🔊 Listen: A practical guide to contested estates in Kenya (4 min audio summary)
The loss of a loved one brings grief, but it can also bring conflict. Questions about who should administer the estate, whether a will is valid, and how property should be shared can divide even the closest families.
In Kenya, these disputes are governed primarily by the Law of Succession Act (Cap 160) and the Probate and Administration Rules, read together with the Constitution of Kenya, 2010. Understanding how the law treats contested estates in Kenya helps beneficiaries protect their rights early, avoid costly mistakes and approach the court with a clear strategy.
What Makes a Succession Matter Contentious?
A succession matter becomes contentious when one or more interested persons dispute the process or its outcome. Common triggers include:
- A challenge to the validity of a will
- A dispute over who should be appointed administrator
- Allegations that some beneficiaries were left out of the petition
- Disagreement over how the estate should be distributed
- Claims that estate property was taken or sold without authority
Challenging a Will
Section 5 of the Act allows any adult of sound mind to dispose of their free property by will. Where someone alleges that the deceased lacked sound mind, the burden of proving it rests on the person making that allegation.
A will may also be challenged on formal grounds. Section 11 requires a written will to be signed by the testator and attested by at least two competent witnesses, each of whom saw the testator sign or received the testator’s acknowledgement of the signature. Section 7 goes further, declaring a will void where it was caused by fraud, coercion or such importunity as takes away the free agency of the testator, or where it was induced by mistake.
Even a valid will is not always the final word. Under section 26, a dependant who has not been reasonably provided for may ask the court to make reasonable provision from the net estate. Section 29 defines dependants to include the spouses and children of the deceased, among others.
Objecting to a Grant of Representation
Before the court issues a grant, section 67 requires a notice inviting objections, allowing at least thirty days. Anyone with a genuine interest may lodge an objection within that period under section 68, after which the court directs the objector to file an answer to the petition and a cross petition. This is the earliest, and often the most effective, opportunity to raise concerns about who is seeking to administer the estate.
Where the deceased died without a will, section 66 guides the court on who should administer, giving preference first to surviving spouses, then to other beneficiaries according to their entitlement, then to the Public Trustee and finally to creditors. The court nonetheless retains discretion.
Confirmation and Distribution
A grant of letters of administration does not by itself authorise distribution of the capital of an estate. Under section 71, the administrator must apply for confirmation, ordinarily after six months from the date of the grant. In an intestate estate, the court will not confirm the grant until it is satisfied as to the identity of all beneficiaries and their respective shares. For this reason, confirmation hearings frequently become the stage on which distribution disputes are fought.
Case Brief: Mary Rono v Jane Rono & Another [2005] eKLR
Court of Appeal at Eldoret, Civil Appeal No. 66 of 2002, judgment delivered 29 April 2005
Facts: Stephen Rono died intestate in 1988, survived by two widows and nine children, six daughters and three sons. The High Court distributed his land in a manner that gave the sons substantially larger shares than the daughters, relying in part on Marakwet customary law and on the reasoning that daughters could marry.
Issue: Whether customary law could justify giving daughters a smaller share of their father’s estate than sons.
Holding: The Court of Appeal allowed the appeal. It held that the estate was governed by the Law of Succession Act, not customary law, and that the constitutional prohibition of discrimination on the basis of sex applied. The possibility that daughters may marry was only one factor among others for the court to weigh, not a determining one. The Court redistributed the estate on a fairer basis.
Significance: Rono remains one of the most cited authorities on equal inheritance rights in Kenya. Its reasoning is reinforced today by Article 27 of the Constitution of Kenya, 2010, which guarantees equality and freedom from discrimination, and by Article 60(1)(f), which calls for the elimination of gender discrimination in law, customs and practices related to land and property.
Revoking a Grant That Was Wrongly Obtained
Section 76 permits the court to revoke or annul a grant at any time, whether or not it has been confirmed, either on the application of an interested party or on its own motion. The grounds include:
- The proceedings to obtain the grant were defective in substance
- The grant was obtained fraudulently by making a false statement or concealing something material
- The grant was obtained by means of an untrue allegation of fact essential in law, even if made in ignorance
- The administrator failed to apply for confirmation within one year, to proceed diligently with administration, or to produce required inventories or accounts
- The grant has become useless and inoperative
A Warning on Intermeddling
Section 45 makes it an offence for anyone, without authority under the law or a grant, to take possession of, dispose of or otherwise intermeddle with the free property of a deceased person. Beyond criminal liability, that person is answerable to the rightful personal representative. Families should therefore avoid selling, leasing or transferring estate property without proper legal authority.
Resolving Disputes Without Prolonged Litigation
Contested estates can take years to resolve and can drain the very assets the family is fighting over. Article 159(2)(c) of the Constitution directs courts to promote alternative forms of dispute resolution, including mediation, and succession disputes are increasingly referred to court annexed mediation. Where litigation is unavoidable, early legal advice, a complete record of the deceased’s assets and liabilities, and timely objections make a significant difference.
Practical Steps for Beneficiaries
- Obtain the death certificate and identify all assets, liabilities and beneficiaries
- Confirm with the court registry whether a petition has been filed
- Watch the Kenya Gazette for notices relating to the estate
- Lodge any objection within the notice period
- Keep records of any dealings with estate property
- Seek legal advice before signing consents or distribution proposals
Speak With Our Succession and Probate Team
At Otwal & Partners LLP, we advise families, executors and beneficiaries on contested wills, objections, revocation of grants and the fair distribution of estates. If you are dealing with a disputed estate, contact our team for a confidential consultation.
Disclaimer: This article is provided for general information only and does not constitute legal advice. Reading it does not create an advocate and client relationship with Otwal & Partners LLP. The law may change and every estate turns on its own facts, so please seek advice specific to your circumstances before taking any action.