Mwenda Njagi

Tips on what you need to know about the Law of Succession

The Law of Succession is governed by the laws succession Act CAP160 laws of Kenya which came into place around 1981 to address the concerns of how one can distribute the wealth of a deceased person.

• Njagi explains that when somebody dies, he dies in two ways. One with a Will or without a Will.

When a loved one dies, most family members are left fighting for the property and do not know about a law that guides the succession process.

According to lawyer Peter Njagi, who is also a Judiciary accredited mediator in the High Court Milimani, the Law of Succession is governed by the laws succession Act CAP160 laws of Kenya which came into place around 1981 to address the concerns of how one can distribute the wealth of a deceased person. 

Njagi explains that when somebody dies, he dies in two ways. One with a Will or without a Will.

“When you die with a will, you find something called intestate succession. You could also die with a will, but it is set aside or revoked so that now you dilate someone who was not in the will, which is an intestate succession,” he explains in a question and answers interview with the Star.

How do you file a succession case for somebody who died without a will?

When you die, intestate succession kicks in sometimes the will is revoked by the court. For example, there was no signature, maybe there was duress, somebody was saying the need to flee, or maybe the beneficiary has not signed, because for it to be valid, it needs to be signed by somebody who is independent, to your benefit. 

The first thing is that you go to the area chief of where that person ordinarily resided. The chief duty is something called a letter of recognition, to say, I know Person X, at the point of his death, he used to live in my location, and he left the following persons as his beneficiaries. 

What happens thereafter?

With that letter from the chief, then you file, something we call letters of administration. You list all the assets of the deceased and all the liabilities he had because you should disclose both, then thereafter, you also need the beneficiaries who are going to inherit these properties from the deceased. After that, you should now have it gazetted, a gazette notice is issued for six months. 

Why does it have to be gazetted and within what duration?

It should be filed within six months, the law and the courts want to ensure that if anybody who has a claim on that test, is given the opportunity to come forth, and it is presumed you have read the case you should have read the gazette notice as it and you should know the person died. So that you could come and say, look, at the point of death your Mzee had sold me some property Y and had paid, so that property has not been transferred. 

So you should not list it as part of your asset, because it has already had been sold. That’s what gives you an opportunity. You could also be saying your family succession but the dad passed on and had an illegitimate son, and I was based, in Mombasa and here and I know he’s my father. So I must be listed also as a beneficiary by virtue of being a biological child. You could also come and say I was a mistress or a wife, and as a benefit, or a former wife and I should also benefit.

What happens if nobody files a protest or somebody who has read a click on that interstate?

The court calls you and asks each beneficiary individually and sometimes in practice, they ask you to be accompanied with an ID, and with the advent of the online practice system, you could also have the confirmed in chambers or wherever you are, if the court is satisfied, you are not an imposter so it asks you if you agree that the grant is confirmed.

Because by that time now, after six months, then you’d like to file out summons where you appoint someone called an administrator, whose work is very simple, he wears the shoes of the deceased. He is supposed to distribute and keep that word and underline it. He can distribute, he’s not supposed to benefit, he can benefit but as opposed to pursuing the wholeness that is he can distribute as he wishes or the beneficiaries will also agree property X will go to child one, property Z goes down to three, you itemize, so, that after that itemization that means that now is what will be filed the forms are to do some forms for transfer, which are commonly known as form RL seven and form RL 14, which is formed through transmission. 

What happens thereafter?

After that, they now have a certificate of confirmation or grant, which you now use to transfer the property or to go to the bank and collect money. So, that is what succession means. 

What happens to a succession case with a will?

Attested succession has a will. The Will simply means it is the wishes of the deceased or the wishes of the maker. With the Will, the Law has empowered the deceased to distribute the property even when you’re six feet under. 

Because an intestate a family meets like a Baraza, to agree. And if you don’t agree, then the court move kicks in now you’re the one to dictate and you distribute the asset as you wish. 

And if the cause of filing is valid, then we just file something called a grant of probate, and the grant is adapted as a court record and as a court order. 

What should a Will contain?

What is important about a Will is that you should provide for all beneficiaries and the wife who is a beneficiary for life. This is because there is a first-class, second-class beneficiary.

And sometimes they say even if you have a child who you don’t like, or somebody who has taken as your own child, but maybe have a stand against you, do not disinherit a child, because the moment you don’t provide for any child is a ground to revoke the entire Will.

The court in pursuant to article 159 of the constitution, which promotes alternative dispute resolution, good order court, and mediation, which means now, the final is a particular to the mediator, who’s got to supervise and maybe come back and tell the court findings, or what has come as the outcome.

There are three possible outcomes. 

One, you could have a full settlement, meaning you have agreed with points 123 and four. So you go back to the court, or the magistrate or the judge, and that one is adopted as the judgment of the court, full settlement.

You could also have a partial settlement, saying you agree with point 123 but four and five, not agreed. So the court will record a concept to that extent, then four and five leave to the court for determination, or there could be no consent at all. So that now you say it is futile, you tried it failed. So what you’re requesting that the court make, is its finding.

If this person comes after, the court is interested to know where you were because the court also doesn’t want an insolent person or somebody who has been sitting on their rights.

You can say it was during the Covid season, a moment when restricted travel was imposed, ready to print the card if you moved from America or wherever you are overseas, it took you a while and they kept you in the dark. So the court is satisfied and can also revoke. 

The other thing is that a child was not provided for and maybe is part of the interstate. What is important is that you are taking somebody like your own, because I’ve said the beneficiary is a child.

A child is in two ways: it may be your biological or adopted child. 

So, the question arises as that child means, you can inherit property or land.

How much does it cost to file a succession case?

If the asset is below Sh20 million, you file to the magistrate court, if it’s below Sh20 million, about Sh2 million go to the High Court. 

The other thing to mention is intermeddling; this is an offense, for example, you hear that some people want to meddle with the property even before the person is buried. 

The brother comes and takes a stool, sister comes and picks up the clothes of the deceased, that one is illegal. You should not deal with the assets of the deceased before the filing of a succession case. Because that one is intermeddling.

Source: https://www.the-star.co.ke/news/2022-03-30-tips-on-what-you-need-to-know-about-the-law-of-succession/