Inheritance in light of the Mpango wa Kando Act 2021

Succession is one of the most emotive issues
that cut across societies and social classes.
Perhaps it has to do with the subtle sense
of power, validation and degree of financial
freedom that comes with inheriting mon-
ey and property one did not have.
Or maybe it has to do with the mix of emotions
that precedes it given that property and power
tend to shift hands after the death or departure
of a loved one. On November 17, the new Succes-
sion Act. 2021, was assented to law by president
Uhuru Kenyatta, eliciting lots of debate weeks
thereafter.
Fate ofFormer Spouses
The Act makes seemingly subtle. yet weighty
changes to the Law ofSuccessionAct (LSA) enact-
ed in 19S1.As one may imagine,40 years ago.suc-
cession was an entirely different conversation.
The new Act,sponsored by Homa Bay Town MP,
Peter Kaluma,sought to achieve gender equali-
ty on succession matters, while excluding corn-
munity land fmm the ambit of succession. These
facts notwithstanding the focus has largely been
on the trivial topic surrounding “secret wives”
and “side pieces”. There is more to the new Suc-
cession Act (2021) than illicit aflåirs and in what way they feature in this new law, making it im-
portant for everyone who will pass down pmp-
erty or hopes to inherit it, to understand what
these changes mean. “Ille new act amended sec-
tions 29,32,35 and 39 ofthe LSA.
Rose Mbanya, a family Law Specialist with
R.W Mbanya and Company Advocates has been
practicing family law för over 23 years. She says
there was never a law that explicitly allowed “se-
cret wives” to inherit the property of a deceased
person,however, in the previous Succession Act,
under section 29 (a) dependants of a man were
defined as “the wife or wives. or former wife or
wives, and the children of’ the deceased whether
or not maintained by the deceased immediate-
ly prior to his death”. The terms “former wife or
wives’ broadened the bracket of’ potential succes-
sors. All one needed was proofthat the deceased
was in one way or another married to them in
the past. And the would not be pres-
ent to confirm or deny the allegations, a fict that
exposed families to emotional turmoil and em-
barrassment and feelings of betrayal. Funerals
of prominent (and sometimes ordinary) people
have. for years mimicked theatrical stages where
surprise children and their parents show up to
claim a piece oft he decease&s property,
Ms Mbanya says the amended act replaced the
“wife” with “spouse” and deleted the terms
“former wife” or wives”, changes she
terms as significant in eliminating glar-
ing gaps in the previous Act.
“The changes provide clarity that it is
only current spouses, whether men or
women, who will have a right to inherit.
The act also ties itselfwith the Marriage
Act and the registration procedures
outlined in the Act, thus tymg lose ends.
I imagine that this new Act will raise a
propeHy constituted marriage as an in-
gredient to proper succession” she says.
In simple terms, former spouses will
not inherit the property of deLeasedin-
dividuals.
What’s in a marriage?
Excluding former spouses from suc-
cession and retaining existing ones as
the rightful successors takes us back to
the Marriage Act (2014) which precise-
ly explains who qualifies as a spouse. In
her practice, Mbanya has come across
multiple misconceptions about q,’hat
a marriage constitutes. Some imagine
that changing one’s surname in their
identity card and gracefully adopting
their partner’s surname automatical-
ly proves marriage. This is not the case
according to the Act. Other misconcep-
tions revolve around living for
more than two years. bearing children
or presenting an affidavit of marriage.
“The best way to prove marriage is by
presenting a marriage certificate,” says
Mbanya.
One may also prove marriage by pre-
senting a copy of the certificate, or

through an entry in marriage regis-
try maintained by the marriage regis-
tmr. To acquire a certificate of marriage,
one has to go through one of five mar-
riage types recognised in the marriage
act: civil. Islamic. Christian, customary
or Hindu marriages. Each type of mar-
riage follows a set of rules which are
lecognised and lespected by the Act. A
Christian marriage. for instance, is ex-
clusive and can only be monogamous
while a customary marriage is open
to polygamy – the Act upholds these
practices. If married under customary
practices,a couple is required to regis-
ter their union within six months, fail-
ure to which the marriage can be per-
ceived as void. Religious marriages are
to be registe1Vd at the registrar of mar-

riages and licensed ministers of faith
are for this task. In the case
ofa Christian marriage, the registration
has to be done within 14 days after a
chL11th wedding.
The Act also outlines circumstanc-
es under which a marriage can be de-
clared void. ‘br instance, failing to give
notice of the intent to marry, conduct.
ing a marriage ceremony where ei-
ther party is absent or entering into a
marriage for fraudulent purposes are
some of the factors that render a mar-
riage void. Overall, the Marriage Act is
very clear on every question surround-
ing the elements of a proper marriage
in Kenya and will be referred to during
succession procedures.

