Contentious Probate and Succession Disputes in Kenya: Key Issues, Remedies and the Proper Forum

When an estate is disputed, the question is rarely simply, “Who should inherit?”

A succession dispute may involve the validity of a Will, the circumstances in which it was made, whether a person is entitled to reasonable provision, who qualifies as a beneficiary or dependant, whether an executor or administrator has properly performed their duties, or whether a particular asset actually belonged to the deceased.

These questions can become complex because different disputes may call for different remedies and, in some circumstances, may fall within the jurisdiction of different courts.

In Kenya, contentious probate and succession disputes are principally governed by the Law of Succession Act, Cap. 160, together with the Probate and Administration Rules and the constitutional and statutory provisions governing the jurisdiction of the courts.

The starting point in any contested estate should therefore be to identify the real dispute, the appropriate remedy, and the correct forum before substantial litigation costs are incurred.

1. Challenging the validity of a Will

A Will is an important expression of a person's testamentary wishes, but its existence does not necessarily make it valid or enforceable.

Section 5 of the Law of Succession Act permits a person of sound mind who is not a minor to dispose of their free property by Will. The Act, however, imposes important limitations on testamentary freedom and provides circumstances in which a Will or part of it may be rendered invalid.

Testamentary capacity

One of the most common challenges concerns the testator's mental capacity.

Section 5(3) of the Law of Succession Act provides that a person making a Will is presumed to be of sound mind unless, at the time of executing the Will, they were in such a state of mind—whether because of mental or physical illness, drunkenness or another cause—as not to know what they were doing. The burden of proving lack of testamentary capacity rests upon the person alleging it.

The fact that a testator was elderly, ill or receiving medical treatment does not, by itself, establish lack of testamentary capacity. The relevant question is the testator's state of mind at the time the Will was made.

The courts have consistently treated testamentary capacity as a question of fact to be determined from the evidence. In In re Estate of G.K. (Deceased) [2017] eKLR, the court considered the requirements surrounding testamentary capacity and the circumstances in which a Will may properly be challenged.

Evidence may include medical records, evidence from the advocate who prepared the Will, the attesting witnesses, persons who interacted with the testator around the relevant period, and evidence concerning the testator's conduct and understanding.

Fraud, coercion, undue influence and mistake

Section 7 of the Law of Succession Act provides that a Will, or part of a Will, is void where its making was caused by fraud or coercion, or by such importunity as deprived the testator of free agency, or by mistake.

The circumstances surrounding the preparation and execution of a Will can therefore become highly significant.

Questions may arise where:

• a beneficiary was closely involved in preparing the Will;
• the testator was dependent upon or vulnerable to another person;
• the Will substantially departs from previous testamentary wishes;
• the testator was allegedly pressured to exclude particular family members;
• the signature or thumbprint is disputed;
• the contents of the Will were allegedly not explained to an illiterate testator; or
• there are other suspicious circumstances surrounding its preparation or execution.

However, suspicion alone is not necessarily sufficient to invalidate a Will. The party challenging the Will must establish the legal ground relied upon with sufficient evidence.

Formal validity and execution

Section 11 of the Law of Succession Act sets out the formal requirements for a written Will. Among other requirements, the testator must sign or affix their mark to the Will, and the Will must be attested by at least two competent witnesses in the manner prescribed by the Act.

Accordingly, where execution is disputed, evidence from the attesting witnesses and the advocate or other person who prepared or supervised execution of the Will may become particularly important.

A challenge may therefore concern not only what the Will says, but also whether it was properly made and executed.

2. Reasonable provision for dependants

A valid Will does not necessarily end every succession claim.

Kenyan law recognises testamentary freedom while also protecting certain dependants who have not been adequately provided for.

Section 26 of the Law of Succession Act empowers the court, upon an appropriate application, to make reasonable provision from the deceased's net estate where the disposition made by Will, by gift in contemplation of death, under the law of intestacy, or through a combination of these, has not made reasonable provision for a dependant.

This is an important distinction.

A dependant may not necessarily be asking the court to declare the Will invalid. Instead, the complaint may be that even though the Will is valid, the provision made for the dependant is inadequate.

In determining whether to make an order for reasonable provision, the court exercises a statutory discretion. Section 27 permits the court to order a specific share of the estate, a lump sum, periodic payments or another appropriate form of provision.

Who is a dependant?

Section 29 defines the persons who qualify as dependants for purposes of Part III of the Law of Succession Act.

The first category includes the spouse or spouses and children of the deceased, whether or not they were maintained by the deceased immediately before death. The second category includes specified relatives and other persons who were being maintained by the deceased immediately before death.

The distinction is important because persons falling within the second category may have to establish actual maintenance or dependency.

In Okello v Onyango (Succession Appeal E002 of 2022) [2023] KEHC 22828 (KLR), the High Court emphasised that an application for reasonable provision under section 26 is available only to persons who fall within the statutory definition of a dependant under section 29. The court distinguished spouses and children, who fall within the first category, from other relatives who must establish dependency.

Similarly, in In re Estate of Stanley Paul Buliba (Deceased) [2023] KEHC 2702 (KLR), the court emphasised that “dependant” is a technical statutory term in the context of Part III of the Law of Succession Act and should not simply be equated with everyone who may, in an ordinary sense, have depended upon the deceased during their lifetime.

A reasonable-provision claim should therefore be approached as an evidence-based statutory claim rather than merely an assertion that the claimant was a member of the deceased's extended family.

3. Disputes over beneficiaries, spouses and dependants

Succession disputes frequently arise because parties disagree about who is entitled to participate in the estate.

Questions may include:

• Was the claimant legally married to the deceased?
• Was there more than one recognised spouse?
• Is a particular person a child of the deceased?
• Was a child adopted or otherwise taken into the deceased's family?
• Was a relative being maintained by the deceased?
• Is a person claiming under the Will actually entitled to the property in question?
• Has a beneficiary been deliberately or inadvertently left out of the proceedings?

These questions are significant because the identity of the beneficiaries determines the manner in which an estate may ultimately be administered and distributed.

Evidence may include marriage records, birth certificates, adoption documents, identity records, correspondence, financial records and testimony from persons familiar with the family circumstances.

