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."

 

On Lenders ensuring their interest rates and loan terms are commercially reasonable and fair, especially when privately negotiated - The Case of Dhiman v Shah (Civil Appeal E380 of 2023) [2025] KECA 1264 (KLR)

Case Details

• Court: Court of Appeal, Nairobi, Appeal No.: E380 of 2023
• Lower Court: High Court at Nairobi (Makau, J), H.C. Commercial Case No. 205 of 1999
• Judgment Date: July 11, 2025 (Kenya Law)

 Factual Background

1. Loan Agreement (1996–1997):
• Respondent (Shah) lent the Appellant (Dhiman) Ksh 13 million in three installments (Ksh 2.5m, Ksh 2.5m, and Ksh 8m) (Case).
• Only Ksh 7 million was actually disbursed: Ksh 2.5m (Dec 1996), Ksh 2.5m (Jan 1997), and Ksh 2m (Aug 1997) (See Case).
• The agreement included a 36% per annum interest rate, payable quarterly, and security over land (LR 209/8192/8) via promissory notes and charge (See Case).

 

Issues on Appeal

• Unconscionability: Dhiman argued the 36% compounded interest and associated terms were excessively oppressive.
• Validity of Security: Whether the charge securing the loan over Appellant’s property was validly created.
• Preventing Unjust Enrichment: If the agreement was void, what fair restitution was appropriate?

 

 Court of Appeal’s Decision

1. Unconscionability Doctrine Applied
• Court ruled the interest rate and compounding structure amounted to “extortionate” and “oppressive” terms.
• It invoked the unconscionability doctrine, affirming that equity can intervene when contract terms offend justice and conscience.
2. Contract Declared Void
• The loan agreement was set aside, along with the order transferring the mortgaged land.
3. Equitable Restitution
• To prevent unjust enrichment, Dhiman was ordered to repay Ksh 4 million (reflecting actual disbursement minus void portions), at a fair interest rate of 12% per annum (See Case).
4. Land Vesting Nullified
• Any vesting or title change arising from the High Court’s earlier judgment was nullified.

 

Legal Significance

• Balance of Freedom vs Fairness: The Court underscored that while parties are free to contract, courts may intervene when terms are shockingly unfair.
• Kenyan Unconscionability Standard: The decision reinforces the distinction between procedural unfairness (absence of free consent) and substantive unfairness (overly harsh terms).
• Precedent for Loan Agreements: Lenders must ensure their interest rates and loan terms are commercially reasonable and fair, especially when privately negotiated.

 

🏛️ Implications for Practice

For Lenders	For Borrowers
Ensure transparency and fairness in financial terms.	Can challenge oppressive loan terms under equity.
Avoid private lending with punitive interest to evade regulation.	Be aware of rights to restitution even if original contract is void.
Secure legal advice and document informed consent.	Monitor unjust enrichment orders and equitable interest rates.

 

LEGAL BASIS FOR DEED OF VARIATION FOR A LEASE

1. Succession Law

Under the Law of Succession Act (Cap. 160, Laws of Kenya):

• When a landlord (lessor) dies, their rights and obligations under contracts (such as leases) pass to their estate.
• The appointed personal representatives (administrators or executors) step into the legal shoes of the deceased for purposes of estate management.

Relevant Sections:

• Section 79: "The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes... all the property of the deceased shall vest in him as personal representative."
• Section 80(2): Grants of letters of administration take effect from the date of death.

 

2. Contract Law Principles

• A lease agreement is a contractual relationship.
• Under common law, a contract may be varied by mutual agreement of the parties.
• The Deed of Variation is the proper legal instrument to record such changes, particularly when they relate to material terms (e.g., identity of the landlord).

 

3. Registration & Land Law (If Registered Lease)

If the lease is registered (e.g. under the Land Registration Act, 2012), and the property is governed under Kenya’s land law regime, the variation may require:

• Consent of the Land Registrar (if the lease or interest is registered);
• Updating the proprietorship section with the Administrator's details.

 

4. Evidence Required

Before executing the Deed of Variation, the following should be in place:

• Grant of Letters of Administration (from the High Court);
• Death Certificate of the deceased landlord;
• A copy of the original lease/license agreement.

 

🏛 Summary Table

Legal Issue	Applicable Law	Notes
Death of Landlord	Law of Succession Act, Sections 79 & 80	Estate takes over property rights
Change of Parties in Contract	Common Law of Contract	Must be by mutual consent
Variation of Lease Terms	Practice via Deed of Variation	Must be in writing and executed properly
Registered Lease	Land Registration Act, 2012	May require formal registration of variation

 

🖋 Bottom Line:

A Deed of Variation is a legally sound and recognized method to:

• Reflect a change of landlord due to death;
• Ensure continuity of lease terms;
• Avoid legal disputes about payment or possession.

