Section 28 of Law of Succession Act CAP 160: Circumstances to be taken into account by court in making order
In considering whether any order should be made under this Part, and if so what order, the court shall have regard to—
(a) the nature and amount of the deceased’s property;
(b) any past, present or future capital or income from any source of the defendant;
(c) the existing and future means and needs of the dependant;
(d) whether the deceased had made any advancement or other gift to the dependant during his lifetime;
(e) the conduct of the dependant in relation to the deceased;
(f) the situation and circumstances of the deceased’s other dependants and the beneficiaries under any will;
(g) the general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant.
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- Section 29 - Meaning of dependant
For the purposes of this Part, “dependant” means—
(a) the wife or wives, or former wife or wives, and the children of the
deceased whether or not maintained by the deceased immediately prior to...
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No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71.
- Section 31 - Characteristics
A gift made in contemplation of death shall be valid, notwithstanding that there has been no complete transfer of legal title, if—
(a) the person making the gift is at the time contemplating the...
- Section 32 - Excluded property
The provisions of this Part shall not apply to— (a) agricultural land and crops thereon; or
(b) livestock, in various Districts set out in the Schedule:
West Pokot Wajir Samburu Lamu...
- Section 33 - Law applicable to excluded property
The law applicable to the distribution on intestacy of the categories of property specified in section 32 shall be the law or custom applicable to the deceased’s community or tribe, as the case may...
- Section 34 - Meaning of intestacy
A person is deemed to die intestate in respect of all his free property of which he has not made a will which is capable of taking effect.
- Section 35 - Where intestate has left one surviving spouse and child or children
(1) Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to— (a) the personal and household...
- Section 36 - Where intestate has left one surviving spouse but no child or children
(1) Where the intestate has left one surviving spouse but no child or children, the surviving spouse shall be entitled out of the net intestate estate to—
(a) the personal and household effects of...
- Section 37 - Powers of spouse during life interest
A surviving spouse entitled to a life interest under the provisions of section 35 or 36 of this Act, with the consent of all co-trustees and all children of full age, or with the consent of the court...
- Section 38 - Where intestate has left a surviving child or children but no spouse
Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be...
- Section 39 - Where intestate has left no surviving spouse or children
(1) Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority—
(a) father; or if dead...
- Section 40 - Where intestate was polygamous
(1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first...
- Section 41 - Property devolving upon child to be held in trust
Where reference is made in this Act to the “net intestate estate”, or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in...
- Section 42 - Previous benefits to be brought into account
Where—
(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or
(b) property has been appointed or...
- Section 43 - Presumption of survivorship
Where two more persons have died in circumstances rendering it uncertain which of them survived the other or others, the deaths shall, for all purposes of this Act, be presumed to have occurred in...
- Section 44 - Application of Part
(1) The provisions of this Part shall not, in cases of intestacy, apply to those types of property mentioned in section 32.
(2) The Minister may, after consultation with the Chief Justice, by order...
- Section 45 - No intermeddling with property of deceased person
(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or...
- Section 46 - Duties of officers in relation to protection, etc., of deceased’s property
(1) Whenever it becomes known to any police officer or administrative officer that any person has died, he shall, unless aware that a report has already been made, forthwith report the fact of the...
- Section 47 - Jurisdiction of High Court
The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:
Provided...
- Section 48 - Jurisdiction of magistrates
(1) Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49 of this Act, a Resident Magistrate shall have jurisdiction to entertain any application...
- Section 49 - Territorial jurisdiction of magistrates
The Resident Magistrate within whose area a deceased person had his last known place of residence shall, if the gross value of the estate of the deceased does not exceed one hundred thousand...
- Section 50 - Appeals to High Court
(1) An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final.
(2) An...
- Section 50A - Power to make rules
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- Section 51 - Application for grant
(1) Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.
(2) Every application shall...
- Section 52 - Wilful and reckless statements in application for grant
Any person who, in an application for representation, wilfully or recklessly makes a statement which is false in any material particular shall be guilty of an offence and liable to a fine not...
