The country’s Inheritance laws apply to every individual who owns property in Kenya.
The Civil Procedure Act and The Law of Succession Act apply to all cases, whether interstate succession or testate/testamentary succession.
When we talk of testate or testamentary succession we refer to the case scenario where the deceased person (decedent) left a will stating how his property will be distributed to his or her successors.
When we talk of interstate or intestacy, we describe a scenario where the deceased person did not leave a will and the probate court will determine distribution of his property to his heirs and successors in accordance to priority statute.
In Kenya, some general inheritance principles are in effect. These for example are:
- The succession to movable assets is regulated by the Law of the country of the domicile of the individual at the time of death.
- Succession of immovable property that is in Kenya is regulated by The Laws of Kenya regardless of the location or the domicile of the owner at the time of death.
On normal occasions, the law is applicable to spouses with different nationalities and religions. The court in the locality where the immovable property is situated usually has jurisdiction to hear and determine proceedings regarding property rights. If the parties who own property, however, are of Islamic faith then Islamic law is likely to apply with proceedings before the Kadhis Court.
Any decisions relating to inheritance of property in Kenya owned by non-resident foreigners that do not belong to the Islamic faith are dealt by The Family and Probate Division of The High Court of Kenya.
The Family and Probate Division of The High Court of Kenya, hears and determines all proceedings relating to real estate of the deceased. It ensures all procedures and provisions of the Law of Succession Act are adhered to.
If the Law of a foreigner’s nationality states that the applicable law for inheritance of immovable property located in Kenya is non-Kenyan law then Kenyan Law still takes precedence. This is due to the fact that any decision made by any foreign court must be registered with The High Court of Kenya for it to be enforced in Kenya.
The process for a probate to be granted can be a slow process especially when it is contested. To publish an application for probate in the Kenya Gazette for 30 days is considered mandatory.
Letters of Administration Intestate or The Grant of Probate is conceded after the process of granting probate is complete. If the immovable property of the deceased is to be sold, the grant must be confirmed by filing a formal application to The High Court within six months.
In some cases, the period can be waived. In correspondence, the process to determine a probate case which has no conflicting interests takes about seven to nine months.
When we talk of intestacy, The Law of Succession Act dictates how the property of the deceased should devolve. In the case of a surviving spouse, the spouse is entitled to household and personal effects of the deceased. The spouse is also entitled to a life interest in the whole residue of the net interstate estate.
If the surviving spouse is a widow, when she remarries her life interest is terminated.
The surviving spouse has power to give any or all part of the capital of the net interstate estate to any surviving children.
If only the children were left and no surviving spouse then the estate devolves upon the children of the deceased equally.
If there are no children and no surviving spouse, the estate devolves upon the kindred, in the following order of priority:
- The father or if dead then the mother
- If no mother or father, then brothers and sisters, and their children, in equal shares
- If none, then half-brothers and half-sisters and their children in equal shares
- If none, then the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.
- Failing of survival of any kindred, the estate devolves upon the State.
Kenyan Law on Foreigners
It is advisable for every Kenyan to make a will. Although most Kenyans don’t, it is permitted by the Law and it is relatively simple to make it. The testator (The one making the will) must sign the will in the presence of the testator. A foreigner does not have to be in Kenya to make a will as this can ultimately be done via a lawyer.
For foreigners owning property in Kenya, it is advisable to make a will as it makes it easier for The High Court to deal with the disposal of property, particularly for beneficiaries who may not live in Kenya.
In the case of intestate succession, all beneficiaries are required to give consent via signatures to The High Court for approval of the application. This however, may be a long and complicated process if the beneficiaries are not all in the same country. The procedural requirements in The High Court are way less tedious when there is a will since only the named executors are required to sign the application. A will avoids potential fight and quarrels between beneficiaries.
Kenyan Law on Spouses and Minors
Property can be given freely by an owner to anyone prior to their death.
The courts in Kenya always apply The Kenyan Law while determining ownership of property. Where there arises an issue concerning the owner of property or how the property is to be distributed between spouses, the Kenyan Law will look primarily at the names on The Title Deeds.
In the event where a child or minor inherits property, then the guardian should be appointed to manage the property till the child comes of legal age. The maker of the will is free to appoint a suitable guardian protecting the right and interests of the child.
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