Marriage may begin before wealth does

Many couples marry before they acquire substantial property. At the time of the wedding, neither spouse may own a business, investment portfolio, family land or property abroad. They may therefore see no need for a prenuptial agreement.

The financial position may change significantly during the marriage. One spouse may establish a successful business. The couple may acquire several properties. A parent may transfer family land to one spouse. One party may leave employment to raise children or support the other spouse’s career. The family may relocate abroad while retaining assets in Kenya.

Despite these changes, the spouses may continue to rely on informal understandings:

“The business is mine.”

“The land belongs to my family.”

“The property is registered in my name.”

“We agreed that each person would keep what they acquired.”

Those assumptions may appear sufficient while the marriage remains stable. They become less certain when the spouses separate, one spouse dies, a business increases substantially in value or a third party acquires an interest in the property.

The central question is whether the parties’ legal rights reflect what they believe they agreed.

Registration in one name may not resolve ownership

Property registration provides important evidence of legal ownership. It does not always resolve the other spouse’s possible beneficial interest.

The Matrimonial Property Act recognises both monetary and non-monetary contribution. Non-monetary contribution includes domestic work, childcare, companionship, management of the matrimonial home and management of a family business or property.

Where matrimonial property acquired during marriage is registered in one spouse’s name, the law creates a rebuttable presumption that the spouse holds it in trust for the other. A spouse may also acquire a beneficial interest by contributing towards the improvement of property that otherwise remains the separate property of the other spouse.

Consider a house purchased by one spouse before marriage. It may initially remain separate property. The spouses may later use it as their family home. The other spouse may finance renovations, service part of the mortgage or manage the household while the owner directs income towards the property.

A future dispute may not be resolved by producing the title alone.

Similar uncertainty may arise where one spouse establishes a business but the other works in it without a salary, contributes family funds or assumes domestic responsibilities that allow the business owner to concentrate on growing the enterprise.

The parties may believe that they know who owns what. The law may require a more detailed examination of acquisition, contribution and intention.

Is it too late to agree after marriage?

Not necessarily.

Section 6(3) of the Matrimonial Property Act expressly permits parties intending to marry to enter into an agreement determining their property rights. This provision forms the statutory basis for prenuptial agreements.

The Act does not expressly provide for an equivalent agreement entered into after marriage.

Kenyan courts have, however, recognised that spouses may enter enforceable property agreements during marriage.

In QMAO v DAW [2024] KEHC 4952 (KLR), the High Court considered a property settlement agreement signed while the marriage remained in existence. The Court classified it as a postnuptial agreement and enforced it as a contract. It held that marriage does not prevent spouses from entering a binding agreement with each other. The parties had negotiated the agreement, received legal advice and signed it in the presence of their respective advocates.

The High Court reaffirmed this emerging position in Esbon v Mwangi [2026] KEHC 7380 (KLR). The Court observed that statutory silence on postnuptial and separation agreements does not make such agreements unenforceable. They remain contracts governed by ordinary contractual principles.

A married couple may therefore regulate specified property rights after marriage.

That does not mean that every document titled “Postnuptial Agreement” will produce the intended result. Its effectiveness will depend on the circumstances in which the parties negotiated it, the information they disclosed, the terms they accepted and the steps they took to implement it.

When should spouses consider a postnuptial agreement?

A postnuptial agreement may become relevant where the couple’s financial position changes materially after marriage.

A business has been established or has grown

The spouses may need to clarify ownership of shares, business income, capital contributions, dividends, personal guarantees and any future increase in the value of the enterprise.

They may also need to address whether one spouse’s work in the business constitutes a contribution and how the arrangement affects other shareholders or children from an earlier relationship.

A marital agreement cannot, by itself, transfer company-owned property or alter the rights of shareholders who are not parties to it. The parties may also require shareholder, corporate and succession documents.

One spouse receives an inheritance

Inherited or family property may require planning where the couple intends to develop it, occupy it as the matrimonial home, generate income from it or finance improvements using family resources.

A postnuptial agreement may clarify the treatment of the property, its income and subsequent improvements.

It should also align with the owner’s succession plan. A marital property agreement does not replace a will or trust.

One spouse leaves employment or relocates

A spouse may interrupt their career to raise children, manage the home, support a family business or relocate for the other spouse’s employment.

That decision may reduce the spouse’s income, savings, career progression and retirement benefits.

A balanced agreement may recognise those consequences while establishing clear property and financial arrangements for both spouses.

The parties are reconciling after separation

Disagreements over debt, expenditure, business assets or undisclosed property may contribute to marital conflict.

Spouses who wish to reconcile may first need to agree on how they will own and manage property in future.

A postnuptial agreement can support that reconciliation. It should not operate as a punishment or exploit the financial dependence of either spouse.

The spouses own property in different countries

A Kenyan couple may relocate abroad, or a Kenyan may marry a foreign national while retaining land, investments or business interests in Kenya.

The parties may require coordinated advice on applicable law, jurisdiction, foreign property and the recognition of matrimonial orders across different countries.

A document prepared solely under one country’s law may not adequately protect assets situated elsewhere.

What can the agreement address?

A properly structured postnuptial agreement may:

• identify each spouse’s separate property;
• determine how specified property acquired during marriage will be owned;
• regulate contributions towards a home, investment or business;
• address shares, business income and liabilities;
• clarify the treatment of inherited or family property;
• allocate responsibility for specified debts;
• recognise agreed career or financial sacrifices; and
• establish procedures for valuation, transfer or sale of property.

The agreement must answer the questions most likely to create a dispute.

A general statement that each spouse will retain their own property may not be sufficient. It does not explain what happens when family funds improve separate property, one spouse works in the other’s business or the couple acquires an asset using mixed funds.

The agreement must reflect the actual financial structure of the marriage.

Why do postnuptial agreements fail?

The principal risk is assuming that the parties’ signatures are sufficient.

