It is also referred to as the law of inheritance i.e. transmission of property rights from the dead to the living. Most of the dependants are family members but this is not an aspect of family law. This area of law deals with the transmission of property from the dead to the living. Inheritance is common in all human societies and is a concept of universal application. It is driven by the desire to acquire property. It is one of the ways of acquiring property because when a person dies, the right to enjoy property dies with him.
Control is another aspect such as giving instructions on how the property will be divested after their death. Most people exercise this control. Philosophical decisions behind succession are the right of the owner to control that property even after death and he can do so through a will. The main function of succession is to provide mechanisms for the transmission of property from the deceased to those who survive him. It involves:
(a) Identifying the legal claimants who can claim the property i.e. who are the rightful claimants
(b) The procedures of which such rightful claimants or dependants succeed to the property of the deceased i.e. what steps they need to take so as to acquire the property of the deceased.
(c) Mechanisms for dispute resolution are provided so as to resolve any conflicts between persons who claim to be rightful claimants.
Each community or society has its own set of rules though inheritance is a universal concept. In Kenya, we have the Law of Succession Act (LSA), which is of general application, but other laws do apply such as Islamic law and customary law, which have been exempted by the Act. Although the Hindu law has not been exempted by the Act, it still applies informally in practice. A uniform law has not been achieved because of the diversity of Kenyans.
During the colonial period different laws applied. Various statutes applied to the various communities at that time such as to the Europeans, Africans, Hindus and Muslims. The advent of independence saw an attempt at moving towards uniformity i.e. an attempt to consolidate the laws of succession into one statute catering for the various peoples of Kenya. This culminated in the enactment of the LSA in 1972. This was an attempt to bring to an end differential treatment of people carried out during the colonial period. After independence, emphasis was on equality and enactment of the LSA was an attempt at this equality. It was brought into effect in 1981. The Marriage Bill was not accepted.
As for the LSA, the Bill was passed in 1972 but because some of its provisions were dependent on the Marriage Act it had to wait until the Marriage Bill was passed e.g. customary law is recognized which is a concept alien to English Law. The law on the matrimonial bill introduced concepts that would have harmonized it with the LSA e.g. provisions in the Matrimonial Bill allowed a statutory monogamous marriage to be converted to a polygamous marriage. This was not allowed by S 37 of the Marriage Act.
The LSA was intended to protect such wives who were married under customary law by husbands already married under statutory law like the cases of Ruenji and Ogola’s Estate. Section 3(5) of the LSA states that such wives can be said to be wives of succession irrespective of what section 37 of the Marriage Act states.
The Affiliation Act was repealed in the 1960s as it was to cater for children born out of wedlock. The failure to pass the law on the Matrimonial Bill has rather caused an untidy situation as the current Marriage Act and Matrimonial Causes Act are not in harmony with the LSA i.e. are inconsistent. This is based on the fact that most dependants are family members, the Act should be in harmony. Inconsistency is evident in S 3(5) LSA, S 37 Marriage Act, and ACMDA. The statutes deny men the right to contract other marriages by virtue of the interpretation in Re Ogolla’s Estate and Re Ruenji’s Estate. This means that once they marry under the statute, they cannot contract marriage under customary law.
Under S 3(5) of the LSA, it states that during the lifetime of the deceased, they are not considered as wives but once he dies then they are considered as wives for purposes of succession. The statutory wives are put at a disadvantage because the woman who is not recognized as a wife during the lifetime of her husband is given recognition as a wife after his death. This situation would have been avoided had the Matrimonial Bill passed. The Bill states that before a husband takes a second wife he would need the consent of the first wife.
See: Muigai v Muigai 95 – 98 E.A. 206 - S 3(5) LSA was interpreted as circumventing S 37 Marriage Act and S 4. It was held S. 37 Marriage Act only bars the husband from subsequently contracting other marriages but does not bar wives subsequently married from inheriting from the deceased’s estate.
Therefore, whereas the LSA is ready to embrace the traditional African principles the Marriage statutes remain as they were during the colonial period espousing English principles of Marriage and Divorce. In practice, courts tend to resolve such conflicts in favour of customary law.
Irene Njeri Macharia v Margaret Wairimu Njogu and Anor Civ. A. 139/94
Court of Appeal held: An earlier decision by the High Court in the case of the estate of Reuben Nzioka Mutua was bad law.
See: HC Probate & Administration No. 843/1986
The deceased had contracted a statutory marriage in 1961. In 1980, he purported to contract another marriage during the subsistence of an earlier marriage. He left a will giving his entire estate to his statutory wife and left out his latter wife. His second wife challenged this under S 3(5) LSA arguing she was a wife.
Held: By virtue of S 37 Marriage Act and S 4 Cap 151, the deceased had no capacity to marry a second wife under customary law and therefore she was not a wife, following the decision i.e. for purposes of succession.
The inconsistency remains because the Marriage statutes have not been amended to bring them in line with the Succession Act. Areas closely related to Succession Law are Property Law, Family Law etc. The relationship of the deceased and the person claiming to be a dependant are relevant e.g. if a wife or a child, you have to look at the system of Marriage if any or whether the child is a dependant under the Children’s Act.
Trust law is also relevant especially when it comes to the Administration/Management of deceased’s property. It entails 1) the collection of assets 2) settling debts and 3) settling the estate/distribution to dependants. The administrator stands in a fiduciary relationship in carrying out his functions therefore he is a trustee. The Trustee Act covers both administrators and trustees, so does the Trust for Land Act. Equitable remedies e.g. Tracing are often used by administrators and beneficiaries to recover property of the estate that may have been paid out wrongly i.e. to people who are not beneficiaries of the deceased.