Private client legal matters — wills, estates, succession, trusts, family disputes and wealth structuring — sit at the intersection of personal and family life and legal obligation. Kenya’s succession law blends the Succession Act 1972 (which applies to most of the population and to all non-citizens) with a parallel customary law system, and its family law has been substantially updated by the Marriage Act 2014 and the Matrimonial Property Act 2013. For high-net-worth individuals, for families managing business succession alongside personal estates, and for expatriates with assets or family connections in Kenya, this is an area where early and careful planning is far more cost-effective than contested administration or disputed divorce proceedings.
At a glance
- The Law of Succession Act (Cap. 160) governs the distribution of the estates of all persons who die domiciled in Kenya, and all immovable property in Kenya regardless of the deceased’s domicile; it applies to all persons regardless of religion or ethnicity, subject to limited exceptions for Africans who opt into customary law succession.
- A valid will under the Succession Act must be in writing, signed by the testator (or by another person in the testator’s presence and direction), and witnessed by two or more persons present at the time of signing who also sign in the testator’s presence.
- On intestacy, the Succession Act distributes property to the surviving spouse and children first; parents and siblings inherit only in the absence of a surviving spouse and children.
- The Marriage Act 2014 recognises civil marriages, Christian marriages, customary marriages, Hindu marriages and Islamic marriages — each with its own formation requirements; only a marriage lawfully celebrated under one of these categories is recognised in law.
- The Matrimonial Property Act 2013 introduces a statutory presumption of equal ownership of matrimonial property acquired during the marriage, subject to proof of different contributions.
The legal framework
Kenya’s private client law is governed by four principal statutes. The Law of Succession Act (Cap. 160) covers wills, intestate succession, the administration of estates and the grant of probate and letters of administration. The Marriage Act 2014 (No. 4 of 2014) consolidates the law on the celebration and registration of marriages and the recognition of foreign marriages. The Matrimonial Property Act 2013 (No. 49 of 2013) governs the ownership and division of property on divorce or death. The Children Act 2022 (which replaced the Children Act 2001) governs parental responsibility, child maintenance and the welfare of children.
The High Court (Family Division) has exclusive jurisdiction over probate matters, matrimonial causes (divorce, nullity, judicial separation) and children’s matters. The Magistrates Court has concurrent jurisdiction in maintenance matters and, since the Statute Law (Miscellaneous Amendments) Act 2019, over certain succession matters below the prescribed financial threshold. Customary law remains a source of law in family matters where both parties belong to the same customary law tradition and the matter is not excluded by statute.
Wills and succession planning
A will made in Kenya must comply with the formal requirements of section 11 of the Law of Succession Act: it must be in writing (printed, typed or handwritten), signed by the testator at the foot or end (or by another person in the testator’s presence and at the testator’s direction), and witnessed by two persons who are present at the time of signing and who both sign in the testator’s presence. A beneficiary or the beneficiary’s spouse may not witness a will without forfeiting the benefit under it. A will may appoint an executor, direct the distribution of the estate, establish trusts for minors or vulnerable adults, and — from a practical standpoint — give clear instructions that reduce the scope for family disputes on the testator’s death.
Foreign wills: a will executed validly under the law of the jurisdiction where it was made is generally recognised in Kenya as a valid will of movable property in that jurisdiction. However, for immovable property in Kenya, the formal validity requirements of the Succession Act apply regardless of where the will was made. A person with assets in Kenya and overseas should have a Kenya-specific will (or at minimum Kenya-specific codicils) drafted by Kenyan counsel to ensure that the Kenyan estate can be administered without delay.
Probate and administration of estates
When a person dies with a will, the executor named in the will applies to the High Court (Family Division) for a grant of probate. Where there is no will, or no executor is willing and able to act, an interested party — typically the surviving spouse, child or next of kin — applies for letters of administration. Both processes require filing a petition, an inventory of the estate and supporting documents (death certificate, will if any, valuations of property) with the Probate Registry. The court may also appoint a professional administrator if the estate is complex or if the beneficiaries cannot agree on an administrator.
