The effects of the law of the succession (Amendment) Act, 2021 on succession in Kenya

The President assented to the Law of Succession (Amendment) Act, 2021 which was subsequently passed into law on 17th November 2021. In essence the Act amends Section 3 of the Law of Succession Act [LSA] by:

  1. Introducing the definition of a ‘Spouse within the meaning of the Law of Succession Act to include

The amendment introduces a new dimension by defining a ‘Spouse’ as a husband or wife, or wives, recognized under the Marriage Act. This means that the only persons who will be recognized as spouses for purposes of inheritance are those persons who were engaged in a legally recognized marriage with the deceased prior to his death. Therefore, under the Marriage Act, 2014 the types of marriage that will be recognized after the amendment to the LSA would be Christian, Customary, Civil, Hindu and Islamic marriages. Consequently, this amendment will have the effect of bringing succession matters under the purview of the Marriage Act. Accordingly, a person claiming to be a beneficiary/dependant by virtue of marriage would have to prove they are a spouse under the Marriage Act. This will in turn ensure that only unions recognized under the Marriage Act, 2014 are units for succession under the LSA.


In conclusion, these amendments to the LSA, though welcome, contradict some provisions under the same Act, since the law is interpreted and applied as a whole not in partiality. Firstly, the LSA still maintains that a ‘wife’ includes a wife who is separated from her husband and the terms ‘husband’ and ‘spouse’ to have a corresponding meaning. The amendments neither deleted this provision nor amended it. Thus Section 3(1) of the LSA on the definition of wife thus contradicts with the new amendment to the LSA and it would raise ambiguity on application of the Act in contentious succession matters.

Secondly, this new provision appears not cure the problem created by Section 3(5) of the LSA. The said section recognizes that a woman married under a polygamous setting by a husband who had already contracted a monogamous marriage to another woman is nevertheless recognized as wife and or dependant for purposes of inheriting the estate of the husband including children of the said marriage. In essence Section 3(5) protects a woman who would otherwise not be a valid spouse under the marriage Act but recognizes that she has beneficial interest in the estate of the deceased contradicting the recent amendment of the LSA.

Consequently, will the ‘spouse’, as introduced by the amendment, include the ‘wife’ as defined under section 3 and or under section 3(5) of the LSA? If so, then does a former wife still pass as a spouse for purposes of succession as anticipated by the LSA? Since the LSA is the main law governing succession, these contradictions lead to an ambiguity that should be resolved to ensure effective succession procedures. Therefore, there needs to be subsequent reforms to the LSA in order to cure the uncertainty created by these amendments as read with the current provisions of the Ac

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