Quote from Lawyer on July 3, 2025, 8:00 am

In Kenya, the Law of Succession Act, Cap 160, governs the distribution of a deceased person's estate, whether through a will (testate succession) or without one (intestate succession). A critical aspect of this legislation is the protection it offers to dependants who may be excluded from a will or inadequately provided for under intestacy laws. Section 26 of the Act is pivotal in ensuring that dependants can seek reasonable provision from a deceased’s estate, even if they are omitted from a will. This article explores dependants' rights under Section 26, examines recent court rulings, and discusses the principles of fair distribution in Kenyan succession law.

Section 26 of the Law of Succession Act provides a mechanism for dependants to challenge the disposition of a deceased person’s estate if they believe it does not make reasonable provision for them. The section states:

"Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased’s net estate."

This provision grants courts significant discretion to intervene when a will (or intestate distribution) fails to adequately provide for dependants. The court may order a specific share of the estate, periodical payments, or a lump sum, depending on the circumstances, as outlined in Section 27 of the Act. Additionally, Section 28 provides factors for courts to consider, such as the nature of the estate, the dependant's financial needs, and their relationship with the deceased.

Who Qualifies as a Dependant?

Under Section 29 of the Law of Succession Act (as amended by the Law of Succession (Amendment) Act, 2021), a dependant is defined as:

1. The spouse and children of the deceased, whether or not they were maintained by the deceased immediately prior to death.

2. Other relatives, such as parents, step-parents, grandparents, grandchildren, step-children, siblings, and half-siblings, who were being maintained by the deceased immediately before their death.

3. Other persons not explicitly listed in Section 29, provided they can prove they were maintained by the deceased for at least two years prior to the deceased’s death.

This definition ensures that immediate family members have an automatic claim, while other relatives or individuals must demonstrate dependency through maintenance. For instance, illegitimate children, adopted children, and children born out of wedlock are explicitly recognized as dependants, provided they were accepted or maintained by the deceased (Section 3(2)).

Court’s Role in Ensuring Fair Distribution

The Kenyan judiciary plays a crucial role in interpreting and applying Section 26 to ensure fair distribution. Courts have the discretion to adjust the estate’s distribution to provide for dependants who were unfairly excluded or inadequately provided for. The principle of fairness, however, does not mandate equal distribution. As noted in legal commentary, while equal splitting is the standard for children in intestate succession, courts may adjust shares based on compelling justifications, such as the dependant's needs or their role in caring for the deceased.

Key Considerations in Court Decisions

When determining reasonable provision, courts consider several factors under Section 28, including:

• The nature and size of the estate: Courts assess the value and composition of the estate to determine what constitutes reasonable provision.

• The dependant's financial position and needs: This includes their current and future financial requirements, such as education or medical expenses.

• The relationship with the deceased: Courts evaluate the closeness of the relationship and the extent of dependency.

• The deceased’s intentions: While testamentary freedom is respected, courts may override a will if it fails to provide reasonably for dependants.

• Conduct of the dependant: Any relevant conduct, such as contributions to the deceased’s welfare, may influence the court’s decision.

Recent Court Rulings on Dependants’ Claims and Fair Distribution

Recent court rulings provide insight into how Kenyan courts apply Section 26 to ensure fair provision for dependants. Below are notable cases that illustrate the judiciary’s approach:

1. Succession Cause 634 of 2013 (2020)

In this case, the court addressed a situation where the third administrator failed to provide for certain dependants listed in the petition for a grant of representation. The applicants, who were the deceased’s parents, lodged a protest against the confirmation of the grant, arguing they were entitled to a share of the estate. The court ruled in their favor, declaring them dependants under Section 26 and ordering reasonable provision from the estate. The court emphasized that the administrator’s failure to include known dependants was unjust, highlighting the court’s inherent powers to ensure fairness. The ruling underscored that dependants listed in official documents, such as the chief’s introductory letter, must be considered during estate distribution.

2. Succession Cause 9 of 2018 (2020)

This case involved a dispute between a daughter-in-law and a nephew claiming dependency on the deceased’s estate. The daughter-in-law, married to the deceased’s son, argued she was entitled to inherit as a close relative, while the nephew claimed dependency under Section 29(b). The court ruled that the daughter-in-law ranked higher in priority due to her closer degree of consanguinity and affinity. The nephew’s claim was dismissed because he failed to prove consistent maintenance by the deceased, as required under Section 29. This case clarified that dependency claims by non-immediate family members require substantial evidence of maintenance.