Where dependency is disputed, evidence of financial or other support provided by the deceased before death may become critical.

4. Disputes concerning estate assets

Another major category of contentious succession litigation concerns the assets said to form part of the deceased's estate.

The succession court must establish the property available for administration and distribution. But not every dispute concerning property associated with a deceased person is necessarily a succession dispute.

For example, there may be a dispute as to whether:

• land registered in another person's name was actually beneficially owned by the deceased;
• property was held on trust;
• the deceased had already transferred an asset during their lifetime;
• a third party purchased property from the deceased;
• property was jointly owned;
• property was unlawfully transferred before or after death; or
• a third party has an independent proprietary claim.

The distinction between succession and ownership can therefore be decisive.

In Isaya Masira Momanyi v Daniel Omwoyo & Another [2017] eKLR, the court recognised that disputes concerning ownership of land between an estate and third parties are matters for determination in the appropriate land forum rather than matters to be conclusively determined through succession proceedings.

Similarly, in In re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR, the High Court explained the distinction between the probate court's mandate to administer and distribute an estate and disputes concerning proprietary rights in land.

More recently, in Njuguna (Suing in his own capacity and in his capacity as the personal representative of the Estate of Monicah Wanjiku Thuo (Deceased)) & another v Mwaura (Sued as the personal representative/administrator of the Estate of the Late Paul Mwaura Thuo (Deceased)) [2024] KEELC 3772 (KLR), the Environment and Land Court considered the relationship between succession jurisdiction and disputes concerning land, noting the statutory and procedural distinction between inheritance and distribution of land under succession law and independent disputes concerning land rights.

The practical lesson is that a party should not assume that every dispute concerning property forming part of an estate belongs before the probate court.

5. Identifying the correct forum

This is one of the most important considerations in contentious succession litigation.

Section 47 of the Law of Succession Act gives the High Court jurisdiction to entertain applications and determine disputes under the Act. Magistrates' courts may also exercise succession jurisdiction where authorised by law and within their jurisdictional limits.

The Constitution, however, separately establishes the Environment and Land Court to determine disputes relating to the environment and the use and occupation of, and title to, land.

The distinction becomes particularly important where an estate dispute involves land.

A dispute between beneficiaries concerning the inheritance or distribution of land forming part of the deceased's estate will generally be dealt with through the succession process.

An independent dispute concerning title, ownership, use or occupation may, however, fall within the jurisdiction of the Environment and Land Court.

The courts have repeatedly emphasised this distinction.

In Njoroge v Njoroge & another (Environment & Land Case 36 of 2023) [2023] KEELC 21808 (KLR), the Environment and Land Court held that a dispute concerning the mode of distribution of a deceased person's estate was properly a succession matter and not a dispute concerning the use, occupation or title to land falling within the ELC's jurisdiction.

Similarly, in Muriu & 3 others v Onesmus & 2 others (Environment & Land Case E061 of 2022) [2023] KEELC 22230 (KLR), the court recognised the separate legal regimes governing succession and land disputes and referred to the applicable practice directions, which provide that cases concerning inheritance, succession and distribution of land under the Law of Succession Act should continue to be filed and heard by the High Court or competent Magistrates' Courts.

The position is therefore not that the ELC has no connection whatsoever with estate-related land disputes. Rather, the critical question is what the dispute is actually about.

In Njoroge & another v Kinuthia (Environment and Land Case E126 of 2025) [2026] KEELC 185 (KLR), the court considered the interaction between section 47 of the Law of Succession Act and the jurisdiction of the Environment and Land Court. The decision illustrates the importance of identifying whether the dispute concerns succession and distribution or an independent proprietary dispute concerning land.

The same issue was considered in In re Estate of Marko Mukhweso Muidakho (Deceased) [2026] KEHC 1702 (KLR), where the High Court emphasised that the fact that a dispute touches upon land does not automatically remove it from the jurisdiction of the succession court where the substance of the dispute concerns administration of the deceased's estate.

The question is therefore not simply whether the property is land. It is what legal issue the court is being asked to determine.

6. Challenging a grant of representation

A further source of contentious litigation is the grant of representation itself.

A grant may be challenged where, for example, the person who obtained it allegedly concealed material information, made a false statement, failed to disclose beneficiaries, or otherwise obtained the grant through defective or improper proceedings.

Section 76 of the Law of Succession Act provides the principal statutory grounds for revocation or annulment of a grant.

These include circumstances where:

• the proceedings to obtain the grant were defective in substance;
• the grant was obtained fraudulently by making a false statement or concealing something material;
• an essential allegation was made falsely;
• the person to whom the grant was made has failed to administer the estate diligently;
• the administrator has failed to produce inventories or accounts when required; or
• the grant has become useless or inoperative.

In In re Estate of the Late Kimeu Muthembwa Mbithi (Deceased) [2025] KEHC 17270 (KLR), the High Court reiterated the distinct role of the succession court in identifying the free property of the deceased, ascertaining beneficiaries and supervising distribution.

Revocation is therefore not simply a mechanism for correcting an unpopular distribution. The applicant should identify and prove a statutory ground under section 76.

7. Challenges to executors and administrators

Personal representatives occupy a position of significant responsibility.

Their statutory duties include collecting the deceased's free property, paying debts and expenses, preparing inventories and accounts, and distributing the remaining estate in accordance with the Will or applicable law.

Section 83 of the Law of Succession Act sets out the duties of personal representatives.

Disputes may therefore arise where an administrator or executor is alleged to have:

• failed to disclose estate assets;
• sold or transferred estate property improperly;
• failed to account for estate income;
• failed to pay legitimate debts;
• distributed assets contrary to the confirmed grant or Will;
• delayed administration without justification; or
• mixed estate property with personal property.

Where such conduct is established, the court may require accounts, issue directions concerning administration or, where the statutory requirements are met, revoke the grant.

The importance of the personal representative's duty to account was underscored in In re Estate of Patrick Mwangi Githinji (Deceased) [2025] KEHC 6867 (KLR), where the High Court considered questions concerning the administration of an estate and the court's jurisdiction over disputes arising within succession proceedings.

