The Law of Succession ( Amendment) Bill, 2023

SPECIAL ISSUE

Kenya Gazette Supplement No. 70 (Senate Bills No. 20)

REPUBLIC OF KENYA

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KENYA GAZETTE SUPPLEMENT

SENATE BILLS, 2023

NAIROBI, 19th May, 2023

CONTENT

Bill for Introduction into the SenatePAGE The Law of Succession (Amendment) Bill, 2023 ................................. 499

PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI

THE LAW OF SUCCESSION (AMENDMENT) BILL, 2023

A Bill for

AN ACT of Parliament to amend the Law of Succession Act; and for connected purposes.

ENACTED by the Parliament of Kenya, as follows-

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

2. Section% 3% of% the% Law% of% Succession% Act,% hereinafter%referred%to%as%the%'principal%Act',%is%amended-%

• (a) ! in% subsection% (1)% by% inserting% the% following% new% definitions%in%their%proper%alphabetical%sequenceF%

'child'%includes%an%adopted%child%and%a%child% who%is%conceived%during%the%lifetime%of%a%deceased% person%and%is%subsequently%born%after%the%death%of% the%deceased%personH%

'intermeddling'%means%-%

• (a) ! taking% possession% of,% disposing% off,% charging,% receiving,% distributing,% leasing% or% using% property% of% a% deceased% without% authority% under% this% Act% or% any% other% applicable%lawH%
• (b) ! ejecting%a%surviving%spouse%or%child%from% the%matrimonial%homeH%or%
• (c) ! any% unlawful% dealing% with% the% deceased% person's%estateH%

'matrimonial%home'%means%any%property%that% is% owned% or% leased% by% one% or% both% spouses% and% occupied%or%utilized%by%the%spouses%as%their%family% homeH%and%includes%any%other%attached%propertyH%

• (b) ! by%deleting%subsection%(2)H%and%
• (c) ! by%deleting%subsection%(3).%

3. The%principal%Act%is%amended%by%repealing%section% 32.%

Short title.

Amendment of section 3 of Cap 160.

Repeal of section 32 of Cap 160

4. The%principal%Act%is%amended%by%repealing%section% 33.% 5. Section%35%of%the%principal%Act,%is%amended%-% 3. (a) ! in%subsection%(1)%by%-% 4. (i) ! inserting% the% words% 'subject% to% subsection% (1A)%at%the%beginning%of%paragraph%(b)H%and% 5. (ii) ! deleting%the%provisoH%and%% 6. (b)%by% inserting% the% following% new% subsections% immediately%after%subsection%(1)%-%

(1A)%The%interest%of%the%surviving%spouse%under% subsection%(1)(b)%shall%determine%upon%remarriage.%

• (1B)%Notwithstanding%subsection%(1),%-%%
• (a) ! where%the%surviving%child%is%not%a%child%of% the%surviving%spouse-%%
• (i) ! the% surviving% spouse% shall% be% entitled% to% the% personal% and% household% effects% of% the% deceased% absolutely% and% a% life% interest% in% oneFhalf% of% the% whole% residue%of%the%net%intestate%estateH%and%%
• (ii) ! the%surviving%child%shall%be%entitled%to% oneFhalf% of% the% whole% residue% of% the% net%intestate%estate%which%shall%be%held% in% accordance% with% section% 41,% and% if% there% be% more% than% one% child% they% shall%share%equallyH%%%
• (b) ! where% the% surviving% children% include% a% child% who% is% not% a% child% of% the% surviving% spouse%-%%
• (i) ! the% surviving% spouse% shall% be% entitled% to% the% personal% and% household% effects% of%the%deceased%absolutelyH%%
• (ii) ! the% net% intestate% estate% shall,% in% the% first% instance,% be% divided% equally% amongst%the%surviving%spouse%and%all% the%surviving%childrenH%%
• (iii) ! the%surviving%spouse%shall%have%a%life% interest%in%his%or%her%share%and%that%of% his% or% her% children% under% subsection% (1B)(b)(ii)H%and%%%

Repeal of section 33 of Cap 160.

Amendment of section 35 of Cap 160.