Why A Green Card Search Matters in Land Acquisition as a form of Due Diligence

1.0 Understanding the Green Card in Kenyan Land Transactions

A green card is an actual green piece of paper that maps out a property’s history. It lists all previous owners and when they owned that piece using a hard-to-alter systemized method. This makes it one of the most important documents in due diligence and a must-have before buying land. You will find this document in the land registry.

A Green Card is an official government document maintained by the Ministry of Lands and Physical Planning. It serves as the master record of a property’s history, detailing:

• Ownership changes
• Legal transactions
• Encumbrances (e.g., mortgages, caveats)

Fun Fact: It’s called a Green Card because the original document was green. However, certified copies issued today are often white.

2.0 Relevance of the Green Card in Purchases of Land

Buying land is a major investment, and due diligence is key. Here’s why the Green Card is a must-check document:

1.         Proves True Ownership

• The Green Card lists all past and current owners, ensuring the seller has legal rights to transfer the land.
• Helps you avoid fake sellers and double-selling scams.

2.         Reveals the Land’s Full History

• Tracks every transaction since the land was first registered.
• Exposes disputes, illegal transfers, or pending legal cases.

3.         Protects You from Fraud

• A title deed alone can be forged, but the Green Card is the official government record.
• Cross-checking both documents ensures authenticity.

3.0 The contents of the Green Card? (Structure & Key Details)

A green card has three sections: The property section with property details, including the map sheet number you will ask for at the registry; the Proprietorship section with details of previous registered owners and Encumbrances listing all the charges to that property. Any discharges will also appear here to show, without a doubt, that the property is free to transfer.

A Green Card has three main sections:

Section	Details Included
Part A: Property Details	– Land Reference (LR) Number – Size (in hectares/acres) – Location (Map Sheet No.)
Part B: Ownership History	– Names of all previous & current owners – Transfer dates & transaction details
Part C: Encumbrances	– Mortgages, charges, or loans against the land – Caveats (legal warnings) – Disputes or court orders

 

4.0 The process of Obtaining & Verifying a Green Card

1: Submit an Application

• Only lawyers, licensed surveyors, or the registered owner can request a Green Card.
• Apply at the Ministry of Lands or relevant county registry.

2: Pay the Required Fee

• The current fee is KSh 2,500 (subject to change).

3: Verify Against the Title Deed

• Ensure details on the title deed match the Green Card.
• Any discrepancies could indicate fraud.

Pro Tip: Always involve a real estate lawyer to help verify documents.

 

5.0 FAQs in Kenya

1.         Can anyone access a Green Card?

No—only property owners, lawyers, or licensed surveyors can request it.

2.         How much does a Green Card cost?

Approx. KSh 2,500 (plus legal fees if using a lawyer).

3.         What if the Green Card and title deed don’t match?

This could indicate fraud—consult a lawyer immediately.

4.         Is the Green Card the same as a title deed?

No—the Green Card is the official record, while the title deed is issued to the owner.

5.         Where can I get a Green Card?

At the Ministry of Lands or respective county land registry.

6. Is the green card essential for due diligence when buying land in Kenya?

A: Yes, its importance cannot be overemphasized. The green card shows all the property details, from the title deed number to all its previous and current owners.

7. Can a lost green card be replaced?

A: Yes, you can apply for a replacement with all the details of the lost green card since all the information is available at the Land’s Registry.

8. Is a green card ever closed?

A: Yes. When land is subdivided and new titles issued, new green cards, the same number as the new title deeds, are opened. You can still commission a copy of the old green card from the Registrar in writing.

6.0 Common Mistakes to Avoid When Buying Land in Kenya

1.         Skipping Green Card Verification – Never rely on a title deed alone.

2.         Ignoring Encumbrances – Check for mortgages, caveats, or disputes.

3.         Not Hiring a Lawyer – A legal expert ensures a smooth, fraud-free transaction.

The Green Card is the most reliable document for verifying land ownership in Kenya. All buyers should confirm Green Card details before purchasing land.

7.0 Conclusion 

Important Considerations:

• Not all properties have Green Cards:

Properties under the Land Titles Act (LTA) generate Green Cards. Properties under the Registered Titles Act (RTA) and Government Land Act (GLA) do not. 