8. The importance of identifying the real dispute

A common mistake in estate litigation is to begin with the remedy rather than the underlying dispute.

For example, a party may seek revocation of a grant when the real dispute concerns ownership of land. Another may challenge a Will when the real complaint is that a dependant was inadequately provided for.

These are not necessarily the same claims and may require different evidence, procedures and remedies.

The principle that jurisdiction flows from the Constitution or statute is well established. In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court held that a court's jurisdiction flows from either the Constitution or legislation, or both, and a court cannot arrogate to itself jurisdiction beyond what the law permits.

Accordingly, a succession court should not be invited to determine an issue that properly belongs to another specialised forum merely because that issue arises in the broader context of an estate.

The courts have stressed that jurisdiction is determined by the nature and substance of the dispute, rather than merely by the labels placed upon the pleadings.

Early legal analysis can therefore help determine:

1.       What exactly is being disputed?

2.       Is the dispute about succession, administration or proprietary ownership?

3.       What statutory remedy is available?

4.       Who bears the burden of proof?

5.       What evidence is required?

6.       Which court has jurisdiction?

7.       Can the issue be determined within the existing succession cause, or is separate litigation necessary?

9. Evidence is often decisive

Contentious probate matters are rarely determined by allegations alone.

Where a Will is challenged, relevant evidence may include the original Will, evidence from attesting witnesses, the advocate who prepared the Will, medical records, handwriting or signature evidence, previous Wills, correspondence and evidence concerning the circumstances surrounding execution.

In reasonable-provision claims, evidence concerning the claimant's relationship with and dependency upon the deceased, the deceased's assets and liabilities, the claimant's financial circumstances and the reasons for the provision made under the Will may become relevant.

In disputes over estate assets, title documents, sale agreements, bank records, company records, trust documents and evidence of possession or beneficial ownership may be critical.

The earlier the evidence is preserved and evaluated, the easier it may be to identify the strongest legal route.

10. A practical approach to contentious estates

When an estate becomes disputed, parties should consider taking a structured approach rather than immediately commencing multiple proceedings.

First, identify the estate

Determine what property, liabilities, interests and obligations actually belonged to the deceased at death.

Second, establish the parties

Identify the executors or administrators, beneficiaries, dependants and any third parties asserting an interest.

Third, identify the precise dispute

Is the challenge directed at the Will, the beneficiaries, the grant, the administration of the estate, or ownership of a particular asset?

Fourth, determine the appropriate remedy

Depending on the circumstances, the appropriate application may involve an objection to a grant, revocation or annulment, an application for reasonable provision, directions concerning administration, an objection to confirmation, or separate civil or land proceedings.

Fifth, confirm jurisdiction before filing

A claim filed in the wrong forum can result in delay, additional costs and potentially significant procedural complications.

This is particularly important where succession proceedings overlap with disputes concerning land or proprietary rights.

Conclusion

Contentious probate and succession disputes in Kenya involve much more than determining who receives an inheritance.

A disputed estate may require the court to determine whether a Will is valid, whether a testator had testamentary capacity, whether a Will was procured through fraud or undue influence, whether a dependant has been adequately provided for, whether a claimant qualifies as a beneficiary, whether an administrator has properly discharged their duties, or whether a disputed asset actually forms part of the deceased's estate.

Most importantly, not every dispute involving an estate is necessarily a succession dispute for determination within the probate court.

The proper approach is to identify the real issue, determine the applicable legal remedy, assess the evidence required, and establish the appropriate forum at the earliest possible stage.

Early and accurate identification of these issues can prevent unnecessary litigation, reduce procedural delays and help protect the value of the estate for those ultimately entitled to it.

This article is intended for general information only and does not constitute legal advice. The appropriate legal strategy will depend on the facts and circumstances of each estate.

Exemption of Public Educational Institutions from County Land Rates in Kenya

Public educational institutions, including public schools, are generally exempt from county land rates where the land is used for the statutory exempt purpose. The exemption is now expressly provided for under section 38 of the National Rating Act, No. 15 of 2024, which came into force on 24 December 2024.

However, the precise position depends on the nature and use of the land, the period for which rates are being demanded, the ownership of the property and whether any part of the land is being used for profit or residential purposes.

1. The current statutory exemption

The principal provision is section 38 of the National Rating Act, 2024.

Section 38(2) provides that a County Executive Committee Member shall not charge rates for land used exclusively for public purposes.

More specifically, section 38(3)(d) provides that valuation for purposes of rating shall not be conducted in respect of land used for “public educational institutions and libraries.”

This is a significant statutory protection for public schools.

Accordingly, where land is genuinely used as a public educational institution, the County ordinarily has no basis for subjecting that land to valuation for purposes of imposing ordinary land rates under the National Rating Act.

The exemption is, however, subject to the proviso in section 38 that the exemption does not apply to land used for profit or residential purposes.

2. The exemption existed under the previous law

Where a County Revenue Authority is demanding arrears relating to a period before 24 December 2024, the applicable legislation must also be considered.

Before the National Rating Act came into force, the relevant provisions were contained in the Valuation for Rating Act, Cap. 266.

Section 27(1)(d) of that Act provided that no valuation for rating purposes was to be made in respect of land used directly and exclusively for:

“educational institutions (including public schools within the meaning of the Basic Education Act...)”

The provision also extended to residences of students provided directly by educational institutions or forming part of, or ancillary to, educational institutions.

The statutory proviso excluded land used for profit or, subject to specified exceptions, residential purposes.

The former Rating Act, Cap. 267 also operated together with the Valuation for Rating Act in the rating regime.

The Rating Act and Valuation for Rating Act were subsequently repealed by the National Rating Act, 2024, which commenced on 24 December 2024.

Consequently, where a County is demanding historical arrears, it is important to identify the particular years for which the rates are allegedly due rather than treating the entire demand as governed by the current Act.

3. The courts have recognised the exemption for educational institutions

There is a particularly relevant Kenyan decision on this issue.

In Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR, the Environment and Land Court at Machakos considered a rates demand of approximately Kshs. 58 million in respect of property used for religious and educational purposes.

