Committal Of A Bill - Law Of Succession ( Amendment ) Bill, 2023

SPECIALISSUE

Kenya GazetteSupplementNo.70(SenateBillsNo.20)

REPUBLICOFKENYA

KENYAGAZETTESUPPLEMENT

SENATEBILLS,2023

| NAIROBI,19thMay,2023 | NAIROBI,19thMay,2023 | |----------------------------------------|------------------------| | CONTENT | CONTENT | | BillforIntroductionintotheSenate- | PAGE | | TheLawofSuccession(Amendment)Bill,2023 | 499 |

THELAWOFSUCCESSION(AMENDMENT)BILL, 2023

A Bill for

ANACTofParliamenttoamend the LawofSuccession Act; and for connected purposes.

• 1.This Act may be cited as the Law of Succession (Amendment) Act,2023.

ENACTEDby theParliamentofKenya,asfollows-

• 2.Section3of the Lawof SuccessionAct, hereinafter referred to as the"principal Act", is amended

"child" includes an adopted child and a child whoisconceivedduringthelifetimeofadeceased person and is subsequentlyborn after the death of the deceased person;

• (a) in subsection (1) by inserting the following new definitions in their proper alphabetical sequence-

"intermeddling"means-—

• (a) taking possession of, disposing off, charging, receiving, distributing,leasing or usingpropertyof a deceasedwithout authorityunder this Actoranyother applicable law;
• (b) ejecting a surviving spouse or child from the matrimonial home; or
• (c)any unlawful dealing with the deceased person's estate;

"matrimonial home" means any property that isownedorleasedbyoneorbothspousesand occupiedorutilizedbythespousesastheirfamily home; and includes any other attached property;

• (b)by deleting subsection (2); and
• (c)by deleting subsection (3).
• 3.The principal Act is amended by repealing section

Shortitle.

Amendmentof section3ofCap 160.

33.

• 4.The principal Act is amended by repealing section
• 5.Section 35 of the principal Act,is amended—
• (a) in subsection (1) by—
• (i) inserting the words"subject to subsection (1A) at the beginning of paragraph (b); and
• (ii) deleting the proviso; and
• (b)by inserting thefollowing new subsections immediately after subsection (1)—
• (1A) Theinterest of the surviving spouse under subsection(1)(b) shall determineuponremarriage.
• (1B) Notwithstanding subsection (1),——
• (a)where the surviving child is nota child of the survivingspouse-
• G the surviving spouse shall be entitled to thepersonalandhouseholdeffects ofthedeceasedabsolutelyandalife interestinone-halfofthewhole residue of the netintestate estate;and
• thesurvivingchildshallbeentitledto one-halfof thewholeresidueofthe netintestateestatewhichshallbeheld in accordancewith section 41,and if there be more than one child they shall share equally;
• (b)where the surviving children include a childwho isnot a child of the surviving spouse-—
• (i the surviving spouse shall be entitled tothepersonalandhouseholdeffects ofthe deceased absolutely;
• ii) the net intestate estate shall,in the first instance, be divided equally amongst the surviving spouse and all the surviving children;
• (i) the surviving spouse shall have a life interestinhisorhershareandthatof his or her children under subsection (1B)(b)(ii); and

Repeal of section 33of Cap160.

Amendment of section35ofCap 160.

• (iv)the share of the surviving childwho is nota child of the surviving spouse under subsection (1B)(b)(ii) shall be held inaccordance with section 41, and if therebemore thanonechild they shall share equally.
• (c)by deleting subsection (5) and substituting thereforthefollowingnewsubsection-
• (5)Subjectto theprovisionsofsections 41 and 42 and to any appointment or award made under this section,the wholeresidue of thenetintestate estateshall,on the death or re-marriage of the surviving spouse, devolve upon the surviving child,if there be only one,orbe equallydivided among the surviving children.
• 6.Section36 of the principal Act is amended-
• (a) in subsection (1) by ——
• (i)inserting the words"subject to subsection(1A) at the beginning of paragraph (c); and
• (ii) deleting theproviso;and
• (b)byinsertingthefollowing new subsection immediatelyafter subsection(1)—
• (1A) The interest ofa surviving spouse under subsection (1)(c)shall determineuponremarriage.
• (c)by deleting subsection(3) and substituting therefor the following new paragraph--
• (3)Uponthedeterminationofalifeinterest createdunder subsection(1),theproperty subject tothatinterestshalldevolveinthefollowingorder of priority-
• (a)father and mother in equal shares;or if eitheris dead;
• (b) the surviving parent;
• (c)brothers and sisters,and any child or childrenofdeceasedbrothersandsisters, in equal shares;

Amendmentof section36ofCap 160.