3. Succession Cause E012 of 2021 (2022)

In this case, an applicant sought to establish dependency for two minors, claiming the deceased had maintained them by paying school fees and contributing to their upkeep. The respondents argued that the applicant failed to prove the minors were part of the deceased’s family or that he had assumed permanent responsibility. The court dismissed the application, emphasizing that dependency under Section 26 requires a “reasonable degree of permanency” in the deceased’s responsibility, as per EMM vs IGM & Another [2014] eKLR. The ruling highlighted the high evidentiary burden for non-spouse, non-child dependants.

4. Civil Appeal 14 of 2020 (2021)

This appeal involved a widow of the deceased’s son (the first appellant) and another individual claiming dependency through land occupation. The trial court had ruled that the widow was not a direct beneficiary, as grandchildren typically inherit through their parents. However, the appellate court recognized the widow’s right to hold her late husband’s share in trust for her children, reinforcing that dependants under Section 29 may include those with indirect claims through deceased beneficiaries. The second appellant’s claim was rejected due to insufficient evidence of dependency, illustrating the court’s strict scrutiny of such claims.

5. In the Matter of the Estate of Elizabeth Wanjiku Munge (2015)

This case involved a beneficiary, Rita Field-Marsham, who sought to renounce her share of her father’s estate. The court allowed her disclaimer, noting that beneficiaries cannot be forced to accept an inheritance. This ruling indirectly supports Section 26 by affirming that dependants have the autonomy to accept or reject provisions, but it also highlights the court’s role in ensuring that such decisions do not disadvantage other dependants.

Challenges in Applying Section 26

While Section 26 provides a robust framework for protecting dependants, its application faces challenges:

• Evidentiary Burden: Non-spouse and non-child dependants must prove maintenance for at least two years, which can be difficult without clear documentation. Cases like Succession Cause E012 of 2021 demonstrate the high threshold for establishing dependency.

• Cultural Dynamics: Kenya’s diverse familial structures, including polygamous unions, complicate dependency claims. Courts must balance statutory provisions with customary practices, as seen in Section 40, which governs estate distribution in polygamous families.

• Testamentary Freedom vs. Fairness: Section 5 of the Act grants testamentary freedom, allowing individuals to distribute their estate as they wish. However, courts may intervene if this freedom results in unreasonable exclusion of dependants, creating tension between the deceased’s wishes and dependants’ rights.

Fair Distribution in Practice

The principle of fair distribution under Section 26 does not necessarily mean equal distribution. Courts prioritize reasonable provision based on need and dependency. For example, in intestate succession, Section 40 ensures that polygamous estates are divided among households based on the number of children and surviving spouses, with each counted as a unit. In testate succession, courts may adjust a will’s provisions to ensure fairness, as seen in Succession Cause 634 of 2013, where the court ordered provision for excluded dependants.

Recent amendments to the Law of Succession Act (2021) have strengthened protections for legitimate dependants by clarifying the definition of a spouse and requiring non-listed dependants to prove maintenance. These changes aim to prevent opportunistic claims while ensuring that genuine dependants, such as spouses and children, are prioritized.

Conclusion

Dependants in Kenya have a clear legal pathway to claim inheritance under Section 26 of the Law of Succession Act if they are excluded from a will or inadequately provided for. The courts’ discretionary powers, guided by Sections 27 and 28, ensure that reasonable provision is made based on the dependant's needs, the estate’s size, and their relationship with the deceased. Recent court rulings, such as those in Succession Cause 634 of 2013 and Civil Appeal 14 of 2020, demonstrate the judiciary’s commitment to fairness while imposing a high evidentiary burden on non-immediate dependants. As Kenya’s succession laws evolve, they continue to balance testamentary freedom with the need to protect vulnerable dependants, ensuring equitable outcomes in diverse familial contexts.

For legal advice or assistance with succession matters, contact us at +254 716 808 104 or info@lawguide.co.ke for expert guidance tailored to your specific situation.