The County argued, among other things, that the schools operating on the property were commercial institutions because students paid fees.

The court rejected that argument on the evidence before it. Justice Angote held that section 27(1)(d) of the Valuation for Rating Act exempted land used for educational purposes, subject to the statutory exclusion relating to land used for profit.

Importantly, the County had not produced evidence demonstrating that the schools were being operated for profit. The court consequently held that the demand for rates was unlawful and granted the relief sought by the applicant.

The decision is particularly useful because it demonstrates that the mere fact that students pay school fees does not, without more, establish that land is being used for profit for purposes of the statutory rating exemption.

The critical question is the actual character and purpose of the use of the land.

4. “Public school” and “commercial school” should not automatically be treated as the same

The distinction between a public educational institution and a private or commercial educational enterprise is important.

Section 38(3)(d) of the National Rating Act expressly refers to public educational institutions and libraries.

Therefore, where the property is occupied and used by a public school for ordinary educational purposes, the statutory exemption is considerably stronger.

A County Revenue Authority should not simply assume that land is rateable because:

• students pay fees;
• the institution collects money;
• the institution has income;
• the institution operates a school canteen;
• the school has boarding facilities; or
• the school has other incidental revenue-generating activities.

The legal question is whether the land is being used for the exempt educational purpose or whether it is being used for a separate profit-making purpose within the meaning of the statutory proviso.

The decision in Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR is useful in this respect because the court required evidence establishing that the school was in fact operated for profit before the exemption could be displaced.

5. Incidental commercial use may require separate consideration

The exemption should not, however, be interpreted as an absolute exemption covering every activity conducted on land belonging to a public school.

For example, a school may have land containing:

• classrooms and laboratories;
• administration offices;
• teachers' accommodation;
• boarding facilities;
• playing fields;
• a school library; and
• other facilities directly connected with education.

These uses would ordinarily have a strong connection with the educational purpose.

But suppose part of the school's land is separately leased to a commercial entity for a supermarket, petrol station, commercial office, private residential development or other independent profit-making enterprise.

The County may then have an arguable basis for treating that portion differently.

The wording of section 38 must therefore be applied to the actual use of the particular land or portion of land rather than merely to the identity of the registered proprietor.

6. Payment of fees does not necessarily destroy the exemption

This is an issue likely to arise where the County argues that a school cannot be exempt because it collects fees.

That argument should be approached carefully.

The fact that an educational institution receives fees does not necessarily mean that the land is being used for profit.

In Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR, the County made substantially that argument. The court nevertheless found that the County had failed to establish that the schools were being operated for profit and held the rates demand unlawful.

The focus should therefore be on the purpose and character of the land use, rather than merely the existence of revenue.

For a public school, this distinction is particularly important because the collection of fees or other statutory charges may form part of the financing of educational services without converting the institution into a profit-making commercial enterprise.

7. Ownership of the land is also important

The legal analysis should also establish who owns the land.

There is an important distinction between:

• land registered in the name of the National Government;
• land held by a county government;
• land vested in another public body;
• land registered in the name of a school or educational trust; and
• privately owned land upon which a public school operates.

The treatment of public land may involve the statutory regime concerning contribution in lieu of rates, rather than ordinary rates imposed on private rateable property.

Under the former regime, for example, section 25 of the Valuation for Rating Act dealt with the basis upon which public land was valued for purposes of contributions in lieu of rates.

The current National Rating Act contains its own provisions concerning public land and contributions in lieu of rates.

Consequently, before responding to a County's demand, the school's title and the legal status of the land should be established.

8. The County cannot rely solely on its valuation records

The fact that a property appears on a County valuation roll or rates account does not necessarily resolve the question of whether the property is legally rateable.

If the property falls within a statutory exemption, the County must apply the exemption.

This principle is particularly relevant where a public school has been incorrectly entered as an ordinary rateable property.

In Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR, the County sought to justify its demand partly on the basis of its records concerning the property's use. The court nevertheless considered the statutory exemption and the evidence concerning the actual use of the property.

A school receiving a rates demand should therefore ask the County to identify:

1. the statutory provision under which the rates are demanded;
2. the valuation roll in which the property appears;
3. the registered owner;
4. the assessed rateable value;
5. the period to which the demand relates;
6. the basis upon which the County considers the land to be rateable;
7. whether the County alleges that the land is being used for profit; and
8. the evidence supporting that allegation.

9. The constitutional framework

County governments derive their power to impose property rates from Article 209(3)(c) of the Constitution of Kenya, 2010.

That provision gives county governments power to impose property rates.

However, the power to impose rates is not unlimited.

The County must exercise its rating power within the framework established by national legislation, including the National Rating Act and any applicable county legislation.

The principle that a public authority must act within the limits of the power conferred upon it is well established in Kenyan administrative law.

In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court affirmed the fundamental principle that jurisdiction is derived from the Constitution or statute and cannot simply be assumed.

Similarly, in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR, the Court of Appeal emphasised the importance of legality and lawful exercise of statutory powers by public bodies.

A County Revenue Authority therefore cannot impose or recover a charge merely because its internal records indicate that an amount is outstanding. The demand must have a lawful statutory foundation.

10. What should a public school do upon receiving a rates demand?

A public school that receives a rates demand should not simply ignore it.

A formal objection or response should be prepared identifying the statutory exemption and providing evidence of the school's status and use of the property.

The response should ordinarily attach, where available:

• the title or lease;
• evidence establishing that the institution is a public school;
• registration or establishment documents;
• evidence showing the actual use of the property;
• the school's physical development or site plan;
• relevant correspondence with the County;
• previous exemption correspondence, if any; and
• the County's rates demand and relevant valuation records.

The school should expressly invoke section 38(3)(d) of the National Rating Act, 2024 where the demand concerns the current rating regime.

For historical demands, the response should additionally invoke section 27(1)(d) of the former Valuation for Rating Act, Cap. 266, where applicable.

11. The position in summary

The legal position can therefore be summarised as follows:

First, public educational institutions are expressly recognised as exempt from valuation for rating purposes under section 38(3)(d) of the National Rating Act, 2024.

Second, land used exclusively for public purposes is protected under section 38(2).