Failure to disclose material information

Each spouse must understand the assets, income, debts and obligations affected by the agreement.

A party who conceals material property or liabilities may expose the agreement to allegations of fraud, misrepresentation or unfair dealing.

The parties should disclose their material financial positions before signing the agreement.

Pressure or coercion

Each spouse must enter the agreement voluntarily.

An agreement may face challenge where one spouse threatens eviction, withdrawal of financial support or another serious consequence unless the other signs immediately.

The parties should have adequate time to consider and negotiate the proposed terms.

Lack of independent legal advice

The spouses may share the same broad objective, but their proprietary interests remain distinct.

Each spouse should receive independent advice on the legal consequences of the agreement. Separate representation also provides evidence that both parties understood the document and signed it voluntarily.

Unlawful or manifestly unjust terms

A court will not set an agreement aside merely because it benefits one spouse more than the other.

However, fraud, coercion, illegality or manifest injustice may undermine the agreement. The risk increases where the terms disregard substantial contribution, financial dependency or sacrifices made for the family.

Failure to implement the arrangement

A contractual promise to transfer property does not necessarily complete the transfer.

Land may require transfer instruments, consent, valuation and registration. Shares may require company resolutions and changes to statutory registers. Charged property may require the lender’s consent.

An agreement that remains unimplemented may leave one spouse with a contractual claim rather than the intended ownership.

A postnuptial agreement may not be the complete solution

A postnuptial agreement primarily regulates rights between the spouses.

It cannot automatically transfer company property, remove a bank’s rights, defeat existing creditors, replace a will or conclusively determine child custody and maintenance.

The intended arrangement may therefore require additional instruments, including property transfers, shareholder agreements, wills, trusts or advice from lawyers in another jurisdiction.

The proper question is not simply whether the spouses can sign a postnuptial agreement.

It is whether the proposed agreement, together with any necessary supporting instruments, will lawfully achieve their intended outcome.

Seek advice before uncertainty becomes a dispute

A postnuptial agreement may be relevant where, after marriage:

• a business has been established or has increased substantially in value;
• one spouse has received or expects an inheritance;
• the couple has acquired significant property;
• one spouse has left employment or relocated for the family;
• the parties are reconciling after separation; or
• the spouses hold assets in Kenya and another country.

These circumstances do not automatically require an agreement. They justify a review of whether the parties’ present legal position reflects their intentions.

A generic template cannot examine how the property was acquired, identify existing beneficial interests, assess third-party rights or determine what additional instruments the parties require.

The best time to resolve that uncertainty is while the spouses can still discuss the matter deliberately—not after ownership, succession or separation has become contentious.

Kaaya & Memba Law Chambers advises on the preparation, review and implementation of postnuptial and matrimonial property agreements. We also advise on related property transfers, business structures, succession planning and cross-border property arrangements.

This article provides general legal information. It does not constitute legal advice on any particular marriage, property, agreement or jurisdiction.

Succession disputes in Kenya rarely arise from one issue alone. They often emerge at the point where family expectations, testamentary wishes, estate administration, land ownership, rental income, and the authority of personal representatives intersect. A family may have a Will, a confirmed grant, or an appointed executor, yet still disagree on how estate property should be preserved, managed, sold, accounted for or distributed.

Where the estate includes land, rental property, shares, a family business or other valuable assets, the dispute can become more complex. Beneficiaries may question whether an executor or administrator has authority to sell property. A person collecting rent may be asked to account. A purchaser may claim protection after buying estate land. A Kenyan living abroad may discover that property in Kenya has been transferred, charged or developed without their involvement.

The Court of Appeal decision in Rachael Chepkemoi Saikwa & another v Vomorono Limited & 4 others [2026] KECA 1250 (KLR) illustrates these risks. The deceased had left a written Will. Executors had been appointed. A grant of probate had been issued and confirmed. Yet the estate remained in litigation for years over estate property, alleged transfers, rental income, sale agreements, preservation orders, purchaser claims, contempt, and the conduct of the executor.

The key lesson is that succession authority must be exercised lawfully and transparently. A Will identifies the deceased’s wishes. A grant gives authority to administer. Confirmation permits distribution of capital assets. None of these gives a personal representative a free hand to misuse estate property, disregard beneficiaries, ignore accounts, or defeat court orders.

A Will Does Not Automatically Transfer Property

A Will is an important estate planning document. It states how a person wishes his or her property to be dealt with after death. It may also appoint the persons who will administer the estate. Those persons are called executors.
However, a Will does not by itself transfer title to beneficiaries. The estate must still go through the succession process. Where the deceased died testate, the executor applies for probate. Where there is a Will but no executor was appointed, or the named executor cannot act, the court may issue letters of administration with the Will annexed.

In practical terms, the Will identifies the intended beneficiaries and the mode of distribution. The executor or administrator then administers the estate and transfers or distributes the property in accordance with the Will and the confirmed grant.

This is why succession disputes may still arise even where there is a Will. Beneficiaries may disagree over rent, land sales, exclusion from the estate, lack of accounts, or the conduct of the person administering the estate.

Executor, Administrator and Personal Representative

An executor is appointed under a Will.

An administrator is appointed by the court through letters of administration. This usually happens where there is no Will, no executor, or the named executor cannot act. A personal representative is the broader term. It includes both an executor and an administrator.

This distinction is important because a person handling estate property must have legal authority. A relative who has no grant should not take possession of, sell, rent out, transfer or otherwise deal with estate property. Such conduct may amount to intermeddling under section 45 of the Law of Succession Act.

Can an Executor or Administrator Sell Estate Property?

An executor or administrator may, in appropriate cases, have power to sell estate property. For example, a sale may be necessary to pay debts, meet administration expenses, or distribute the estate fairly.

However, that power is not absolute.

The better legal question is not merely whether the beneficiaries consented. The better question is whether the sale is authorised by law, the Will, the grant, the confirmed grant, the purpose of administration, and any court orders affecting the property.

