Understanding The Kenyan Law Of Inheritance

by Wakili Liam

In Kenya, there is a law that provides guidelines on matters relating to inheritance of property by dependents or survivors upon the death of their breadwinner. This is the Law of Succession Act, which was passed by parliament in 1972.

The law defines who can inherit and how to apply for succession, which is the process that transfers the property from the deceased breadwinner to the beneficiaries, both in cases where there is a valid will and in the absence of one.

However, the aspirations of this law remain a pipe dream for most of the populace due to the lack of knowledge on the existence of laws that safeguard their right to own and inherit property. In instances where they are aware, their actions are limited by information gaps regarding the relevant processes to be taken at the courts or even government offices.

This is coupled by the lack of resources to pursue cases through the formal justice system. As a result, they become victims of fraud, exploitation and in most instances, they are disinherited.

The latter has become a common narrative in many Kenyan communities where inheritance is customarily passed from fathers to sons. It has become the norm to hear women and daughters denied their right to inheritance.

For those lucky to have received a share of the property, the experience is often shortlived as they end up being disinherited by family members.

This is often driven by lack of knowledge and hardly on principles of equality. As a result, only 7 percent of women are registered land owners compared to 30 percent of men in Kenya. Needless to say, most women and children are left at the risk of being homeless and with no source of livelihood.

The situation is further aggravated by the community’s limited knowledge on the constitutional rights of all persons to own property equally without discrimination and on avenues to seek legal recourse.

This explains the significant gender gap that continues to exist despite the introduction of laws on gender equality on property and inheritance laws, such as the Matrimonial Property Act. The Matrimonial Property Act recognises the rights of both spouses to a marriage and thus upon the death of either, the surviving spouse is entitled to the rights to property.

This calls for an increase in public awareness interventions on the processes at the Family Division of the High Court of Kenya and the Office of the Public Trustee and how the public, especially vulnerable orphans and widows, can access these services.

The Family Division plays a key role with regard to issues of succession, a mandatory process that facilitates the inheritance of property by beneficiaries of an estate upon the demise of a loved one.

The Office of the Public Trustee under the State Law Office and the Department of Justice on the other hand, is a pertinent institution for claiming inheritance dues, especially in cases where all the beneficiaries are children or persons with mental disability.

It is in this regard that the Kenya Legal and Ethical Issues Network on HIV/Aids (KELIN) has collaborated with the two institutions to develop simplified education resource materials in form of booklets and posters, that outline the process of initiating the succession procedure, how to claim inheritance dues and the role of the court annexed mediation in the succession process.

Inspired by the challenges faced by widows and orphans that have undergone mediation through alternative justice systems by the Luo Council of Elders in Kisumu and Homa Bay counties, KELIN initiated the process of conceptualising the toolkits to educate members of the community.

The toolkits elaborate on the procedures to claim property rights and the basic documentation required to support the court processes that enable the legal beneficiaries to obtain grants and letters of administration of the estate.

The Family Division, Office of the Public Trustee and KELIN have completed the process of developing the education resource materials and will avail them during the ongoing Family Division Service Week at the Milimani Law Court.

Members of the public are urged to visit the exhibition and learn more about how to secure their inheritance rights. The event dubbed ‘urithi wako, haki yako (your inheritance, your right) speaks to the knowledge gap on inheritance matters in the country.

Jessica Oluoch, Lawyer and senior programme officer of the Women Land and Property Rights programme at the Kenya Legal and Ethical Issues Network on HIV and Aids(KELIN).

The article first appeared in the Business Daily.

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