Third, the exemption is subject to the statutory qualification concerning land used for profit or residential purposes.

Fourth, for periods governed by the previous rating regime, section 27(1)(d) of the Valuation for Rating Act, Cap. 266 expressly exempted land used directly and exclusively for educational institutions, including public schools.

Fifth, the decision in Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR provides useful judicial authority on the application of the educational-institution exemption and demonstrates that the County must establish the factual basis for alleging that an educational institution is being operated for profit.

Sixth, the ownership and actual use of the land must be examined carefully, particularly where the property is public land or where only part of the property is used for educational purposes.

Conclusion

A County Revenue Authority cannot properly demand ordinary land rates from a public school without considering the statutory exemption applicable to public educational institutions.

Where the land is used for the public educational function, section 38 of the National Rating Act, 2024 provides a clear statutory basis for exemption from valuation and rating.

Where the demand relates to an earlier period, the corresponding exemption under section 27(1)(d) of the Valuation for Rating Act, Cap. 266 should be considered.

The strongest response to a rates demand should therefore not merely state that the school is “government property” or that it is a “public institution.” It should establish the ownership, statutory status and actual use of the land, identify the applicable rating legislation for each period claimed, and expressly invoke the statutory exemption.

Where the County alleges that the property is being used for profit, the school should require the County to identify the factual and legal basis for that allegation. The decision in Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR demonstrates the importance of evidence on this issue.

Accordingly, where a public school has received a substantial rates demand, the matter should be formally challenged rather than the demand being accepted at face value.

Legal Review:- When Trust Is the Job Description: What Kenyan Employment Decisions Mean for Employees and Employers

By Z.O.G

When trust is the job description, accountability is part of the legal standard.

Employees entrusted with an employer's financial resources, sensitive information, supervisory authority or operational controls occupy a particularly important position within an organisation. Their responsibilities often extend beyond the ordinary performance of contractual duties. They are expected to exercise judgment, diligence and fidelity commensurate with the trust placed in them.

But there is an equally important legal principle on the other side of the employment relationship: the seriousness of an allegation does not dispense with the employer's obligation to conduct a fair disciplinary process.

Recent Kenyan employment jurisprudence illustrates this balance. The courts have recognised the legitimate expectations placed upon employees occupying positions of responsibility while simultaneously insisting that employers establish the factual basis for alleged misconduct and provide employees with a genuine opportunity to respond.

Three themes emerge with particular clarity.

1. Employees in Positions of Financial or Supervisory Trust Are Held to a Higher Standard

An employee's responsibilities matter when assessing alleged misconduct.

Where an employee is entrusted with financial resources, transaction approvals, supervision of other employees, institutional assets or sensitive operational functions, the consequences of a failure to exercise appropriate care may be significantly more serious than an equivalent lapse by an employee with limited responsibility.

This is particularly apparent in banking and other financial institutions, where employees operate within systems of authorisation, verification, segregation of duties, audit controls and compliance requirements.

The law does not, however, impose an abstract or unlimited duty of perfection. The relevant question is whether the employee failed to discharge duties that actually formed part of their role and whether the alleged failure was sufficiently serious to constitute a valid ground for disciplinary action.

The role of the employee matters

In assessing alleged negligence or misconduct, employers should therefore identify precisely:

• what responsibilities were assigned to the employee;
• what level of authority the employee possessed;
• what financial or supervisory responsibilities accompanied that authority;
• what policies or controls governed the employee's functions;
• whether the employee was aware of those requirements; and
• how the alleged conduct departed from the standard reasonably expected of someone in that position.

The distinction is important.

An employee who merely processes information may not bear the same responsibility as an employee authorised to approve a transaction. Similarly, a supervisor may have obligations to detect, prevent or report irregularities that would not ordinarily fall upon a junior employee.

Accordingly, the employee's position is relevant to determining the standard against which the conduct should be assessed.

2. Negligence Does Not Automatically Equal Gross Misconduct

Employers should also be careful not to equate every failure to follow procedure with gross misconduct.

A disciplinary allegation must be supported by evidence and assessed in context.

Section 44 of the Employment Act, 2007 recognises circumstances in which an employee's conduct may justify summary dismissal, including certain forms of wilful neglect or careless and improper performance of duties.

But whether conduct crosses that threshold is a question of fact.

For an employee occupying a position of financial trust, the Court may reasonably take into account the seriousness of the responsibility entrusted to that employee. A negligent failure affecting a critical financial control may be substantially more serious than an isolated administrative error.

The employer should nevertheless establish the connection between:

the employee's responsibility → the applicable safeguard → the alleged breach → and the resulting risk or consequence.

A disciplinary case becomes considerably stronger when that chain is supported by contemporaneous documentation.

3. Employers Must Establish the Reason for Termination

The fact that an employer genuinely suspects misconduct is not, by itself, sufficient.

Section 43 of the Employment Act places the burden upon the employer to prove the reason or reasons for termination.

The Court of Appeal in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR emphasised the distinction between the employer's right to terminate employment and the statutory requirement that termination be substantively and procedurally fair. The subsequent Supreme Court proceedings in Kenfreight (E.A.) Limited v Benson K. Nguti [2019] eKLR further demonstrate the importance of the statutory framework governing termination. Kenya Law+1

The practical lesson is significant.

An employer should not proceed from the allegation:

"The employee was responsible, therefore the employee must be at fault."

Instead, the employer should be able to demonstrate, through evidence, why the employee's conduct constituted a breach of the applicable standard.

This is especially important in cases involving negligence, because negligence often turns upon what the employee knew, what the employee was required to do, what the employee actually did and whether the omission or conduct was reasonably attributable to the employee.

4. Meaningful Disclosure Is Part of a Fair Disciplinary Process

Perhaps one of the most important lessons from Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR concerns disclosure.

The case arose from allegations surrounding the PostaPay product and financial losses suffered by the Postal Corporation. A forensic audit had identified issues relating to the product and the conduct of senior management.

The Court of Appeal considered the requirements of procedural fairness under Section 41 of the Employment Act.

The significance of the decision extends beyond its particular facts.