As a general rule, immovable property should not be sold before confirmation of grant. Even after confirmation, the personal representative must act in good faith and for the benefit of the estate. He or she should not conceal transactions, ignore beneficiaries, fail to account, act in conflict of interest, or disobey court orders.

A sale may therefore be challenged where there is evidence of lack of authority, fraud, concealment, breach of fiduciary duty, conflict of interest, failure to account, breach of the confirmed grant, or breach of preservation orders.

Can Beneficiaries Challenge Dealings With Estate Property?

Yes. Beneficiaries are not helpless merely because one person holds the grant or controls the property. Depending on the facts, a beneficiary may seek preservation orders, an inhibition or restriction against the title, orders for accounts, cancellation of unlawful transfers, revocation or annulment of grant, removal or substitution of the personal representative, or contempt proceedings where court orders have been disobeyed.

Timing is critical. Once property has been transferred to a third party, charged to a bank, developed or sold onwards, the dispute becomes more complicated and expensive.

Beneficiaries should act promptly where estate property is being sold, transferred, charged, developed or rented out without proper authority or transparency.

What About Rental Income From Estate Property?

Rental income from estate property forms part of the estate unless it has been lawfully distributed or otherwise dealt with under the Will, confirmed grant or court order. A person collecting rent from estate property may be required to account. This includes an executor, administrator, beneficiary, relative, caretaker, agent, or any other person in control of the property.

The duty to account is central to succession administration. It prevents one person from collecting rent for years while excluding the other beneficiaries. This issue commonly affects Kenyans living abroad. A relative in Kenya may collect rent from family property without giving statements or remitting any share to the estate. Where that happens, beneficiaries should seek legal advice early.

Can a Buyer Safely Buy Land From an Executor or Administrator?

A buyer may purchase estate property from a personal representative. However, succession property requires enhanced due diligence. A land search alone is not enough.

A prudent buyer should review the grant, certificate of confirmation of grant, Will where applicable, succession court file, pending applications, court orders, consents, restrictions, cautions, inhibitions, and the authority of the personal representative to sell.

Section 93 of the Law of Succession Act protects certain purchasers who deal with personal representatives. However, that protection is not a licence to ignore obvious succession disputes.

In the Saikwa case, the sale agreement itself acknowledged the pending succession cause and made completion dependent on the outcome of those proceedings. The Court treated that knowledge as significant.

The practical point is clear. A purchaser who knows that estate property is under active succession litigation assumes the risk of the outcome. Buyers, developers and lenders should therefore treat estate land as a high due diligence transaction.

Can an Executor or Administrator Be Removed?

Yes. The court may revoke or annul a grant under section 76 of the Law of Succession Act.
The grounds may include defective proceedings, fraud, concealment of material facts, untrue allegations, failure to administer the estate diligently, failure to produce accounts, false accounts, or where the grant has become useless or inoperative.

However, revocation must follow due process. The affected executor or administrator must be notified of the allegations and given an opportunity to respond. The practical lesson is that misconduct may justify removal, but the application must be properly prepared and supported by evidence.

Why This Matters to Kenyans Abroad

Kenyans abroad are often vulnerable in succession matters because they may not be present to monitor land records, rent collection, court proceedings or dealings by relatives. Where the estate includes immovable property in Kenya, Kenyan succession law applies to that property. A beneficiary abroad should therefore not assume that informal family arrangements will protect land in Kenya.

A beneficiary abroad should confirm whether succession proceedings have been filed, obtain copies of the grant and certificate of confirmation of grant, conduct official searches on known estate properties, request accounts for rent or sale proceeds, and act promptly where property is being sold, transferred, charged or developed without proper authority.

Key Takeaway

An executor or administrator holds estate property in a fiduciary capacity. The office carries authority, but it also carries duties. A Will identifies the deceased’s wishes. A grant gives authority to administer. Confirmation permits distribution of capital assets. None of these gives a personal representative a free hand to misuse estate property, disregard beneficiaries, ignore accounts, or defeat court orders.

Beneficiaries should act promptly where estate property is being mismanaged. Buyers should conduct proper succession due diligence before purchasing estate land. Kenyans abroad should actively monitor family property in Kenya and seek legal advice where there are suspicious dealings.

Need Help With a Succession Matter in Kenya?

Kaaya Memba & Company Advocates advises and represents clients in succession disputes, probate, letters of administration, contested Wills, revocation of grants, preservation of estate property, recovery of rental income, and inheritance disputes involving Kenyans living abroad.

For legal assistance, contact us through info@kmlawchambers.com.

Disclaimer

This article is for general legal information only. It is not legal advice and should not be relied upon as advice on any specific succession matter. Succession disputes are fact-sensitive and may turn on the Will, the grant, the certificate of confirmation of grant, court orders, land records, family relationships, and the conduct of the parties. Readers should seek specific legal advice before taking or refraining from any action.

A recent judgment by the High Court in Maina v Kipruto & 3 Others [2025] KEHC 319 (KLR) has clarified a common but often misunderstood issue in succession law in Kenya: Can grandchildren inherit directly from a grandparent’s estate when their own parent is deceased?

The case arose from the estate of one Changwony Rotich, a polygamous patriarch who died intestate in 2001. His only surviving child, Francis Toroitich Maina (the appellant), sought to distribute the estate in a manner that would effectively exclude his nephews and niece—the children of his two deceased brothers—from equal shares. The grandchildren objected, asserting their right to inherit the shares their fathers would have taken had they been alive.

The Court’s Finding: Representation Is Lawful and Protected

The High Court reaffirmed a well-established principle under Kenyan succession law: grandchildren do not generally inherit directly from their grandparents—but they can do so by representation where their parent (the child of the deceased) has died before the grandparent.

This is governed by Section 41 of the Law of Succession Act, which allows the descendants of a deceased child to take their parent’s share in equal proportions. The court stated clearly that the right of the grandchildren to inherit was not contested and was well within the confines of the law.