The administration process involves collecting in and valuing all assets, paying all debts and liabilities (including income tax up to the date of death, computed and settled with the Kenya Revenue Authority), and distributing the net estate to the beneficiaries. The administrator has a fiduciary duty to all beneficiaries; misappropriation of estate assets is a criminal offence under the Succession Act.
Marriage and matrimonial property
The Marriage Act 2014 recognises five types of marriage in Kenya: civil marriages (contracted under the Act before a Registrar), Christian marriages (contracted in a church before a minister of religion), customary marriages (contracted under the customary law of the parties), Hindu marriages and Islamic marriages. Each type has its own formation requirements; the Act prescribes registration requirements for all types, though the legal consequences of a failure to register vary by type.
On divorce, the Matrimonial Property Act 2013 introduces a statutory presumption that matrimonial property — property acquired during the marriage — is owned in equal shares unless the court is satisfied from the evidence that the parties made unequal contributions. “Contribution” is defined broadly to include money, property and non-monetary contributions including domestic work and the care of children. A prenuptial (ante-nuptial) agreement — an agreement made before or at the time of marriage about the ownership and division of property — is recognised as enforceable in Kenya, provided it is freely entered into with full disclosure and does not purport to oust the jurisdiction of the court.
Children and parental responsibility
The Children Act 2022 provides that parental responsibility is shared between the parents of a child, regardless of whether they are married. On separation or divorce, either parent may apply to the Family Division of the High Court (or a Magistrates Court with jurisdiction) for residence, contact and maintenance orders. The paramount consideration in all children’s matters is the best interests and welfare of the child. Child maintenance is calculated on the basis of the financial means of each parent and the child’s needs; the court may impute income to a parent who is not making full financial disclosure.
What you should do now
For individuals with assets or family in Kenya
Make a will if you do not have one — intestacy in Kenya can produce outcomes that are very different from what you would intend, particularly if your estate includes a family business or property you wish to keep together. Review your will if it was made before the Marriage Act 2014 or the Matrimonial Property Act 2013 came into force. Appoint a competent executor — a professional or a family member who will have the time and capacity to manage an estate administration — and communicate the location of the will and key documents to that person.
For families managing business succession
Align your personal succession plan with your business structure. A will alone does not transfer shares in a company that has a shareholders’ agreement with pre-emption rights or restrictions on transfers by estate. Work with both your corporate and private client advisers to ensure that the business succession plan and the personal estate plan are consistent and that the estate will have liquidity to meet any obligations (tax, business buy-out, family maintenance) that arise on death.
For couples considering marriage or separation
Consider an ante-nuptial agreement if you are about to marry and have significant assets, a business interest or children from a previous relationship. On separation, take legal advice before making any agreements about property or children — an informal agreement about asset division reached without legal advice may be difficult to enforce and may miss tax and pension considerations. Both parties should have independent legal advice for a settlement agreement to carry maximum weight with the court.
Frequently asked questions
Q1. What happens to property if a person dies without a will in Kenya?
The Law of Succession Act sets out the intestate succession rules. If the deceased leaves a surviving spouse and children, the spouse takes the personal and household effects absolutely, a life interest in the matrimonial home, and a proportion of the remainder of the net estate; the children take the rest in equal shares. If there is no surviving spouse or child, the estate passes to parents, then siblings, and so on down the hierarchy. The Act does not automatically provide for cohabitees, unmarried partners or stepchildren unless they are dependants who can make a maintenance claim.
Q2. How long does probate take in Kenya?
An uncontested probate in the High Court Family Division typically takes 6 to 18 months from filing the petition to the issue of the grant, depending on the complexity of the estate and the court’s current workload. Delays occur where the inventory is incomplete, where the will is contested, or where KRA requires a formal assessment of income tax arrears. A contested probate (a dispute about the validity of the will, the appointment of the executor, or the rights of dependants) can take years. Careful preparation of the petition and supporting documents at the outset reduces the risk of avoidable delays.