• (iv) ! the%share%of%the%surviving%child%who%is% not% a% child% of% the% surviving% spouse% under% subsection% (1B)(b)(ii)% shall% be% held% in% accordance% with% section% 41,% and% if% there% be% more% than% one% child% they%shall%share%equally.%%
• (c) ! by%deleting%subsection%(5)%and%substituting% therefor%the%following%new%subsection%-%%

(5)%Subject%to%the%provisions%of%sections% 41%and%42%and%to%any%appointment%or%award% made%under%this%section,%the%whole%residue% of%the%net%intestate%estate%shall,%on%the%death% or% reFmarriage% of% the% surviving% spouse,% devolve% upon% the% surviving% child,% if% there% be%only%one,%or%be%equally%divided%among% the%surviving%children.%

6. Section%36%of%the%principal%Act%is%amended%-% 2. (a) ! in%subsection%(1)%by%-% 3. (i) ! inserting%the%words%'subject%to%subsection%(1A)% at%the%beginning%of%paragraph%(c)H%and% 4. (ii)%deleting%the%provisoH%and%% 5. (b) ! by% inserting% the% following% new% subsection% immediately%after%subsection%(1)%-%

(1A)%The%interest%of%a%surviving%spouse%under% subsection% (1)(c)% shall% determine% upon% reF marriage.%

• (c) ! by%deleting%subsection%(3)%and%substituting%therefor% the%following%new%paragraph%-%%

(3)%Upon% the% determination% of% a% life% interest% created%under%subsection%(1),%the%property%subject% to%that%interest%shall%devolve%in%the%following%order% of%priority%-%

• (a) ! father% and% mother% in% equal% sharesH% or% if% either%is%deadH%
• (b) ! the%surviving%parentH%%
• (c) ! brothers% and% sisters,% and% any% child% or% children%of%deceased%brothers%and%sisters,% in%equal%sharesH%%

Amendment of section 36 of Cap 160.

• (d) ! halfFbrothers% and% halfFsisters% and% any% child%or%children%of%deceased%halfFbrothers% and%halfFsisters,%in%equal%sharesH%or%%
• (e) ! the%relatives%who%are%in%the%nearest%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% the%following%new%paragraph-%
• (a)% father%and%mother%in%equal%shareH%or,%if%either%is% deadH%
• (b) ! by%deleting%paragraph%(b)%and%substituting%therefor% the%following%new%paragraph-%
• (b) ! surviving%parentH%or%if%none%

8. Section% 40% of% the% principal% Act% be% amended% by% inserting% the% following% new% subsection% immediately% after% subsection%(2)%-%

(3)%Notwithstanding% subsection% (1),% where% any%of%the%surviving%children%is%not%a%child%of%any% of%the%wives%of%the%deceased,%that%child%shall%-%

• (a) ! be% considered% as% an% additional% unit% in% determining%the%share%of%dependants%in%the% net% intestate% estate% under% subsection% (1)H% and%%
• (b) ! the% share% of% such% child% shall% be% held% in% accordance% with% section% 41,% and% if% there% be% more% than% one% child% they% shall% share% equally.%

Amendment of section 39 of Cap 160.

Amendment of section 40 of Cap 160.

MEMORANDUM OF OBJECTS AND REASONS

Statement of the Objects and Reasons for the Bill

The principal object of this Bill is to amend the Law of Succession Act to eliminate discrimination in distribution of the property of the deceased. To achieve this, the Bill seeks to amend section 3(2) and repeal section 3(3) of the Act which the Kenyan Courts have found discriminative against adopted children and children who have not been expressly recognized and accepted by their father. This will ensure that the Law of Succession Act complies with the provisions of Article 53 of the Constitution which provides for the equal care, protection and responsibility towards children by both parents regardless of their marital status.

The Bill further seeks to protect children of the deceased whose mother was not a wife of the deceased by ensuring that they are considered as additional units and their share of the estate devolves to them at the time of succession. The Bill also seeks to eliminate discrimination against widows, as they lose life interest in their deceased's spouse's property upon remarriage whereas widowers do not. The Court has previously found section 35 and 36 of the Act to be unconstitutional for discrimination on the basis of gender. The Bill thus ensures that the widow and widower lose their life interest in the whole of the remainder of the net intestate estate once they re-marry.

Additionally, the Bill seeks to ensure that where the parents of the deceased are entitled to inherit their deceased child's estate, both the mother and the father receive an equal share of the estate. The Court has previously found section 39 to be unconstitutional in so far as it gives fathers the priority when it comes to inheriting the property of their deceased child.

The Bill further seeks to exclude community land from the ambit of succession.

Statement on the delegation of legislative powers and limitation of fundamental rights and freedoms

The Bill does not delegate legislative powers nor does it limit the fundamental rights and freedoms.

Statement on how the Bill concerns county governments

The Bill deals with succession matters which essentially touch on land and other movable and immovable property of a deceased person. Succession matters have implications on the well-being of members of the society especially dependants of the deceased person. The stability and continuity of life of the dependants of a deceased person contribute greatly to the economy and security of a county. The Bill is therefore a Bill concerning county government in terms of Article 110 (1) (a) of the Constitution.

Statement that the Bill is not a money Bill, within the meaning of Article 114 of the Constitution

This Bill is not a money Bill within the meaning of Article 114 of the Constitution.

Dated the 12th April, 2023.

VERONICA MAINA, Senator.