Equal Shares? The Debate Over Distribution

The appellant had proposed that the estate be divided per household, citing alleged Keiyo customary practices which he claimed favored distribution by wives’ houses, not individual descendants. If adopted, this would have given him half the estate, since he was the only surviving child in his mother’s house, while the other half would be shared among the four grandchildren from the first house.

However, the court rejected this proposal. First, it noted that the appellant had not raised the issue of customary law in the pleadings or evidence, only bringing it up during final submissions. This was found to be procedurally irregular and amounted to trial by ambush.

Secondly, the judge held that the fairest and legally appropriate mode of distribution in this case was per stirpes—that is, based on the number of the deceased’s children. Since the deceased had three sons (two of whom were deceased), the estate was to be divided equally into three shares, with the grandchildren taking their respective father’s share.

Key Legal Takeaways

1. Representation under Section 41 is valid: If a child of the deceased dies before them, their children (i.e., the deceased’s grandchildren) are entitled to inherit in their place.
2. Distribution is per stirpes, not necessarily per capita or per household: Especially in intestate succession, the estate is typically divided according to the number of children the deceased had, not the number of surviving descendants.
3. Customary law must be pleaded and proven: Courts will not apply customary rules unless they are properly raised in pleadings and evidence—and such customs must not contradict statutory law or constitutional rights.
4. Grandchildren do not inherit unless their parent is deceased: This principle is a safeguard to ensure orderly transmission of property and prevent disinheritance through early deaths.

Conclusion

This judgment is significant for families involved in succession disputes where one generation has been lost before estate distribution occurs. It confirms that grandchildren can lawfully step into the shoes of their late parent and inherit from their grandparent’s estate, preserving the rights of the next generation and ensuring a just transmission of property.

Whether dealing with polygamous families, contested wills, or intestate estates, Kenyan law continues to evolve in its interpretation—but clarity on such core principles helps reduce conflict and protect vulnerable beneficiaries.

Disclaimer: This article is published for general informational purposes only and does not constitute legal advice. If you are dealing with succession matters in Kenya—particularly where grandchildren seek to inherit from a grandparent’s estate, or where polygamous family dynamics complicate estate distribution—we invite you to consult us. We offer professional legal assistance on intestate succession, inheritance rights of grandchildren, representation in succession disputes, equitable property sharing under Section 40 of the Law of Succession Act, and distribution of estates in polygamous households. We also assist Kenyans in the diaspora with navigating cross-border succession matters involving property in Kenya. Contact us today for tailored legal support based on the facts of your case.

A critical ruling by the High Court in In re the Estate of Ezekiel Mulanda Masai (Deceased)[2025] KEHC 17447 (KLR) has firmly reinforced a foundational principle in Kenyan succession law: a buyer cannot acquire good title to property forming part of a deceased person’s estate unless and until the grant of representation is confirmed by the court.

This ruling is of significant importance to buyers, family members, land dealers, and practitioners dealing with deceased estates—particularly where land transactions are involved before a grant of letters of administration is confirmed.

The Core Facts
The applicants in this case had purchased various portions of land between 2005 and 2010 from individuals connected to the deceased’s family. They had taken possession and had lived on the land for years. However, they later discovered that the estate had since been administered and the land distributed through a confirmed grant that did not recognize them as beneficiaries or purchasers.

When they sought to revoke the grant, claiming they were innocent buyers, the court had to determine whether their purchases were lawful and whether they had any valid claim to the estate property.

The Legal Question: Can Property of a Deceased Be Validly Sold Before Grant Is Confirmed?

No. The court decisively held that no sale of immovable property forming part of a deceased person’s estate is valid unless the grant of letters of administration has been confirmed, and the personal representatives have been vested with the authority to transact. This position is rooted in Section 82(b)(ii) of the Law of Succession Act, which expressly prohibits the sale of immovable property before the confirmation of grant.

The court also emphasized that:

• At the time the buyers entered into agreements (2005–2010), there was no confirmed grant in existence;
• Some of the vendors (family members) had no legal authority to deal with the estate, not being administrators;
• Any transactions made before the grant was confirmed are not only void but legally meaningless, having no effect in law from the outset;
• Purporting to sell or buy estate land in such circumstances amounts to intermeddling—a prohibited and criminalized interference with the property of the deceased; and
• Purchasers in such scenarios have no claim under the succession proceedings and must seek remedies in other fora, such as the Environment and Land Court.

Buyers Do Not Automatically Become Creditors or Beneficiaries

Another key takeaway is that buyers of estate property before confirmation of grant are not considered creditors, dependents, or beneficiaries of the estate. This limits their ability to participate in succession proceedings or apply for revocation of a grant under Section 76 of the Act.

Only transactions sanctioned through a confirmed grant and conducted by duly appointed administrators carry legal weight. Buyers dealing with heirs or relatives before this point do so at their own risk.

What Should Buyers and Families Take from This?

No Valid Title Without Confirmation
If you are buying land from a deceased person’s estate, you must confirm that:

• The grant has been confirmed;
• The seller is a legally appointed administrator;
• The land is listed in the certificate of confirmation and assigned to the seller.

Avoid “Heir Sales” Before Court Approval
Agreements made with children or widows of the deceased before grant confirmation carry no legal validity. Such sellers often have no title to pass and are intermeddling.

Know Where to Seek Redress
If you already bought such land, your recourse is through a civil suit in the Environment and Land Court, not in a succession case. The probate court will not entertain ownership claims from non-beneficiaries.

Conclusion

This judgment serves as a firm warning: do not transact on a deceased person’s land until succession proceedings have reached the confirmation stage. Buyers should carry out due diligence and ensure all legal formalities are in place.

Attempting to shortcut this process not only risks losing your money—it may result in eviction, financial loss, and even criminal charges for intermeddling.