Q3. Is a customary marriage legally recognised in Kenya?
Yes. A customary marriage celebrated in accordance with the customary law of the community concerned is a legally recognised marriage under the Marriage Act 2014. It should be registered with the Registrar of Marriages; failure to register does not make the marriage void, but registration provides important evidence of the marriage’s existence. The Matrimonial Property Act 2013 and the Succession Act apply to customary marriages in the same way as to civil marriages.
Q4. Can a non-citizen make a will covering property in Kenya?
Yes. The Law of Succession Act applies to all immovable property situated in Kenya regardless of the owner’s nationality or domicile. A non-citizen should have a Kenya-specific will (or codicils to a foreign will) covering their Kenyan property — in particular land and shares in Kenyan companies — to avoid the delays and complications of having a foreign grant resealed in Kenya. Kenya recognises and can reseal grants made by courts in Commonwealth jurisdictions and in certain other countries listed by order of the Chief Justice.
Q5. What is the matrimonial property presumption and can it be rebutted?
Section 7 of the Matrimonial Property Act 2013 presumes that each spouse owns an equal share in matrimonial property. The presumption can be rebutted by evidence that the parties made unequal contributions — monetary or non-monetary — to the acquisition of the property. A spouse who contributed the entire purchase price of a property may argue for a larger share; a spouse who provided primary child care and domestic support while the other worked will typically be credited with a substantial non-monetary contribution. The court weighs all contributions holistically; an ante-nuptial agreement that expressly addresses a particular asset can also rebut the presumption.
How OLM Law can help
OLM Law advises individuals and families on the full range of private client matters — will drafting and estate planning, probate and administration of estates, matrimonial property and divorce, ante-nuptial agreements, children’s arrangements and maintenance, trust formation and trustee advice, and the structuring of family business succession. We advise both Kenyan and non-Kenyan clients with assets or family connections in Kenya, and we work with international law firms and private client advisers on cross-border matters. To discuss your private client matter, contact us at [email protected].
| Surviving relatives | Spouse’s entitlement | Children’s entitlement | Other relatives |
|---|---|---|---|
| Spouse and children | Personal and household effects + life interest in remainder | Remainder in equal shares after spouse’s life interest | None |
| Spouse, no children | Personal effects + first KES 10,000 + half of remainder | N/A | Half remainder to parents; if none, to siblings |
| Children only (no spouse) | N/A | Entire estate in equal shares | None |
| No spouse or children | N/A | N/A | Parents; then siblings; then more distant relatives |
In our view, the intestacy provisions of the Law of Succession Act operate harshly for surviving spouses in practice. A spouse who has not been left the matrimonial home by Will retains only a life interest under the intestacy rules, meaning adult children may seek to partition or sell shared property on the other parent’s death. We consider it prudent for every married person in Kenya—regardless of perceived estate size—to make a Will that expressly addresses the matrimonial home and business interests.
Sources and authorities
Law of Succession Act (Cap. 160), in particular Part II (wills), Part III (intestacy), Part IV (dependant’s protection) and Part VII (grants of representation). | Marriage Act 2014 (No. 4 of 2014). | Matrimonial Property Act 2013 (No. 49 of 2013). | Children Act 2022 (No. 29 of 2022). | Constitution of Kenya 2010, Article 45 (family) and Article 60 (land policy). | Probate and Administration Rules 1980 (L.N. 40 of 1981). | All statutes available via kenyalaw.org.
Disclaimer: This article is general commentary on Kenyan law as at September 2026 and does not constitute legal advice. Specific situations require specific advice. No solicitor-client relationship is created by reading this article. OLM Law Advocates LLP accepts no liability for action taken in reliance on it.