- Section 53 - Forms of grant
A court may—
(a) where a deceased person is proved (whether by production of a will or an authenticated copy thereof or by oral evidence of its contents) to have left a valid will, grant, in respect...
- Section 54 - Limited grants
A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.
- Section 55 - No distribution of capital before confirmation of grant
(1) No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets, or to make any division of property, unless and until the grant has been...
- Section 56 - No grant to certain persons
(1) No grant of representation shall be made—
(a) to any person who is a minor, or of unsound mind, or bankrupt; or (b) to more than four persons in respect of the same property.
(2) No grant...
- Section 57 - Grant to body corporate
No grant of representation shall be made to a syndic or nominee on behalf of a body corporate:
Provided that, where a body corporate applies for a grant of probate or (in the case of a trust...
- Section 58 - Number of administrators where there is a continuing trust
(1) Where a continuing trust arises—
(a) no grant of letters of administration in respect of an intestate estate
shall be made to one person alone except where that person is the Public Trustee or...
- Section 59 - Renunciation of executorship
Any person who has been appointed by a will as an executor thereof may, either by oral declaration before the court or by writing under his hand, renounce executorship, and shall thereafter be finally...
- Section 60 - Probate where there are several executors
When several executors are appointed, probate may be granted to them all simultaneously, or at different times.
- Section 61 - Discovery of codicil after grant of probate
(1) If a codicil is discovered after the grant of probate, a separate probate of that codicil may be granted to the executor, if it in no way repeals the appointment of executors made by the will....
- Section 62 - No grant of administration until citation issued to executor
When a person who has been appointed by a will is an executor thereof has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been...
- Section 63 - Grant of administration to universal or residuary legatee
When a deceased has made a will, but—
(a) he has not appointed an executor; or
(b) the only executors appointed are legally incapable of acting, or have renounced their executorship, or have died...
- Section 64 - Right to administration of representative of deceased residuary legatee
When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administered, his representative shall have the same right to administration...
- Section 65 - Grant of administration where no executor nor residuary legatee nor representative of legatee
When there is no executor, and no residuary legatee or representative of the residuary legatee, or if every such person declines or is incapable of acting, or cannot be found, the person or persons...
- Section 66 - Preference to be given to certain persons to administer where deceased died intestate
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- Section 67 - Notice of application for grant
(1) No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting...
- Section 68 - Objections to application
(1) Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by such notice as aforesaid,...
- Section 69 - Procedure after notice and objections
(1) Where a notice of objection has been lodged under subsection (1) of section 68, or no answer or no cross-application has been filed as required under subsection (2) of that section, a grant may be...
- Section 70 - Powers of courts
Whether or not there is a dispute as to the grant, every court shall have power, before making a grant of representation—
(a) examine any applicant on oath or affirmation; or
(b) call for further...
- Section 71 - Confirmation of grants
(1) After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to...
- Section 72 - Grants not to be confirmed in certain circumstances
No grant of representation shall be confirmed until the court—
(a) is satisfied that no application under Part III of this Act is pending; and
(b) has received a certificate from the Estate Duty...
- Section 73 - Duty of court to give notice to holder of grant to apply for confirmation
The court shall within one year from the date of any grant of representation, give notice to the holder of the grant to apply for confirmation thereof. Alteration and Revocation of Grants
- Section 74 - Errors may be rectified by court
Errors in names and descriptions, or in setting fourth the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation,...
- Section 75 - Procedure where codicil discovered after grant
If, after the grant of letters of administration with the will annexed or after confirmation thereof, a codicil be discovered, it may be added to the grant on due proof and identification, and the...
- Section 75A - Continuing trust arising
(1) If, after confirmation of the grant of letters of administration at any time there is a continuing trust and only one surviving administrator, that administrator shall without delay apply to the...
- Section 76 - Revocation or annulment of grant
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a) that the...