Disclaimer:

This article is intended for general informational purposes only and does not constitute legal advice or create an advocate-client relationship. If you are considering buying land from a deceased person’s estate in Kenya, dealing with unconfirmed succession property, or facing challenges related to probate, confirmation of grant, or estate distribution, we encourage you to consult us. We offer legal services on succession planning, confirmation of grants under the Law of Succession Act, resolving land disputes involving deceased estates, rectifying fraudulent transfers, defending or challenging succession proceedings, and assisting Kenyans in the diaspora with cross-border estate matters. We are well-placed to guide you through every stage of estate administration and property transfer and transmission in Kenya.

A recent High Court decision in In re Estate of Raphael Charles Makokha (Deceased) [2024] KEHC 12277 (KLR) has cast fresh light on key aspects of succession law in Kenya—especially the distinctions between testate and intestate succession, property sharing in polygamous families, and the often-overlooked requirement of properly ascertaining a deceased person’s assets before seeking distribution.

The dispute arose following the death of Raphael Makokha in 2013. For years, the succession proceedings moved on the basis that he had died intestate, only for one of the widows to later introduce an alleged will—nearly a decade into the process. This created procedural confusion and legal tension over the mode of distribution, raising important questions for families and legal practitioners alike.

1. The Will That Appeared Midway: Why Timing and Procedure Matter

Although the deceased’s estate had initially been processed as an intestate matter—with letters of administration issued accordingly—one administrator later claimed to have discovered a written will. However, the court held firmly that the will could not be acted upon within the current intestate proceedings.

The law requires that when a person dies leaving a valid will, the appropriate cause to initiate is one for probate or for grant of letters of administration with will annexed. Simply producing a will in the middle of intestacy proceedings without initiating the proper process is not acceptable in law.

Importantly, the court emphasized that if a will genuinely exists, it must be proved through a formal process—ideally by the executor named in the will. Otherwise, intestacy remains the legal framework for distribution.

2. Sharing Property in a Polygamous Family: Applying Section 40 of the Law of Succession Act

Raphael Makokha had two wives at the time of his death. One had four children, while the other had none. The court confirmed that Section 40 of the Law of Succession Act governs such situations. This section provides that the estate of a polygamous man should be divided according to the number of units—each child being a unit, with each surviving widow also considered an additional unit.

In this case:

1. The first house (one wife and four children) had five units.
2. The second house (one wife, no children) had one unit.

As a result, the distribution ratio was 5:1 in favour of the first house.

This case is a reminder that under Kenyan law, all wives legally married and alive at the time of death are entitled to inherit, and the number of children plays a pivotal role in determining shares.

3. Why Ascertaining the Deceased’s Assets Is Crucial Before Distribution

Another major takeaway from the ruling is the necessity of identifying and confirming ownership of estate assets before proposing a mode of distribution. In this case, parties put forward properties for distribution—some of which were not registered in the deceased’s name at the time of death.

Ultimately, the court found that only one asset—a motor vehicle (KAC 542W)—was properly registered in the name of the deceased. All other properties were either:

1. Already transferred to other persons,
2. Acquired by the widows in their personal capacity,
3. Or never belonged to the deceased in the first place.

The court criticized the parties for failing to undertake proper due diligence before proposing how to share out the estate. It reiterated that attempting to distribute property not legally belonging to the deceased leads to legal embarrassment, possible rejection at the lands office, and unnecessary delay.

The administrators were given 90 days to properly ascertain the deceased’s assets and return to court with supporting documents before distribution of the remainder could proceed.

Conclusion: What This Case Teaches About Succession in Kenya

This case offers three powerful lessons for anyone navigating succession in Kenya:

1. Wills must be introduced early and through proper procedure. Producing a will midway through intestate proceedings raises suspicion and cannot automatically alter the legal process.
2. Polygamous families must understand the unit-based approach under Section 40. Distribution depends on the number of children and surviving spouses—not sentiments or marital duration.
3. Ascertain the estate before distribution. Always verify that the listed properties actually belonged to the deceased at the time of death and that supporting documentation is available.

Whether you are a family member, a legal representative, or a concerned beneficiary, this case underscores the importance of getting the procedure right from the start—and ensuring the facts on property ownership are solid before stepping into court.

Disclaimer:
This article is intended for general informational purposes only and does not constitute legal advice or create an advocate-client relationship. For specific legal assistance, we invite you to consult us on matters including: succession planning in Kenya, applying for letters of administration, will drafting and probate services, estate distribution in polygamous families, contesting or defending a will, resealing foreign grants, representation in succession disputes, and assisting Kenyans in the diaspora with cross-border succession processes. We are available to guide you through every stage of the succession process in Kenya

As a business owner or taxpayer in Kenya, understanding the dynamics of Value Added Tax (VAT) is crucial for compliance and financial planning. This article delves into key concepts of Kenya’s VAT system, including input VAT, output VAT, and the critical importance of proper record-keeping and documentation.

What is VAT in Kenya?

Value Added Tax (VAT) is a consumption tax levied on the supply of taxable goods and services in Kenya. It is an important source of revenue for the Kenyan government and is governed by the Value Added Tax Act, 2013.

Input VAT Explained

Input VAT is the tax that a registered business pays on the purchase of goods and services for business use. This includes VAT paid on local purchases from other registered businesses and on imports.

Key points about input VAT in Kenya:

1. It is deductible against output VAT, but only for purchases related to making taxable supplies.
2. Specific documentation is required for claiming input VAT deductions.
3. There is a time limit for claiming input VAT, generally within six months after the end of the relevant tax period.

Output VAT Demystified

Output VAT is the tax that a registered business charges and collects on its sales of taxable goods and services. Essentially, it is the VAT you add to your prices when selling to customers.

Important aspects of output VAT in Kenya:

1. Businesses or a tax payer act as tax collectors, charging VAT on behalf of the Kenya Revenue Authority (KRA).
2. The standard rate of VAT in Kenya is currently 16% for most taxable supplies.
3. Businesses must declare and pay the collected output VAT to KRA, minus any allowable input VAT deductions.