• (d) half-brothers and half-sisters and any childorchildrenofdeceased half-brothers and half-sisters,in equal shares;or
• (e)therelativeswho are in thenearest degree of consanguinity up to and including the sixth degree,in equal shares.
• 7.Section 39 of the principal Act is amended in subsection (1)——
• (a)by deleting paragraph(a) and substituting therefor thefollowingnewparagraph
• (a)father and mother in equal share;or,ifeither is dead;
• (b) by deleting paragraph (b) and substituting therefor thefollowingnewparagraph
• (b) surviving parent;or if none
• 8.Section 40of the principal Act beamended by inserting thefollowingnewsubsectionimmediatelyafter subsection (2)——
• (3)Notwithstanding subsection (1),where anyofthesurvivingchildrenisnotachildofany ofthewivesofthe deceased,thatchild shall—
• (a)be considered as an additional unit in determiningtheshareofdependantsin the net intestate estate under subsection (1); and
• (b)the shareof such child shall beheld in accordance with section 41,and if there bemore thanone child they shall share equally.

Amendment of section39ofCap 160.

Amendmentof section40ofCap 160.

MEMORANDUMOFOBJECTSANDREASONS

Statementof the Objects andReasonsfor theBill

Theprincipal objectof thisBill is to amend the Law ofSuccession Acttoeliminatediscriminationindistributionofthepropertyof the deceased.To achievethis,theBillseekstoamendsection3(2)andrepeal discriminativeagainstadoptedchildren andchildrenwhohavenotbeen expresslyrecognizedand acceptedbytheirfather.Thiswill ensure thatthe LawofSuccessionActcomplieswiththeprovisionsofArticle53ofthe Constitution which provides for the equal care,protection and responsibilitytowardschildrenbybothparentsregardlessoftheirmarital status.

TheBillfurtherseeks toprotectchildrenof thedeceasedwhose

motherwasnotawifeof thedeceasedbyensuringthattheyare consideredasadditionalunitsandtheirshareoftheestatedevolves to them at the time of succession.The Bill also seeks to eliminate discriminationagainstwidows,as theylose lifeinterestin their deceased's spouse'spropertyuponremarriagewhereaswidowers donot.The Court haspreviouslyfoundsection35and36oftheActtobeunconstitutional for discrimination on thebasisofgender.TheBill thusensures that the widowandwidowerlosetheirlifeinterestinthewholeoftheremainder ofthenetintestateestateoncetheyre-marry.

Additionally,theBill seekstoensure thatwhere theparentsofthe deceased areentitled to inherit their deceased child's estate,both the mother and thefatherreceive anequal shareof theestate.The Courthas previouslyfound section39 tobeunconstitutional in sofar as itgives fathers theprioritywhen it comesto inheriting thepropertyof their deceasedchild.

TheBill further seeks to excludecommunitylandfromthe ambit of succession.

Statementon thedelegationoflegislative powersand limitation of fundamentalrightsandfreedoms

TheBilldoesnotdelegatelegislativepowersnor doesit limit the fundamentalrightsandfreedoms.

Statement on how theBill concernscountygovernments

TheBill dealswith succession matters which essentially touch on

landandothermovableandimmovablepropertyofadeceasedperson. Successionmattershaveimplicationson thewell-beingofmembersofthe societyespeciallydependantsof thedeceasedperson.Thestabilityand continuityoflifeofthedependantsofadeceasedpersoncontributegreatly to theeconomyandsecurityofacounty.TheBill is thereforeaBill concerning county governmentin terms of Article 110(1)(a)of the Constitution.

Statement that theBill is not a money Bill,within the meaning of Article114oftheConstitution

ThisBill isnot amoneyBillwithin themeaningofArticle114of the Constitution.

Dated the 12th April, 2023.

VERONICAMAINA, Senator.