An employee cannot reasonably be expected to answer allegations where the material facts underlying those allegations are withheld from them.

This is particularly important where an employer relies upon:

• an audit report;
• an investigation report;
• transaction records;
• emails or correspondence;
• customer complaints;
• system-generated records;
• witness statements;
• financial reconciliations; or
• other documentary evidence.

If the employer intends to rely materially upon such evidence in reaching a disciplinary decision, fairness requires the employee to be given sufficient information about the case they are required to answer.

The Court of Appeal's approach is therefore better understood as requiring meaningful disclosure rather than a merely formal invitation to attend a disciplinary hearing. Kenya Law+1

5. A Disciplinary Hearing Must Be Meaningful, Not Merely Formal

There is a crucial distinction between giving an employee a hearing and giving an employee a meaningful opportunity to be heard.

An employer may technically invite an employee to a disciplinary meeting, but if the employee has not been given adequate information about the allegations or material relied upon, the opportunity to respond may be illusory.

This is consistent with the Court of Appeal's treatment of Section 41 in Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR.

The disciplinary process is not required to replicate a court trial. Nevertheless, procedural fairness requires that an employee understand the allegations and be afforded a reasonable opportunity to respond to them.

The principle was subsequently reiterated in Kenyan employment jurisprudence. The courts have continued to treat disclosure of the case to be answered and a genuine opportunity to respond as central elements of procedural fairness. Cliffe Dekker Hofmeyr+1

6. Internal Investigations Should Precede Disciplinary Action

The importance of investigation is equally significant.

An employer should ordinarily establish the factual basis of an allegation before deciding that an employee is culpable.

In Ruth Mungai v Kache Limited [2018] KEELRC 419 (KLR), the Court emphasised that it is not sufficient merely to make allegations of misconduct. The employer should have internal systems and processes for investigating and verifying the alleged misconduct before arriving at the decision to terminate. Kenya Law

This principle has particular relevance to financial misconduct cases.

Where a transaction has gone wrong, for example, the employer should establish:

• who initiated the transaction;
• who reviewed it;
• who authorised it;
• what controls applied;
• whether those controls were followed;
• whether the employee had authority to act;
• whether another employee was involved;
• whether the employee raised any concerns;
• whether the system itself contributed to the error; and
• whether there is evidence of negligence, recklessness or deliberate misconduct.

The purpose of an investigation is not simply to build a case for dismissal. It is to establish what actually happened.

7. Documentation Is the Employer's Best Defence

A recurring practical lesson from these decisions is the importance of documentation.

In a subsequent claim before the Employment and Labour Relations Court, the employer will ordinarily need to demonstrate both the substantive basis for the decision and the fairness of the procedure followed.

That makes the disciplinary record critically important.

For an employer, the record should ideally demonstrate a clear chronology:

complaint/allegation → investigation → evidence gathered → employee notified → disclosure → employee's response → consideration of response → disciplinary decision → reasons for decision.

The absence of this documentary trail can create significant difficulty.

For example, if an employer asserts that an employee ignored a particular financial control, the employer should ideally be able to produce the policy or procedure establishing the control, evidence that the employee was aware of it, evidence of the relevant transaction and evidence connecting the employee to the alleged breach.

A general statement that an employee "failed in their responsibilities" may be considerably weaker than a properly documented evidentiary record.

8. The Employer's Belief Must Have an Evidentiary Foundation

The decision in Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others [2019] eKLR is also important when considering the employer's state of mind in termination decisions.

The courts recognise that an employer does not necessarily have to prove misconduct to the criminal standard. Employment disputes operate within the statutory framework governing fairness and the applicable civil standard.

However, the employer's belief that misconduct occurred must have a proper factual foundation.

The employer should therefore be able to demonstrate the material that informed its decision.

This is particularly important where the allegation is based on suspicion.

Suspicion may trigger an investigation. It should not ordinarily substitute for one.

9. Positions of Trust Do Not Create Automatic Liability

The phrase "position of trust" should therefore be used carefully.

It does not mean that an employee holding a senior or sensitive position is automatically liable whenever something goes wrong.

Nor does it mean that the employer can dispense with procedural fairness.

Instead, the employee's position helps determine the standard of responsibility reasonably expected of them.

For example, where an employee has express responsibility for verifying a transaction before authorisation, evidence that the employee failed to conduct the required verification may be highly relevant.

But if the employee's role did not include the relevant verification, or if the employer's own systems permitted the transaction without the employee's intervention, the analysis becomes different.

The employer must therefore establish responsibility rather than simply infer it from seniority.

10. What This Means for Employees

Employees occupying positions of financial or supervisory trust should recognise that their responsibilities may expose them to heightened scrutiny.

They should:

• understand the policies governing their functions;
• comply with approval and verification requirements;
• maintain records of decisions and instructions;
• raise concerns where procedures cannot reasonably be followed;
• avoid informal workarounds to established controls;
• report suspected irregularities promptly; and
• preserve relevant correspondence and documentation.

Where disciplinary proceedings are commenced, the employee should also insist upon clarity regarding the allegations and the material relied upon, particularly where the allegations are based upon an audit or investigation.

A meaningful defence requires knowledge of the case being answered.

11. What This Means for Employers

For employers, particularly banks and other regulated institutions, the lesson is equally clear.

A robust disciplinary process should be capable of surviving scrutiny after the event.

Employers should therefore consider adopting a process that ensures:

1. Clear expectations

Employees should have written job descriptions and clearly communicated policies.

2. Proper investigation

Allegations should be investigated before disciplinary conclusions are reached.

3. Meaningful disclosure

The employee should receive sufficient information and relevant material to understand and answer the allegations.

4. A genuine hearing

The employee's representations should actually be considered.

5. Evidence-based decision-making

The disciplinary decision should identify the evidence supporting the finding.

6. Proportionality

The sanction should be considered against the seriousness and circumstances of the misconduct.

7. A complete record

The employer should maintain a coherent documentary trail demonstrating both substantive justification and procedural fairness.

12. The Broader Legal Lesson

The Kenyan jurisprudence demonstrates that employment disputes involving positions of trust are not determined by choosing between two simplistic propositions:

"Employees in positions of trust must be accountable."

or

"Employees must always be protected from dismissal."