The VAT Calculation Process

The VAT payable (or refundable) is calculated by subtracting input VAT from output VAT. If output VAT exceeds input VAT, the difference is paid to KRA. If input VAT is greater, the excess can usually be carried forward or, in some cases, refunded.

Importance of Proper Record-Keeping and Documentation

Recent court cases have underscored the critical importance of maintaining accurate and complete VAT records (Section 43 VAT Act) and other tax-related documents. In Saxon Investments Ltd v Commissioner of Domestic Taxes (Tax Appeal 333 of 2023) [2024] KETAT 840 (KLR), the Tax Appeals Tribunal emphasized that the burden of proof in tax matters lies with the taxpayer (Section 56(1) of the Tax Procedures Act and Section 30 of the Tax Appeals Tribunal Act). This means businesses must be prepared to substantiate their VAT claims with proper documentation.

Documentation Requirements for Input VAT Claims

To claim input VAT in Kenya, businesses must maintain proper documentation (Section 17 (3) of VAT Act), including:

• Original tax invoices or certified copies
• Customs entries and payment receipts for imports
• Credit or debit notes for adjustments

Additionally, Section 43 of the VAT Act requires taxpayers to keep comprehensive records including:

• Copies of all tax invoices and simplified tax invoices issued in serial number order
• Purchase invoices and customs entries
• Details of amounts of tax charged on each supply made or received
• Tax account showing totals of output and input tax
• Stock records
• Details of each supply of goods and services from business premises

Burden of Proof and Additional Documentation

When the tax authority raises questions or concerns about fraud, forgery, or missing trader schemes, as regards the documents provided in a claim for Input VAT, the burden of proof shifts to the taxpayer to demonstrate the legitimacy of their input VAT claims. This principle was reinforced in the High Court case of Commissioner Investigations And Enforcement v Sangyug Enterprises(K) Limited (Income Tax Appeal E056 of 2020) [2022] KEHC 59 (KLR).

In such cases:

1. The taxpayer must provide additional documentation beyond just invoices and receipts to prove the authenticity of transactions.
2. The Kenya Revenue Authority (KRA) has the power under Section 59 of the Tax Procedures Act to request additional information and documents to verify tax claims.
3. Taxpayers must be prepared to demonstrate that their suppliers actually exist, have physical premises, and conducted genuine business transactions.
4. Failure to provide sufficient documentation may result in disallowance of input VAT claims.

Time Limits for VAT Claims

The VAT Act (Section 17) stipulates specific time limits for VAT claims:

• Input VAT must generally be claimed within six months after the end of the tax period in which the supply or importation occurred.
• Refund claims for excess input VAT in certain situations must be lodged within 24 months from when the tax becomes due and payable.

Conclusion

Understanding the interplay between input and output VAT is essential for businesses operating in Kenya. It affects cash flow, tax liability, and overall financial management. Equally important is maintaining meticulous records and being prepared to provide comprehensive documentation to support VAT claims, especially when faced with scrutiny from Kenya Revenue Authority.

Recent legal cases have emphasized that the onus is on the taxpayer to prove the validity of their tax positions. Businesses and generally tax payers must be vigilant in maintaining proper documentation and be prepared to substantiate their VAT claims beyond just providing invoices, particularly when faced with allegations of fraud or involvement in missing trader schemes.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on tax assessments, objection decisions, agency notices, tax disputes, tax matters, or litigation at the Tax Appeals Tribunal, please consult with a qualified tax professional or legal advisor.

1. Introduction

Suspension of an employee is a critical tool available to employers, often used to address allegations of misconduct or to facilitate investigations without employee’s interference. Understanding the legal framework and implications of suspending an employee is essential to avoid potential legal repercussions. In this article, we explore the dynamics of employee suspension, referencing the case of Tassia Catholic Primary & Nursery School v. Florence Kanini Employment and Labour Relations Appeal No. E201 of 2022) to provide practical insights.

1. Understanding Employee Suspension

Suspension can be broadly categorized into two types:

1. Administrative Suspension: Used to facilitate investigations into the employee’s conduct, preventing them from interfering with the process.
2. Disciplinary Suspension: Applied as a punitive measure following the conclusion of a disciplinary process.

Both types of suspension must be handled with care and reasonableness to ensure they do not result in claims of constructive dismissal or unfair termination.

• Case Study: Tassia Catholic Primary & Nursery School v. Florence Kanini
  • At the Trial Court

In this case, Florence Kanini, the Respondent, was employed as a cook by Tassia Catholic Primary & Nursery School. Due to her health issues, she frequently sought medical attention. On 3^rd July 2019, she requested permission to visit her doctor, which was denied due to the school’s busy schedule. Despite this, Kanini left for her appointment, which led to her suspension the following day.

Kanini’s suspension was indefinite and without pay. This led her to seek intervention from human rights defenders and subsequently file a lawsuit for unfair termination. The trial court found the suspension amounted to constructive termination, as it was indefinite, without pay, and lacked a clear basis or timeline for resolution.

1. An the Appelate Court

The Appellant (school) contested the trial court’s decision, which had found the indefinite suspension of the Respondent to be unfair and akin to constructive dismissal. The trial court had awarded Kanini compensation for unfair termination, salary for days worked in July 2019, and pay in lieu of notice. The Appellant argued that the suspension was justified and not a termination, seeking to overturn the lower court’s decision.

The Employment and Labour Relations Court upheld the trial court’s ruling, agreeing that the indefinite suspension without pay constituted constructive dismissal. The appellate court emphasized that the suspension lacked a clear reason and duration, rendering it unreasonable. As a result, the court affirmed the compensation awarded to Kanini.

