Kenya's Law of Succession Act, Cap 160 grants general testamentary freedom under Section 5, but Section 26 lets a spouse, child, or other dependant apply to court for reasonable provision from an estate that excludes them -- and in any case this framework governs only Kenya-situated assets, with property located in India remaining governed entirely by ordinary Indian succession law.
Kenya's own succession framework -- testamentary freedom with a dependants' safety net
Kenya's succession law is set out in the Law of Succession Act, Cap 160 (1972). Section 5 grants a
testator broad freedom to distribute their estate as they choose. That freedom is not absolute, though:
Section 26 lets a “dependant” apply to court for reasonable provision from an estate that a
will (or the intestacy rules) does not adequately provide for. A spouse or child can claim as of right,
regardless of prior maintenance; other relatives -- parents, grandparents, siblings -- or a person the
deceased maintained for at least two years before death can claim conditionally. Under Section 28, the
court weighs the estate's size, the dependant's needs, the closeness of the relationship, the deceased's
intentions, and the dependant's own conduct before ordering a lump sum, periodic payments, or a specific
asset share -- fair provision, not necessarily an equal split.
Why this framework does not touch assets located in India
Kenya's succession law applies to assets situated in Kenya; it has no bearing on immovable or movable
property located in India. For a Kenya-based person of Indian origin (or an Indian citizen resident in
Kenya) who dies owning property in India, the applicable Indian succession law depends on personal law
exactly as it would for anyone else -- the Hindu Succession Act, 1956 for Hindus, Sikhs, Jains and
Buddhists (relevant to much of Kenya's Gujarati and Punjabi-origin community, given its historical
roots); Muslim personal law for Muslims; and the Indian Succession Act, 1925 for Christians, Parsis, and
those who die leaving a valid will governing testamentary succession generally.
Obtaining a Succession Certificate or Probate from Kenya
Heirs based in Kenya seeking to access a deceased relative's Indian bank accounts, securities, or
movable assets typically need a Succession Certificate from the relevant Indian court (or Letters of
Administration/Probate where a will exists), and can pursue this through a Power of Attorney authorizing
a representative in India to file and pursue the application -- avoiding the need for the Kenya-based
heir to travel to India for most stages of the process.
Common mistakes NRIs in Kenya make with succession matters:
- Assuming Kenya's own succession rules or a Kenyan will automatically govern assets located in
India -- they do not; Indian assets follow Indian succession law.
- Not realizing that different Indian succession laws can apply to different assets depending on
personal law and the presence or absence of a valid will.
- Delaying the Succession Certificate/Probate application, which can hold up access to Indian bank
accounts and securities for an extended period.
