Lawyers’ Guide: Succession Law & Procedure in Kenya

I. Legal Framework

• Primary Legislation:
• Law of Succession Act (Cap 160, Laws of Kenya)
• Procedural Guidelines:
• Probate and Administration Rules (Cap 160 Sub Leg)

 

II. Classification of Succession Cases

A. Non-Contentious Succession

• No dispute exists.
• Usually involves:
• A valid written will (Testate)
• Agreement among beneficiaries in intestate cases.

B. Contentious Succession

• Dispute over:
• Validity of a will
• Inclusion/exclusion of heirs
• Property distribution
• Requires a full hearing (probate in solemn form).

 

III. Succession Types

A. Testate Succession

• Valid will left by deceased.
• Grant sought: Probate.
• Executor(s) named in the will file the petition.

B. Intestate Succession

• No will or invalid will.
• Grant sought: Letters of Administration.
• Distribution follows Part V of the Law of Succession Act.

 

IV. Constitutional Principles (Applies to All Cases)

• Article 27 – Equality and non-discrimination in inheritance.
• Article 40 – Right to property protection.
• No discrimination based on gender, marital status, age, etc.

 

V. Order of Priority in Filing Applications (Section 66 LSA)

1.        Surviving spouse(s) (with or without other beneficiaries)

2.        Other beneficiaries (children, parents, siblings, etc.)

3.        Public Trustee

4.        Creditors

Note: No more than four persons may apply jointly (Section 56).

 

VI. Ineligibility to Apply (Section 56)

• Minors
• Persons of unsound mind
• Undischarged bankrupts

 

VII. Required Documents for Application (High Court Registry)

A. Mandatory Forms

Form	Purpose
P&A 80	Petition (summons format)
P&A 5	Affidavit in support of petition
P&A 12	Affidavit of means
P&A 11	Justification for sureties
P&A 57	Personal surety guarantees
P&A 38	Consent from adult beneficiaries not applying

B. Supporting Documents

• Original Death Certificate
• Chief’s letter confirming beneficiaries
• Will (Original or authenticated copy) – if testate
• Proof of ownership of assets (title deeds, logbooks)
• ID copies of applicants
• Objection waiver consents (if applicable)

 

VIII. Application Procedure

Step 1: Filing the Petition

• File above forms at the High Court (Family Division).

Step 2: Gazette Notice

• Cause is advertised in Kenya Gazette for 30 days.
• Objections may be filed during this period.

Step 3: Objection Handling

• If filed, court sets down for hearing as contentious matter.
• Objector files cross-petition; normal trial procedures apply.

Step 4: Grant of Representation

• If no objection is received:
• Letters of Administration or Grant of Probate issued.
• Holder is empowered to collect and preserve estate assets only.

 

IX. Confirmation of Grant (After 6 Months)

Procedure:

• Application under Section 71 LSA and Rule 40
• Filed via Summons with:
• Affidavit in Support
• Schedule of Assets showing proposed distribution
• Consent from beneficiaries (if required)

Court Checks:

• All dependants included
• Proposed distribution is fair
• No outstanding disputes

 

X. Final Steps

1.        Court confirms the grant.

2.        Administrator distributes the estate according to approved schedule.

3.        Upon completion, administrator may apply for discharge.

 

⚖️ Important Points to Note:

• All petitions and applications are filed at the Family Division of the High Court.
• Court may appoint guardians ad litem for minors.
• Where a will is contested, oral evidence of its validity is required.
• Court discretion is final in interpreting "dependants" and "fair distribution."