• Key Legal Considerations

For employers seeking to exercise their right to suspend an employee either for administrative or disciplinary purposes, they should consider the following:

1. Justification and Communication: The case highlighted the necessity for employers to clearly state the reasons for suspension. The Employment and Labour Relations Court found that the Appellant’s suspension letter to Kanini was vague and did not specify the reason for the suspension or its duration, rendering the action arbitrary and unreasonable.

•  Duration and Pay: Indefinite suspension, especially without pay, can be construed as constructive dismissal. Employers must ensure that suspensions are for a definite period and, unless otherwise specified in the employment contract, should be with pay. The court referenced the Court of Appeal case of Mutwol v Moi University (Civil Appeal 118 of 2019) to emphasize that prolonged or indefinite suspensions can amount to constructive dismissal.

•  Fairness and Good Faith: Employers are expected to act in good faith and fairness when deciding to suspend an employee. The decision should protect legitimate business interests and not be used whimsically. In the Canadian case of Cabiakman v. Industrial Alliance Life Insurance Co. (2004), it was established that administrative suspensions must be necessary, fair, and typically with pay.

• Best Practices for Employers

Concomitantly, the employer should consider the following best practices to minimize exposure to legal liability and ensure they promote constitutionalism by not violating, infringing, or threatening the employee’s constitutional right to fair labor practices.

1. Establish Clear Policies: Ensure that the employment contract or company policy clearly outlines the circumstances under which suspension can occur, the process to be followed, and the rights of the employee.

2. Document Everything: Keep detailed records of all communications and actions taken regarding the suspension to provide a clear trail of the decision-making process.
3. Communicate Clearly: Provide the employee with a written notice of suspension that details the reasons, duration, and whether it is with or without pay (typically as provided for either in the contract of employment or Human Resource Policies).

Conclusion

Suspending an employee is a serious labor action with significant legal implications. Employers must conduct this process carefully and reasonably, ensuring that they adhere to legal standards and maintain fair treatment of employees considering fair labor practices and complementary statutory rights. Additionally, employers must exercise the power to suspend sparingly and with justifiable reasons, ensuring that the process is transparent and fair to avoid claims of constructive dismissal. Finally, for employees, understanding your rights regarding suspension can empower you to seek redress if unfairly treated in the workplace.

DisclaimerThis article is for informational purposes only and does not constitute legal advice. For specific legal guidance on employment disputes, redundancy, unfair termination, wrongful dismissal, summary dismissal, drafting and reviewing employment contracts, suspensions and interdictions,employment contract drafting and review, or any other labor-related dispute, please contact us.

Overview of Adoption Procedures

Adoption in Kenya is governed by the Children Act, which outlines comprehensive procedures to ensure the welfare and rights of children are upheld. The Act stipulates the powers of the High Court in making adoption orders, prerequisites for adoption, and eligibility criteria for both children and prospective adoptive parents. This article provides a detailed overview of the key provisions under the Children Act concerning adoption.

Power to Make Adoption Orders

The High Court holds the authority to make adoption orders upon application in the prescribed form. Such proceedings are to be held in chambers to maintain confidentiality of the child’s and applicants’ identities. Adoption under this Act includes local, kinship, and foreign adoptions.

1. Local Adoption: Involves a child resident in Kenya and adopting parents who are Kenyan nationals residing in Kenya.
2. Kinship Adoption: Pertains to adoption by relatives of the child.
3. Foreign Adoption: Encompasses various scenarios involving Kenyan nationals with dual citizenship, foreign nationals, or former Kenyan nationals.

Prerequisites for Adoption

Before commencing adoption proceedings, certain conditions must be met:

1. Declaration of Adoptability: The child must be declared free for adoption by the relevant council and must be at least six weeks old.
2. Continuous Care: The child must have been in the continuous care of the applicant within Kenya for three consecutive months preceding the application.
3. Preselection Restrictions: Applicants cannot preselect a child for adoption except in kinship adoptions or when adopting a foster child already in their care.

Eligibility of Children for Adoption

Children eligible for adoption include orphans without guardians, abandoned children whose parents cannot be traced for over a year, and children willingly offered for adoption by their biological parents.

Who May Apply to Adopt

The Court may grant adoption orders to sole applicants or jointly to spouses, provided they meet specific age and relationship criteria. Applicants must be between 25 and 65 years old and at least 21 years older than the child. Sole male applicants are generally not favored unless biologically related to the child.

Consent Requirements and Dispensation

Consent for adoption must be obtained from the child’s parents or guardians, the applicant’s spouse in joint applications, and the child if over ten years old. The Court may dispense with required consents under certain conditions, such as abandonment or neglect by the parents.

Appointment of Guardian Ad Litem

A guardian ad litem is appointed to safeguard the interests of the child during adoption proceedings. Their duties include investigating and reporting on the adoption circumstances and making recommendations to the Court.

Interim Orders and Final Adoption Orders

The Court can issue interim orders to ensure the child’s welfare during adoption proceedings. Final adoption orders are made based on comprehensive evaluations to confirm the best interests of the child are served, considering the child’s wishes and the applicant’s suitability.

Review and Revocation of Adoption Orders

Biological parents may apply for a review of adoption orders under specific conditions, such as cases of abduction or loss. The Court may revoke or modify adoption orders to grant custody to biological parents or joint custody with adoptive parents.

Inter-Country and Kinship Adoptions

Inter-country adoptions are permitted under stringent conditions, including proof of exhaustive local placement efforts and recognition of the adoption by the adoptive parents’ country. Kinship adoptions are restricted to relatives of the child, with regulations set forth by the Cabinet Secretary.

Conclusion

The Children Act provides a robust framework to regulate adoption processes in Kenya, ensuring that all proceedings prioritize the best interests of the child. Adopting parents must comply with detailed legal requirements, and the High Court plays a critical role in overseeing and authorizing adoptions to protect children’s welfare.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on adoption, child maintenance, parental responsibility agreements, Child custody and other children related issues, please contact us.