Gender Equality Clauses
-ITaditionally, succession has always
side-lined women as many cultures
exclude them from inheriting proper
ty Legally, these gender biases were
flected in the 1981 Act, under section 35
för instance, only a widow was bound
to lose inherited property once she re-
married, but the new Act presents sig-
nificant changes that close such reptvs.
sive gender gaps in the new Act. wid-
owers too will lose their deceased’s
wife’s p101k.rty ifthey choose to IVma1%
ry. Under section 39 of the 1981 Act, fa-
thers of the deceased were given pri-
ority in succession if their child had
no spouse or children, mothers would
come second.”l’he 2021 Act gives equal
distribution Of succession property to
both parents.
Lastly, to acknowledge that equali-
ty issues affect both genders, section
29 (c) was also amended to ensure that
men have equal right to inherit their
spouses property Initially, a man had
to prove that he was maintained by
his wifé prior to her death,which was
unfair given that women we:v never
t.’tsked with this burden of
ing forward,all spouses, male or female,
will only have to prove they mar-
ried to the deceased by presenting a
certificate of marriage during sUcccS-
sion pmed ures.
Children in Succession
With former spouses out of the pic-
ture and both genders catered for, it
is important to assess the impact of
the amendments on children. Mban-
ya notes that responsibility to a child
is not determined by marriage to the
chilcrs mother or fat her As long as one
sires a child in or out of wedlock, they
fcw that child’s overall
well-being and that child h’Ls a right to
inherit property according to the Sue
cession Act. Mbanya points Out that
Kenya’s justice system is pro children,
since it upholds children’s rights.

01Xlinarily, once a surviving spouse in-
herits their deceased partner’s proper-
ty, they have power to distribute it to oth-
er dependants, unless the deceased left
a will establishing who gets what. Such
powers leave child dependants at the
mercy of a surviving spouse.As a result,
this category of dependants is common-
ly disinherited, especially those born out
of wedlock, a fact that might explain why
Mqjority Leader Amos Kimunya proposed
the Children’s Act Amendment Bill 2021.
‘Ihe bill proposes a two-yearjail-term or a
Sh.500 ,000 fine for anyone who disinher-
its a child.
Elijah Bonyo, the head of Secretariat,
Joining Forces Alliance for Children in
Kenya-World Vision, says children are sup-
posed to be cared for under the family set-
up, which he further notes is identified in
the constitution as an important unit of
protection.
“But we have to ask ourselves how fami-
lies are formed in Kenya,” says Bonyq add-
ing that we cannot bury our heads in the
sand and assume that every child is born
in a properly constituted marriage.

Despite multiple laws and conventions
protecting children’s rights, the bigger
challenge, as Bonyo points out, is embed-
ded in societal norms and implementa-
tion issues when it comes to policies and
legal framewotks such the new Act.
It is known that a child born outside
marriage is unlikely to get a fair share of
inherited property.
While the succession Act directs chil-
dren of the deceased (or their adult rep-
resentatives) to apply to the court if they
feel that distribution of’ property was un-
fäirly done, it would be injudicious to as-
sume that all children born out of mar-
riage have equal access tojustice.
Vulnerable Children
The constitution clearly identifies chil-
dren as a vulnerable group. And the de-
glees ofvulnerability differ. Or phans,chil-
dren born to teenage mothers, those born
into low-income families are more vulner-

able, exposing them to abuse and unfair
treatment.
On succession matters, a court case can
drag for years, even decad during which
those involved will spend lots of money
attending court mentions and consulting
lawyers.
Needless to mention, a vulnerable child
or their representative are likely to focus
more on basic needs while avoiding “un-
necessary expenditure” on court cases. It
is therefore time we re-evaluated how we
perceive and tleat childlen during succes-
sion. Is it possible to settle succession is-
sues involving children (born within or
outside the marriage) without having to
resort to never-ending court battles? Soci-
ety can condemn illicit affairs, but cannot
simply wish away the resulting children
or punish those born outside a tradition-
al family set-up.

Loopholes and challenges
Finally, the law will always have loop-
holes, and even when amendments are
suggested to close them, others are cleat-
ed. One of the bigest concerns in the suc-
cession Act, as Mbanya explains, is wheth-
er a child whom the deceased maintained
can lay claim on their property Section
29 (b) maintains that “children whom the
deceased had taken into his family as his
own” qualify as dependants. The state-
ment is slightly vague and open to mul-
tiple interpretations, though Mbanya ex-
plains that the child or their represent-
ative has to prove that the deceased was
at least “maintaining” them consistently
two years prior to their death.An adopt-
ed child, a relative’s child whom the de-
ceased cared for or even a “secret lover’s”
child could fall under this category of de-
pendants, thus creating a loophole.
On implementation challenges, Mban-
ya says that many marriages in Kenya are
still not propefly documented and this
may pose succession dilemmas for many.
She however adds that the succession
Act provides an excellent opportunity to
spread information on the Marriage Act.

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