The Law of Succession(Amendment) Act, 2019 (hereinafter ‘the Amendment Act’) was signed into law by President Uhuru Kenyatta on 17th November, 2021.
The Amendment Act has amended the Law of Succession Act, Chapter 160 Laws of Kenya, (hereinafter ‘the Act’), by adding the definition of a spouse and substituting the ‘meaning of a dependant’ (section 29 of the Act). The main purpose of the Amendment Act is to provide clarity on the controversial definition of a dependant and who can claim under dependancy.
The following are the changes introduced by the Amendment Act;
Inclusion of the meaning of ‘spouse’.
Previously, the interpretation section, that is, section 3 of the Act did not have the definition of a spouse. However, the word spouse is present in the definition of a wife. Section 3 of the Act defines a wife to include, ‘a wife who is separated from her husband and the terms ‘husband’ and ‘spouse’, ‘widow’ and ‘widower’ shall have a corresponding meaning’.
The Amendment Act has amended section 3 of the Act by adding the definition of a spouse as, ‘a husband or wife or wives recognised under the Marriage Act.’
By defining a spouse, the Amendment Act has restricted the meaning of a spouse to the confines of Section 6 of the Marriage, Act No. 4 of 2014 which recognizes only the following kinds of marriages; Christian, Civil, Customary, Hindu and Islamic marriages.
Section 29 on Dependants.
Section 29 of the Act defined Dependants as;
‘The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased prior to his death;
The deceased’s parents, step-parents, grandparents, grandchildren, step-children, children that the deceased took care of as part of his/her family and brothers, sisters, half-brothers, half-sisters that were maintained by the deceased prior to his/her death; and
In cases where the deceased was a woman, her husband if he was maintained by the deceased prior to her death.’
The Amendment Act has deleted this section and substituted it is as follows;
Section 29 (1) refers to a ‘dependant’ as;
‘The spouse and children of the deceased whether or not maintained by the deceased immediately prior to his death;
Deceased’s parents, step parents, grandparents, grand children, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, half-brothers, half-sisters maintained by the deceased before his demise.
2) Any other person not mentioned above can only claim by way of dependancy if he/she was maintained by the deceased for a period of two years prior to the deceased’s death.’
The effects of the above section are;
It provides that forthwith, widowers do not have to prove that they were maintained by their wives prior to their death for them to claim dependency;
It protects and strengthens the claims over the property of the deceased for spouses, children and the extended family; and
It distinguishes any legal claim over the deceased’s property by men and women who are not part of the deceased’s family unless they can provide the court with sufficient evidence showing that they were maintained by the deceased for a period of two years prior to the deceased’s death.
Please find a copy of the Amendment Act here.

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