Both propositions are incomplete.

The law requires a balance.

An employee entrusted with substantial responsibility may properly be held to a high standard of performance, care and compliance. At the same time, the employer must establish the factual basis for disciplinary action and comply with the statutory requirements governing fair termination.

The stronger the allegation, the more important the quality of the investigation and documentation.

This is particularly true where an employer alleges negligence rather than deliberate misconduct. Negligence requires a careful examination of the employee's actual responsibilities, the applicable standard, the circumstances of the alleged failure and the evidence connecting the employee to it.

Conclusion

The recent Kenyan employment jurisprudence sends a clear message to both sides of the employment relationship.

For employees occupying positions of financial or supervisory trust, trust carries responsibility. The more sensitive the role, the greater the expectation that the employee will observe the controls and safeguards entrusted to them.

For employers, however, responsibility does not eliminate due process.

A disciplinary hearing must be more than a procedural formality. An employee must know the substance of the allegations and be afforded a genuine opportunity to answer them. Where an employer relies upon an audit, investigation or other material evidence, meaningful disclosure becomes particularly important.

And for both sides, documentation matters.

The best disciplinary process is one in which the record tells a coherent story:

What was the employee required to do? What allegedly went wrong? What evidence established that? Was the employee told the case against them? What was their response? Was that response considered? And why was the final decision reached?

Where those questions can be answered clearly and contemporaneously, the employer is in a substantially stronger position to demonstrate fairness. Where they cannot, even an allegation involving a position of significant trust may become difficult to sustain.

Key Applicable Kenyan Authorities

• Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR.
• Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR; Kenfreight (E.A.) Limited v Benson K. Nguti [2019] eKLR.
• Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others [2019] eKLR.
• Ruth Mungai v Kache Limited [2018] KEELRC 419 (KLR).
• Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR.
• Walter Ogal Anuro v Teachers Service Commission [2013] eKLR.

Disclaimer: This article is intended for general information only and does not constitute legal advice. The applicable law and outcome will depend on the facts and circumstances of each individual matter.

Struck Off Does Not Mean Written Off: A Creditor’s Right to Restore a Company in Kenya

The striking off of a company from the Register of Companies may appear, at first glance, to bring the company's affairs to an end. For creditors, however, the position is more nuanced.

A company being struck off does not necessarily mean that its creditors have lost their rights or that an outstanding debt has become irrecoverable. Kenyan company law provides a mechanism through which a dissolved company may, in appropriate circumstances, be restored to the Register, allowing creditors to pursue claims that might otherwise be frustrated by the company's dissolution.

The recent decision in Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2025] KEHC 3942 (KLR), together with Kathambo & Another (Suing as the Legal Representatives of Kihome Muthui (Deceased)) v Amarshan Limited & Another [2026] KEHC 4138 (KLR) and Agnator Kanini v Mwalimu Mamundi Autoparts Ltd & Another [2017] eKLR, demonstrates the willingness of the Kenyan courts to protect legitimate creditor interests where a company has been struck off.

What Happens When a Company Is Struck Off?

A company may be struck off the Register through various statutory mechanisms, including voluntary striking off.

Once a company is dissolved, it ceases to exist as a legal entity in the ordinary sense. This can create an immediate practical problem for a creditor. A creditor may have an unpaid debt, contractual claim or even an existing court judgment against the company, but the debtor company may no longer appear on the Register.

The creditor should not, however, assume that the debt has disappeared.

The Companies Act, 2015 provides a statutory route for restoring a dissolved company to the Register. The purpose of this mechanism is, among other things, to ensure that legitimate claims are not defeated merely because the company has been removed from the Register.

Creditors Can Apply for Restoration

Section 916 of the Companies Act, 2015 is particularly important to creditors.

The provision recognises a creditor of a company at the time it was struck off or dissolved as a person who may apply for restoration.

This is significant because it means that a creditor does not necessarily have to accept the company's dissolution as the end of its recovery efforts.

A creditor may approach the High Court seeking restoration where the statutory requirements are met.

The position was considered in Agnator Kanini v Mwalimu Mamundi Autoparts Ltd & Another [2017] eKLR.

In that case, the applicant had obtained a decree against the company. The company was subsequently struck off the Register, thereby creating an obstacle to execution.

The High Court ordered restoration of the company so that the decree-holder could pursue enforcement.

The case is particularly important because it demonstrates that restoration is not merely an administrative remedy. It can have a direct and practical purpose: to enable a creditor to enforce an otherwise valid claim or judgment.

Failure to Notify Creditors Can Have Serious Consequences

The statutory procedure for voluntary striking off contains safeguards designed to protect creditors.

Section 900 of the Companies Act, 2015 imposes notification requirements in relation to an application for voluntary striking off.

Where a company applies to be struck off without complying with those requirements, the omission may provide grounds for restoration.

This issue was considered in Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2025] KEHC 3942 (KLR).

The Kenya Revenue Authority sought restoration of the company after it had been struck off while owing tax liabilities.

The High Court considered the statutory notification requirements and found that the company had failed to comply with the obligation to notify the Kenya Revenue Authority of the striking-off application.

The Court consequently ordered restoration of the company to the Register.

The decision is an important reminder that the statutory process of striking off cannot properly be used to prejudice creditors who are entitled to notice under the Companies Act.

What If the Creditor Already Has a Judgment?

The position becomes particularly compelling where the creditor has already obtained judgment or a decree against the company.

A judgment creditor has already established its legal entitlement to recover the debt. If the judgment debtor is subsequently struck off, dissolution may create a procedural barrier to execution.

This was the situation in Agnator Kanini v Mwalimu Mamundi Autoparts Ltd & Another [2017] eKLR.

The Court recognised that restoration could be ordered to facilitate execution of the decree.

The same principle has more recently been considered in Kathambo & Another (Suing as the Legal Representatives of Kihome Muthui (Deceased)) v Amarshan Limited & Another [2026] KEHC 4138 (KLR).

The Court ordered restoration of the company notwithstanding arguments concerning the absence of demonstrated assets.

This is significant for creditors because a creditor may not always know, before restoration, what assets or recoverable interests a company possesses.