Definition and Scope of Loss of Consortium

Loss of consortium refers to the deprivation of the benefits of a family relationship due to injuries caused by a third party’s negligent or wrongful actions. This legal concept is primarily applicable to spousal relationships. It compensates for the loss of companionship, affection, sexual relations, and other relational benefits that are negatively impacted due to personal injuries.

Key Legal Elements of Loss of Consortium in Personal Injury Claims

To establish a claim for loss of consortium in Kenya, the claimant must demonstrate:

1. Existence of a Valid Relationship: A legally recognized relationship, such as marriage, must be proven.
2. Injury to the Primary Victim: The spouse must have suffered significant personal injuries due to the defendant’s actions.
3. Impact on the Relationship: The injury must have negatively affected the relationship, resulting in a loss of companionship, emotional support, or other relational benefits.

Case Analysis: Mbaaru & Another v Kenya Bus Services Limited

In the recent appellate decision of Mbaaru & Another v Kenya Bus Services Limited (Civil Appeal 244 of 2013), the Court provided pivotal clarifications on loss of consortium claims within the context of running down cases in Kenya.

Facts: The 2^nd  Appellant (husband) sought damages for loss of consortium following a road accident in which the 1^st Appellant (wife) was severely injured due to the negligence of the 2nd respondent, an employee of the 1^st Respondent. The injuries significantly impaired the 1^st Appellant’s ability to fulfill her marital role, thus affecting the marital relationship.

Judgment:

1. Negligence and Liability: The Court held the respondents (Kenya Bus Services Limited and its employee) jointly liable for the accident. It found contributory negligence on the part of the 1^st Appellant, reducing her compensation by 25%.
2. Award for Loss of Consortium: The Court awarded the 2^nd Appellant Kshs. 300,000, recognizing the substantial impact of the injuries on the marital relationship.

Legal Implications for Damages and Compensation

This judgment underscores the recognition of non-economic damages in personal injury claims, particularly the profound personal and emotional toll that injuries can impose on familial relationships. The award for loss of consortium highlights the importance of addressing these intangible losses within the legal framework of running down cases in Kenya.

Seeking Legal Redress for Personal Injury Claims in Kenya

Individuals in Kenya who have experienced similar impacts on their familial relationships due to another party’s negligence may be entitled to compensation for loss of consortium. Given the difficulties involved in these claims, it is crucial to seek professional legal advice to navigate the legal requirements and present a compelling case for damages and compensation.

We provide specialized legal assistance for personal injury claims, including loss of consortium, running down cases, and other related damages. Our team is committed to ensuring that your rights are upheld and that you receive appropriate compensation.

For expert legal advice and representation regarding personal injury claims in Kenya, contact us today.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on personal injury claims,material damage claims, fatal claims, running down cases, please contact us.

Introduction

The legal status of children born out of wedlock in succession matters has been a contentious issue in many jurisdictions, including Kenya. The recent Court of Appeal decision in Faraj v Mwawasi & 2 others (Civil Appeal E043 of 2022)provides an insightful analysis of how Kenyan courts address this issue. This article delves into the judicial reasoning and legal principles applied in this case, exploring the broader implications for the rights of children born out of wedlock in inheritance disputes.

Legal Framework

In Kenya, the Law of Succession Act (Cap 160) governs the distribution of a deceased person’s estate. Sections 3(2) and 29 of the Act are particularly relevant when determining the status and rights of children in succession matters. These sections define who qualifies as a dependent and the extent of their entitlement to the estate.

Article 53 of the Constitution of Kenya 2010 also plays a crucial role. It emphasizes the rights of children, including the right to parental care and protection, irrespective of whether they are born within or out of wedlock.

Case Analysis: Faraj v Mwawasi & 2 others

In Faraj v Mwawasi & 2 others, the Court of Appeal faced the challenge of determining whether children born out of wedlock were entitled to inherit from their deceased father’s estate. The primary issues revolved around the legitimacy and paternity of these children.

Facts of the Case

The deceased had children from multiple relationships. The 1st respondent claimed her children were sired by the deceased during their cohabitation before their formal marriage under Islamic Sharia law. However, their paternity was disputed by the appellants, leading to a legal battle to establish their inheritance rights​​.

Judicial Findings

1. Inheritance Rights: The court noted that denying children born out of wedlock the right to inherit from their deceased father’s estate would constitute discrimination. Article 53(1)(e) of the Constitution, which mandates equal parental responsibility, was pivotal in this decision​​.
2. Islamic Law Considerations: The case also involved the application of Islamic law, which traditionally does not recognize the inheritance rights of children born out of wedlock. However, the court balanced this with constitutional principles, ensuring that all children were treated equitably​​.

Implications for Succession Disputes and Inheritance Rights

The judgment in Faraj v Mwawasi & 2 others underscores several key points:

1. Non-Discrimination in Succession Matters: The ruling reinforces the principle that all children, irrespective of their birth circumstances, should not suffer discrimination in succession disputes. This aligns with constitutional protections against discrimination.
2. Balancing Customary and Constitutional Law: The case highlights the judicial effort to balance customary or religious laws with constitutional mandates, ensuring that traditional practices do not infringe on the fundamental rights of individuals, especially vulnerable groups like children born out of wedlock.
3. Children’s Rights in Kenya: The decision reaffirms the importance of upholding children’s rights in Kenya, ensuring that their status as dependents is recognized regardless of their parents’ marital status. This is crucial in safeguarding their inheritance rights and securing their future.

Conclusion

The Faraj v Mwawasi & 2 others case is a key decision in Kenyan succession law. It provides a clear affirmation that children born out of wedlock are entitled to inherit from their deceased parents, emphasizing the need for non-discrimination and the protection of children’s rights. Legal practitioners and stakeholders in succession matters must consider this precedent when advising clients and handling similar disputes.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on succession matters/disputes, children cases, inheritance, or other family disputes, please contact us.