Succession Act came into force, was Sraracterized by @ plural application of succession laws in Kenya. Each socio-cultural group had its own body of succession law. This scenario obtained because of historical reasons. 2.1 The Law applying to Africans For a long time before the statutory law of succession came into force, the law of succession governing indigenous Kenyans was customary. 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. The matter of these African with regard to the applicable personal law came up for judicial determination in the case of Benjawa/embe vs. Priscilla Nyondo 4 EALR 160 (1912) where Barth | 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”See ako Miney Frances ux. Kuri 24 (2) KLR I was made through the An attempt to address the problem presented by these Africans wos the African passing of the 1897 Native Courts Regulations, Article 64 of which provided that “ Christians were governed by the law that governed Indian Christians. Interestingly, the regulations did not say what law this was ie. whether it was the Indian law of succession oF 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. This remained the position until 1961 when the African Wills Act was Passed to enable the Africans to make written will. Testate succession became subject to this statute while intestate succession continued being governed by the respective customary law of the deceased.} 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 ete. 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 no 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 and Re Kibiego (1977) E.A 129. 2.2 The Law applying to Hindus Between 1887 and 1888, the position of the Hindus with regard to the law of succession was very uncertain principally because the Indian Law of Succession Act had been disapplied to Kenya. 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.he ified os being applicable to the With regard to intestate succession, no law had been specified 0+ + unt 1946 The Hindu customary law that governed the sublec Kenyan Hindus. automatically filled this vacuum. ir It 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. The scope of the legislation was therefore restricted. Another restriction in the scope of the ordinance was that it only applied to the Hindus whose marriages had been contracted in the colony. In Bessan Kaur v. Rattan Singh 25 KLR 24 the plaintiff, who was a widow, sued the defendant who, as the deceased’s only son had inherited his father’s entire estate. She claimed for maintenance under the above legislation. It was held that she could not establish any right of succession under the ordinance since her marriage with the deceased was contracted outside the colony and section 3(1) of the ordinance restricted the scope of the statute to persons married in Kenya. Because of some law reforms that took place in India, in 1960, it was deemed appropriate to amend the Kenyan ordinance accordingly and bring it into line with these changes. 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 Law of Succession Act repealed them both.2.3 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/iwaii 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 old Constitution, which provided for the establishment of the Kadhi’s courts. These courts were mandated to decide matters arising out of Isamic 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,i led the Between 1981 and 1990, there was intense agitation by the Muslims who regard iat the assurance government's act of passing the Law of Succession Act as a repudiation of nee that the Quran or a statute embodying the given at independence. Their case was a provisions Muslims. They asked to # the Quran must govern matters of personal law for : as irect conflict with exempted from the provisions of the Act as some of its provisions were in the Quran. 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 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. This Amendment Act also re-affirmed the position of the Kadhi’s courts by stating that these courts will continue to have jurisdiction to decide on succession matters relating to Muslims in accordance with Islamic law. See Kamau Article in Weekly Review 18/2/83 for the arguments used by the Muslims to oppose the Law of Succession Act. 2.4 The Law applying to the Europeans The Europeans who had settled in Kenya and acquired a Kenyan domicile needed a law to govern their succession matters. They could not obviously be governed by African castomary law, Hindu or Islamic laws of succession and needed a law a kin to that which was applicable to their brethren in other British colonies.The law applicable to British settlers in the colonies was English law with Might adaptat to suit conditions prevailing in the colonies. 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 was felt that the same law could govern the settlers in Kenya. The 1865 Act reflected the position of succession laws in England at that time. It provided for both estate and intestate succession. It contained the doctrine of testamentary freedom that allowed a testator to will away all his property to whomever he felt like without necessarily leaving anything for his dependants. The Act provided that in the case of testate succession, the estate of the testator devolved to the persons named by him in the will regardless of his relationship with them. It was therefore possible for a testator to leave his entire estate to a charitable organization without providing for even his immediate dependants. 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. This section had imposed a restriction on the doctrine of testament of freedom by providing that any gift made in a will for a charitable purpose had to be made at least 12 months prior to the testator’s death. The provision was meant to take care of those situations where a testator sought to make peace with his maker in his deathbed by bequeathing all his estate to charitable Organizations at the expense of his dependants. The section ensured that the period of 12 months enabled the testate to improve on his condition and make a sober decision,necessary and hat this restriction on testamentary freedom was unn ry stator was then enabled nyan settlers felt th The Kenyan s ae initiated the 1932 amendment that removed the restrictior is estate to whomever he felt like without to leave hi i 1d 1889 that had reflected the developments in the English law of succession between 1888 an 188: not been incorporated in the 1865 Act. The other major amendment to the 1865 Act was through Order No. 48 of 1956, which resulted in the present day Low 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 above amendments did not, however, fully harmonize the Indian Succession Act with the English law of succession in force in England at the time. A number of changes in the English law were not incorporated into the Act. One of these amendments is the English law of succession in 1938 that removed the doctrine of testamentary freedom from the statutes. The 1938 amendment required that a testator should provide for his immediate family members and every other dependant of his before giving out any part of his estate to strangers. This amendment also gave dependants the right to challenge a will on grounds that they had not been adequately provided for in the will or that they had effectively been disinherited. Another change that was not reflected in Kenya was the passing of the Intestate Estates Act of 1952. This Act provided that in the case of intestacy the persons who should inherit from the estate of the deceosed were his immediate family members in the first instance and where there were none, his parents, brothers and sisters.CHAPTER THREE 3. THE LAW OF SUCCESSION APPLYING IN KENYA SINCE 1961 Jon in Kenya applying to the four Until 1" July 1981, there were four systems of law of suce different socio-ethnic groups of people in Kenya. The Law of Succesion Act was pared with the intention of merging and consolidating all the four systerms 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 parliarnent to define and consolidate the law relating to intestate and testamentary succession and the administration of estates of persons and for connected Purposes. Section 2(1) of the Act states that #re Met constitutes the law of Kenya In respect of, and shall have universal application to all cases of intestate or testamentary succession te the estates of deceased persons dying after the commencement of the Act. Section 99 of the Act repeals all the then existing statutes on the law of succession and these are listed in the 8" schedules. They are as follows:-the Indian Succession Act of India 1865. the Hindu Wills Act of India, 1870. the Probate and Administration Act.1888. the Hindu Succession Act. the African Wiills Act. 1961. the Administration of Estates by Corporations Act. the Commonwealth Probate Act. the Colonial Probate Act. 1892. reef 0 p69 7 @ SECTION 100 provides for the amendment of the other existing statutes, among them being the Mohammedan Marriage, Divorce and Succession Act (Cap. 156), which was hormonized with the Law of Succession Act by the deletion of its section 4, which dealt with matters of succession.