Over the past three years, the Law of Succession which is the primal law on inheritance has been undergoing review to realign rights clearly espoused in the constitution of Kenya and other relevant laws that have since been enacted. On 17^th November 2021, President Uhuru Kenyatta assented to the Law of Succession (Amendment) Bill 2019. The bill was sponsored by Hon. George Peter Kaluma, Member of Parliament Homa Bay Town constituency.

The Bill has introduced at Section 2 (1) the term “spouse”, which means a husband or a wife or wives recognized under the Marriage Act. The marriage act recognizes five kinds of marriages in Kenya: Christian, Civil, Customary, Hindu and Islam. All these marriages require registration and a certificate subsequently issued as proof of marriage.

Additionally, the Bill has amended Section 29 of the Law of Succession Act (LOSA) so that dependants are categorized as follows: –

1. Primary dependants under Section 29 (1)(a) including the spouse and children of the deceased whether or not maintained by the deceased immediately prior to his death. This category of persons need not prove that they were being maintained by the deceased immediately prior to their death.

The above provision as an amendment locks out former spouses from being recognized as dependants without qualification.

1. Secondary dependants under Section 29 (1)(b) including parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, half-brothers and half-sisters as were being maintained by the deceased prior to his death.
2. Other dependants under Section 29 (2) who must prove that they were being maintained by the deceased for a period of two years prior to the deceased’s death.

The sub-section is a complete overhaul of the previous position that provided for the third group of dependants to be a husband provided he was being maintained by the deceased prior to her death. The purport of the amendment in whole would be that husbands now fall under Section 29 (1)(a) and need not prove maintenance.

Issues arising

Under the memorandum of objects and reasons for the bill, it is stated that: –

1. The bill aims to avoid situations where “opportunistic schemers successfully claim a stake in a deceased person’s estate hence disenfranchising the legitimate heirs of the deceased.”
2. The bill seeks to provide clarity on who a dependant is.

Direct consequences of these provisions are that: –

1. Former wives are no longer recognized as dependants and have to prove that they were being maintained by the deceased for a period of two years prior to the deceased’s death per Section 29 (2).
2. Widowers are now recognized as primary dependants and need not prove that they were being maintained by the deceased immediately prior to their death.
3. Proof of support from a deceased person is capped to a minimum period of two years.

Issues that equally arise from this amendment demonstrate that for the bill to meet its purpose entirely, there ought to have been several interlinked amendments to the act and not just one sole amendment. This is discussed below: –

1. The amendment conflicts with Section 3 (5) of LOSA, which recognizes women married under systems that permit polygamy where the husband had contracted a previous subsequent monogamous marriage to another woman to be a wife for purposes of succession. Section 3 (5) implies that women who are otherwise in void marriages will be considered wives in inheritance matters. Indeed, women who find themselves in these circumstances should be recognized as wives for purposes of succession, but what the amendment does, instead of securing a rightful beneficiary, is to take a moral position. See Section 29 (1)(a) that refers to spouse (and not wife), which has been defined under Section 2(1) to mean a husband or wife or wives recognized under the marriage Act.

On the other end, the amendment can be said to include cohabiting persons as they could claim under the new Section 29 (2).

1. The amendment fails to identify the evolving relationships and responsibilities that would give other persons a greater interest in an estate as compared to family members. For instance, Section 39 (1) states that where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred in order of priority, including parents, brothers and sisters or their surviving children, step-brothers and sisters or their surviving children, half-brothers and sisters or their surviving children or any other relative up to the sixth degree of consanguinity.

Section 39 (1) is not a reflection of and cannot be read with Section 29 (2), thereby creating a gap regarding the inheritance rights of non-blood relations who may have benefited from the deceased during their lifetime.

Opportunities available and way forward

The bill is already receiving heavy criticism for singling out a moral issue instead of having a wholesome perspective. It fails to deliver an equitable approach. Even then, the bill offers a few opportunities, including: –

1. Amplifying public education and awareness efforts on the provisions of the Marriage Act and especially on the need to formalize marriages.
2. Amplifying public education and awareness efforts on the provisions of the Matrimonial Property Act and especially on the acquisition and ownership of property within marriage and the division of property upon dissolution of marriage.
3. Researching on the aspect of “other dependants”, especially regarding proving dependence.

We are of the opinion that a lot should have been done to this primal law on succession through a complete overhaul of all the discriminatory sections within the act which submissions and content were within submitted memoranda while the bill was still under review. What about issues touching on discrimination within the act and the rights to dignity and inclusion that the LOSA does not encompass? Why this one section on dependants? Is it for the public good, does it result in the protection of the most vulnerable seeking their inheritance rights? A lot still needs to be done, especially for the groups that have constantly faced violations of their inheritance rights within and outside courts.

By

Jessica Oluoch

Programme Manager, WLPR

Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)

Nyalenda Railways Estate, Block 9/220

Off Nairobi Road, Opposite YMCA

P.O. Box 7708| 40100 Kisumu – Kenya

Email: joluoch@kelinkenya.org

AND

Gaudence Were

Programme associate, WLPR

Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)

Nyalenda Railways Estate, Block 9/220

Off Nairobi Road, Opposite YMCA

P.O. Box 7708| 40100 Kisumu – Kenya

Email: gaudencewere@kelinkenya.org