Requiring a creditor to identify and prove the existence of assets before restoration could create a circular problem: the creditor may need the company to be restored precisely so that its affairs and assets can be properly investigated.

The recent decision in Kathambo therefore reinforces the practical importance of restoration as a means of enabling creditors to pursue available remedies.

Restoration Is Not the Same as Piercing the Corporate Veil

It is important to distinguish restoration from imposing personal liability on directors or shareholders.

A company is a separate legal person from its members and directors. The mere fact that a company has been struck off does not automatically make its directors personally responsible for the company's debts.

Restoration is instead concerned primarily with reviving the company's legal status so that its assets, liabilities and legal affairs can properly be dealt with.

If there are independent grounds for pursuing directors personally—for example, under a personal guarantee, fraud or another recognised legal basis—that is a separate question requiring its own legal analysis.

The Court's "Just" Jurisdiction

The Companies Act, 2015 also gives the Court a broader discretionary jurisdiction to restore a company where it considers restoration to be just.

This is important because not every case will fit neatly into a single factual category.

The Court may consider the circumstances surrounding the striking off, the interests of creditors, the existence of pending claims, the effect of dissolution on legal proceedings and other relevant circumstances.

The principle was recognised in Re Queensway Investments Limited [1995] 1 EA 231, an authority subsequently considered in Agnator Kanini.

The underlying rationale is straightforward: the statutory process for removing companies from the Register should not become an instrument of injustice.

Where dissolution would unfairly deprive a creditor of a legitimate claim, restoration may provide the appropriate remedy.

Is Restoration Automatic?

No.

A creditor does not acquire an automatic right to restoration merely because a company owes it money.

The creditor must satisfy the statutory requirements and demonstrate grounds upon which the Court may properly exercise its jurisdiction.

The Court will consider the circumstances of each case, including the manner in which the company was struck off and the nature of the creditor's claim.

Accordingly, creditors should act promptly once they discover that a debtor company has been struck off.

What Should a Creditor Do?

Where a creditor discovers that a debtor company has been struck off, the following steps should ordinarily be considered:

1.      Obtain an official company search to establish the company's status and the date on which it was struck off.

2.      Establish how the company was struck off, including whether the process was voluntary.

3.      Establish whether the creditor received notice of the proposed striking off.

4.      Review the underlying debt or claim, including any contract, invoices, correspondence and acknowledgements of indebtedness.

5.      Establish whether judgment has already been obtained and, if so, obtain the relevant judgment and decree.

6.      Investigate whether the company has assets or other recoverable interests, including property, debts owed to it, contractual rights or pending litigation.

7.      Consider an application for restoration under the Companies Act, 2015 where the statutory grounds are satisfied.

8.      Act within the applicable statutory and limitation periods.

Practical Implications for Creditors

The decisions discussed above provide an important practical lesson.

A creditor who discovers that a debtor company has been struck off should not immediately write off the debt.

Instead, the creditor should determine whether restoration is available.

This is particularly important where:

• the creditor was not notified of the proposed striking off;
• the debt existed before dissolution;
• the creditor has already obtained a judgment or decree;
• the company may have assets or recoverable contractual rights;
• the striking-off procedure may not have complied with the Companies Act; or
• restoration would otherwise be necessary to prevent injustice.

The courts' approach in KRA v Dream Dressing, Kathambo and Agnator Kanini demonstrates that restoration can be a meaningful remedy rather than a purely technical exercise.

Conclusion

Being struck off the Register is not necessarily the end of the road for a company's creditors.

The Companies Act, 2015 recognises circumstances in which a dissolved company may be restored, and the Kenyan courts have demonstrated a willingness to exercise that jurisdiction where restoration is necessary to protect legitimate creditor interests.

The decisions in Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2025] KEHC 3942 (KLR), Kathambo & Another (Suing as the Legal Representatives of Kihome Muthui (Deceased)) v Amarshan Limited & Another [2026] KEHC 4138 (KLR) and Agnator Kanini v Mwalimu Mamundi Autoparts Ltd & Another [2017] eKLR are particularly instructive.

The central lesson for creditors is therefore simple:

A company may be struck off, but that does not necessarily mean that a legitimate debt is written off.

Where the statutory requirements are satisfied, restoration may provide the creditor with a route back to the debtor company and an opportunity to pursue the remedies available under Kenyan law.

Key Authorities

• Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2025] KEHC 3942 (KLR).
• Kathambo & Another (Suing as the Legal Representatives of Kihome Muthui (Deceased)) v Amarshan Limited & Another [2026] KEHC 4138 (KLR).
• Agnator Kanini v Mwalimu Mamundi Autoparts Ltd & Another [2017] eKLR.
• Re Queensway Investments Limited [1995] 1 EA 231.

Disclaimer: This article is intended for general information only and does not constitute legal advice. The circumstances of each case should be considered independently and professional legal advice obtained before taking action.

Restoration of a Struck-Off Company and Creditors’ Rights

The striking off of a company from the Register of Companies does not necessarily extinguish the rights of its creditors or bring an end to the remedies available to them.

Under the Companies Act, 2015, a company that has been dissolved following striking off may, in appropriate circumstances, be restored to the Register. Restoration may therefore provide a creditor with a means of reviving the company's legal existence for purposes of pursuing a claim or enforcing a debt.

The High Court considered the statutory safeguards applicable to striking off and restoration in Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2021] eKLR. The decision underscores the importance of complying with the statutory procedure governing the removal of companies from the Register and the legal consequences that follow upon dissolution.

The Court's consideration of the statutory framework demonstrates that striking off should not be viewed as an absolute bar to the enforcement of a creditor's rights. Where the statutory conditions for restoration are satisfied, the company may be restored to the Register, with the effect that the legal consequences prescribed by the Companies Act follow from such restoration.

The position may therefore be stated as follows:

The dissolution or striking off of a company does not, in every case, permanently extinguish the rights of its creditors. A creditor may, subject to the statutory requirements and applicable limitation periods, seek restoration of the dissolved company to the Register and thereafter pursue the company's outstanding liabilities.

Authority:

1. Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2021] eKLR.