1. PROPERTY RIGHTS, SUCCESSION LAW
AND MATRIMONIAL PROPERTY IN
KENYA
Presentation at Kileleshwa
Covenant Community Church –
Sarah’s Treasure (Women’s
Ministry)
18th August 2019
3. • Increasingly empowered women with independent earning
capacity.
• More women are getting married later in life.
• There has been an increase in matrimonial causes that play
out in the public eye – separation & divorce, adultery,
enforced polygamy etc.
• A new set of property laws was passed in 2012 with
recognition of matter such as matrimonial home, the rights of
spouses and those of children.
Where we are
4. • Property Rights for women – single, married and
separated/divorced/widowed women.
• Succession matters – testate and intestate succession.
• Rights of children in respect of property.
• Separation/Divorce and its implication on family property.
Areas to be covered
6. • Kenyan Constitution 2010 is categorical in its provisions:
40. (1) Subject to Article 65, every person has the right, either
individually or in association with others, to acquire and own
property––
(a) of any description; and (b) in any part of Kenya.
• The right provided in the constitution is two fold – acquisition
and ownership.
• Property is wide in its meaning and includes land, motor
vehicles, shares, intellectual property etc.
Constitutional Underpinnings
7. • Land Act provides for acquisition and recognizes ownership –
both individual and joint ownership.
• The possibility of individual and joint ownership extends also
to motor vehicles, shares and other assets.
• In the case of land it is important to note that spouses usually
own as “joint tenants”. This means that in the event of death
of one spouse, the other spouse takes the property.
• In the case of the matrimonial home, there are certain unique
rights recognized (even if a spouse is not registered). For
instance spousal consent is mandatory to sell or charge.
Land Act and other provisions of law
8. • Right of a woman to acquire and own property individually or
jointly.
• Right of a woman to charge and dispose of property. If
married, spousal consent is necessary for land.
• Right of a woman to take over as sole owner where there is
joint ownership and husband passes away.
• Right of woman to be consulted in matters relating to
matrimonial home before any action is taken in respect of the
same.
Summary of Property Rights
10. − “Testator” refers to the maker of a will. “Testament” is an old
English term for a Will. “Testate Succession” is succession where
there is a Will whilst “Intestate Succession” is where there is no
Will. “Estate” refers to the property of the deceased.
− “Executor” refers to the person appointed by the Testator to
oversee collection, management and distribution of his Estate.
“Administrator” is used in cases of Intestate Succession.
− “Codicil” refers to a document supplemental to a Will and which
either elaborates further or amends a Will.
− “Legacy” means a gift given under a Will. “Beneficiary” means a
person entitled to assets from the Estate (including legacies).
General Definitions
11. − This arises where there the deceased person has left a Will. A Will
can be oral (valid for three months) or written.
− Prior to being implemented, a Will needs to be presented in court
together with an application for grant of letters of probate.
− The Letters of Probate allow for collection and management of the
Estate. After a specific period (6 months) application can be made
for confirmation of the grant which allows for distribution.
− Generally the drafting of a Will reduces the chances of dispute.
Court may still vary terms of the Will to cater for beneficiaries
Testate Succession
12. − This is where there is no Will i.e. the deceased person had not left
a valid Will.
− In this case application will still need to made to court for grant of
letters of administration intestate which will need to be confirmed.
− The rules on distribution of assets in the case of Intestate
Succession are set out in the Law of Succession Act and follow the
formula set out in Part IV of the Act. It should be noted that only
the family members of the deceased can benefit.
− Most succession matters in Kenya are intestate and are more likely
to be contentious than where a Will exists. In addition to this,
assets are more likely to be lost where there is no Will.
Intestate Succession
13. − You ought to have a Will in place. The Will should be stored safely
e.g. in a safety deposit box or with a lawyer. The executors should
be notified.
− It is important for family members to know of the property that
you own or are in the process of acquiring.
− Where you are the beneficiary in a succession process, you should
insist on conclusion of the same to avoid challenges relating to
“multi – generational” succession.
− Try and ensure that you are aware of all beneficiaries of your
spouse e.g. former wives and children born outside wedlock. This
helps avoid unwelcome surprises.
Key Tips for Succession
15. General Legal Principles
• The Constitution recognizes family as the natural
and fundamental unit of society and necessary basis
of social order that enjoys protection of the state.
• Article 45 (3) of the Constitution – Parties to a
marriage are entitled to equal rights at the time of
the marriage, during the marriage and at the
dissolution of the marriage.
• Article 27 of the Constitution provides that no
person shall be discriminated on any basis including
gender.
16. Equal Status of Spouses
• Section 4 of the Act provides that a married
woman has the same rights as a married man:
a) to acquire, administer, hold, control, use and
dispose of property whether movable or
immovable;
b) to enter into a contract; and
c) to sue and be sued in her own name.
17. What is Matrimonial Property?
• Defined under Section 6 of the Matrimonial Property Act as:
a) Matrimonial home or homes (property that is owned or
leased by one or both spouses and occupied or utilized by
the spouses as their family home)
b) Household goods and effects in the matrimonial home
c) Any other immovable and movable property jointly owned
and acquired during the subsistence of the marriage.
Does not include:
a) Trust Property, including property held in trust under
customary law.
b) Property acquired or inherited before marriage
18. Ownership of Matrimonial Property
• Vests in the spouse according to the contribution of
either spouse towards its acquisition, and shall be
divided between spouses if they divorce.
• This means that unless the marriage is dissolved by
Court, there can be no division of matrimonial property
as in the case for judicial separation.
• However, a party to a marriage, even without the
divorce, can apply to court for declaration of
matrimonial property rights.
19. What is contribution?
• Means monetary and non monetary contribution and
includes:
a)domestic work and management of the matrimonial
home;
b)Child care;
c)Companionship;
d)Management of family business or property; and
e)Farm work;
NOTE: “family business” means any business which is (a)
run for the benefit of the family by both spouses or
either spouse;
and (b) generates income or other resources wholly or part
of which are for the benefit of the family;
20. How does one acquire interest in property
acquired before marriage?
• Section 9 of the Matrimonial Property Act
• Where one spouse acquires property before or
during the marriage and the property acquired
during the marriage does not become
matrimonial property, but the other spouse
makes a contribution towards the improvement
of the property, the spouse who makes a
contribution acquires a beneficial interest in the
property equal to the contribution made.
21. Spousal Liability in relation to Matrimonial
Property (Section 10 of the Act)
• Liability incurred by a spouse before the marriage
and relating to the property shall, after marriage,
remain the liability of the spouse who incurred it.
• Liability that was reasonably and justifiably
incurred shall, if the property becomes matrimonial
property be equally shared by the spouses, unless
they otherwise agree.
• Parties are to share equally:
a) Liability incurred during the subsistence of the
marriage for the benefit of the marriage; or
b) Reasonable and justifiable expense incurred for the
benefit of the marriage.
