
Inheritance laws in Kenya are shaped by two central systems: customary laws and statutory laws. Each system has principles and practices regarding how a deceased person’s estate is distributed among heirs. Understanding the differences between these two systems is crucial for grasping the country’s inheritance complexities.
Customary Inheritance Laws in Kenya

Customary inheritance laws in Kenya vary widely among the different ethnic communities, reflecting their unique cultural practices and beliefs. However, some standard features include:
Family Focus
In customary law, inheritance typically favors family members. Heirs are usually close relatives, such as children, siblings, or parents. Strangers or non-family members rarely inherit property.
Gender Roles
Traditional gender roles influence many customary laws. Property is often passed down through male descendants in patrilineal societies, while inheritance may favor female relatives in matrilineal societies.
Obligations and Status
The heir not only inherits property but also assumes responsibilities toward the deceased’s dependents, ensuring their welfare. This highlights the communal aspect of inheritance, where the heir acts on behalf of the entire family.
Variability
Since each community has its customs regarding inheritance, there is no single set of customary laws applicable to all Kenyans. This can lead to conflicts when different customs intersect.
How do customary laws on inheritance differ between various ethnic communities in Kenya?

Customary laws on inheritance in Kenya vary significantly across different ethnic communities and are influenced by cultural practices, beliefs, and social structures. Here are some key differences:
1. Patrilineal vs. Matrilineal Systems
Patrilineal Communities
In groups such as the Kikuyu and Maasai, inheritance laws typically follows a patrilineal system where male descendants pass down property.
For instance, Kikuyu customary law generally dictates that sons inherit their father’s property, while daughters are often excluded unless they remain unmarried.
Matrilineal Communities
In contrast, some communities like the Luhya practice matrilineality, where inheritance may favor female descendants.
Property can be passed down through the mother’s line, allowing daughters to inherit directly from their mothers.
2. Inheritance Rights of Women
Limited Rights
Across many ethnic groups, women often face restrictions in customary inheritance laws in Kenya.
For example, under Luo customary law, female children may receive less favorable treatment compared to their male siblings, reflecting a broader trend of gender discrimination in inheritance practices.
Emerging Changes
Despite traditional practices, there is a growing recognition of women’s rights to inherit property.
The Law of Succession Act aims to promote equality by ensuring both sons and daughters have equal rights to inherit from their parents, challenging entrenched customs favoring males.
3. Role of Marriage in customary Inheritance laws in Kenya
Bride Price and Dowry
In communities like the Luo and Kikuyu, the bride price or dowry payment can influence inheritance rights.
For instance, married daughters may be viewed as having “married out” and thus lose their claim to their parental estate, while sons retain full rights.
Polygamous Marriages
In communities that permit polygamy, such as the Maasai and Kikuyu, inheritance can become complex due to multiple wives and children.
Customary Inheritance laws in Kenya often dictate that property is divided among sons from different wives, sometimes leading to disputes over shares and rights.
4. Dispute Resolution Mechanisms
Elders vs. Courts
Customary inheritance laws typically rely on local elders or community leaders for dispute resolution regarding inheritance issues. This contrasts with statutory law, where formal courts handle such disputes.
The effectiveness of customary dispute resolution can vary widely depending on community norms and the willingness of parties to adhere to traditional practices.
5. Cultural Beliefs and Practices
Burial Customs
Different communities have unique beliefs about burial practices that can affect inheritance claims.
For example, among the Kikuyu, the burial site may influence who inherits property, as burial on family land can signify belonging and entitlement to that land.
Community Involvement
Customary laws often emphasize communal involvement in personal matters such as marriage and inheritance decisions, which are made considering family and community consensus rather than individual choice alone.
Statutory Inheritance Laws in Kenya

The statutory framework governing inheritance laws in Kenya is primarily encapsulated in the Law of Succession Act (Cap 160). This Act provides a more uniform approach to inheritance and aims to harmonize customary practices with modern legal standards. Key aspects include:
Equal Rights for Children
The Law of Succession Act ensures that all children have equal rights to inherit from their deceased parents, regardless of whether they were born within or outside of marriage.
Testate and Intestate Succession
The Act distinguishes between testate succession (where a valid will exists) and intestate succession (where no will exists). It provides clear guidelines on how estates should be distributed in both scenarios.
Precedence of Statutory Law
The Law of Succession Act generally takes over when customary laws conflict with statutory provisions. This helps to promote fairness and equality in inheritance matters.
Protection for Widows and Dependents
Statutory laws provide specific protections for widows and dependents, ensuring they receive a fair share of the estate even when customary laws may not give this guarantee.
How does the Law of Succession Act address conflicts between customary and statutory laws?
The Law of Succession Act (Cap 160) provides a legal framework for distributing estates upon death, ensuring that customary and statutory laws are considered. This Act aims to harmonize the two systems while respecting the rights of individuals, especially marginalized groups such as women and children.
Key Provisions Addressing Conflicts
Supremacy of the Constitution
The Act recognizes that all inheritance laws in Kenya, including customary laws, must align with the Constitution. If a customary practice contradicts constitutional principles, particularly those concerning equality and non-discrimination, such practices may be deemed invalid.
Intestate Succession
For people who die without a will (intestate), the Act stipulates that their estates should be distributed according to statutory rules rather than solely relying on customary practices. This is particularly significant in cases where customary law may favor male heirs or discriminate against women.
Recognition of Customary Law
The Act allows for applying customary inheritance laws in Kenya where applicable, provided it does not conflict with statutory provisions or constitutional rights. This means customary practices can be recognized but must be scrutinized for fairness and equality.
Judicial Interpretation
Courts play a vital role in interpreting inheritance disputes involving customary and statutory laws. They are tasked with ensuring that customary laws are applied consistently with constitutional values, which often leads to adjustments or rejections of discriminatory practices.
Promoting Gender Equality
The Act addresses historical injustices by ensuring equal rights for all children to inherit from their parents, regardless of gender or marital status. This significantly differs from many customary laws that traditionally favor male heirs.
Conclusion
While customary inheritance laws in Kenya reflect deep-rooted cultural traditions prioritizing family ties and gender roles, statutory laws aim to provide a more equitable framework for distributing a deceased person’s estate.
The coexistence of these systems can sometimes lead to conflicts, but efforts are made through legislation to ensure that all individuals receive fair treatment in matters of inheritance. Understanding these differences is essential for effectively navigating the complexities of inheritance law in Kenya.