Death is certain, but confusion after death does not have to be. In Kenya, many family disputes arise not because property is insufficient, but because there was no clear plan for how it should be shared. Succession law therefore serves two key purposes: it allows individuals to decide how their property will be distributed, and it protects close family members from being unfairly excluded. The legal framework governing these issues is primarily found in the Law of Succession Act (Cap 160), interpreted considering the Constitution of Kenya. Together, these laws balance testamentary freedom with the protection of dependants.
A will can be defined as a record of deceased persons intentions and wishes pertaining to devolution of his or her property upon death. It can be oral or written as defined by section 8 of the Succession Act. The making of a will avoids the roots of intestacy, gives direction with regards to the disposal of the deceased person’s property, it simplifies administration where it is easy for the named executor to apply for grant of probate, it gives effect to testamentary freedom and avoids family conflict and disputes.
This was heavily evidenced in Rono vs Rono & Another [2025], Where the court ruled that a deceased estate worth 192 acres must be distributed equally among all children and widows, regardless of gender. It established that daughters have equal maintenance rights to sons, overturning the disputes caused by customary practices.
Who is a Dependant Under Kenyan Law?
Section 29 of the Law of Succession Act defines dependants to include spouses and children automatically, whether they were being maintained immediately before death, other relatives such as parents, siblings, or grandchildren who must prove that they were financially dependent on the deceased.
Importantly, children are entitled to equal treatment regardless of gender or whether they were born within or outside marriage. Courts have consistently reinforced this principle, particularly after the adoption of the Constitution of Kenya, which guarantees equality and freedom from discrimination under Article 27.
Even where a valid will exists, the court retains power under Section 26 of the Law of Succession Act to intervene if reasonable provision has not been made for a dependant. This means that testamentary freedom is not absolute.
On 30th June 2025, the Supreme Court of Kenya issued a groundbreaking ruling in SC Petition No. E035 of 2023, Fatuma Athman Abud Faraj vs. Ruth Faith Mwawasi & 2 Others [2024] KESC 61 (KLR), marking a historic turning point in the legal treatment of children born out of wedlock within Muslim intestate succession. The Court affirmed that such children, where paternity is acknowledged during the deceased’s lifetime, have an equal right to inherit. This decision aligned personal law with constitutional guarantees of equality, dignity, and child protection.
It is important to note that exclusion from a will does not invalidate it. However, if all the assets have already been bequeathed and the dependants were unjustly excluded, reasonable provision cannot be made under the will.
A similar position was taken by the Court of Appeal in Marete v Marete & 3 others [2024] KECA 371 (KLR), the Court of Appeal at Nyeri where the court was confronted with a will that, although formally valid, distributed the deceased’s estate in a manner that heavily favoured one house of the family over another. The judges emphasised that while the law respects a person’s freedom to dispose of their property as they wish that freedom is not absolute. Under Sections 26 and 28 of the Law of Succession Act, courts retain the power to intervene where a will fails to make reasonable provision for dependants.
Ultimately, succession law in Kenya seeks to balance personal autonomy with family responsibility. While individuals are free to distribute their property, the law ensures that dependants are treated with fairness, dignity, and equality.