• Verification is key:

Always verify the authenticity of the Green Card with the issuing authority. 

• Consult a professional:

Engage a real estate lawyer for assistance with the application and verification process. 

 

On property rights and the strict enforcement of contractual principles - The case of Delmonte Kenya Limited v Goshen Gardens Limited & another (Environment & Land Case 1245 of 2015) [2025]

Full Case Available Here 

Parties to the suit:

• Plaintiff: Delmonte Kenya Limited – a company engaged in large-scale agricultural production, and the registered owner of the suit property.
• Defendants:
• Goshen Gardens Limited – alleged trespasser and party in occupation of the suit land.
• Pioneer International Schools Ltd – operating a school on the property allegedly without lawful authority.

Brief Facts

• Delmonte Kenya Ltd filed a suit alleging that the defendants had unlawfully entered and occupied its property known as LR No. 12157/2, located in Murang’a County.
• The defendants were said to have constructed buildings and operated a school without any legal rights or title to the land.
• Delmonte obtained interim injunctions in December 2015 restraining the defendants from any further dealings on the land, but the defendants allegedly ignored the court orders.

Case summary 

The original lease between Delmonte Kenya Limited and Goshen Gardens Limited expired on September 2, 2021 by effluxion of time during the pendency of the suit. The Court unequivocally found that no lease agreement was ever executed between the Plaintiff and the 2nd Defendant (Pioneer International Schools Ltd). The Plaintiff consistently declined requests to commit to a lease with the 2nd Defendant until the 1st Defendant vacated and surrendered possession of the premises. As the 2nd Defendant was not a party to the original lease, it had the burden to prove its rights, which it failed to do.

Issues for determination:

1. Whether the defendants unlawfully trespassed on Delmonte’s land.
2. Whether the plaintiff was entitled to:
• Permanent injunctions,
• Mandatory eviction orders,
• Mesne profits (compensation for illegal occupation),
• Costs and interest.
3. Whether the defendants were in contempt of the interim court orders issued in 2015.

 

Review of Legal Implications/Principles

Courts Cannot Rely on Correspondence to Create a Contract by Estoppel:

The 2nd Defendant's argument for entitlement to possession based on the doctrine of estoppel was dismissed. The Court held that none of the Plaintiff's actions or correspondence could be construed as misrepresenting an intention to execute a lease agreement with the 2nd Defendant. Any rents received by the Plaintiff from the 2nd Defendant were explicitly received on a "without prejudice" basis to protect the Plaintiff's claim for mesne profits. For proprietary estoppel to be established, there must be a proven belief, encouragement, and detrimental reliance, none of which were demonstrated.

Courts do not re-write contracts between parties:

A fundamental principle of contract law was reiterated: courts do not re-write contracts between parties. The judgment clarified that even if the correspondence exchanged pointed to an intention to execute a lease between the Plaintiff and 2nd Defendant, it remained just that, an intention. The Court explicitly stated it lacked the power to compel parties to translate such an intention into a formal lease.

Consequently, mandatory injunctions compel both defendants to vacate the property by December 10, 2025, and permanent injunctions restrain them from transferring possession from that date.The Plaintiff was awarded costs of the suit.

Court’s Holding / Judgment

The court found in favour of Delmonte Kenya Ltd, holding that:

• The defendants trespassed unlawfully on the plaintiff's land and continued to occupy it despite court orders.
• The occupation and operation of a school by the 2nd defendant (Pioneer Schools) were unauthorized and illegal.
• The defendants were liable for mesne profits for the period of unlawful occupation.

Court Orders

1. Permanent Injunction: Defendants permanently restrained from trespassing, leasing, constructing on, or using the property in any way.
2. Mandatory Injunction: Defendants ordered to vacate the property, remove all structures and assets, and deliver vacant possession.
3. Mesne Profits: Defendants to pay market-rate compensation from the date of occupation until delivery of possession.
4. Costs & Interest: Awarded to the plaintiff.
5. Enforcement: If the defendants fail to comply, eviction may be enforced with police assistance.

Contempt of Court

• The Court of Appeal (in a related 2024 decision) found Goshen Gardens Ltd and its director in contempt of the 2015 injunctions.
• The matter was remitted back to the Environment and Land Court for sentencing.

 Legal Principles

• A party in unlawful possession of land without title or license is liable for trespass and mesne profits.
• Court orders must be obeyed; contempt attracts legal consequences.
• Permanent and mandatory injunctions may be granted to protect property rights and restore possession.