Kenya’s Succession Law Is Colliding With Modern Families — and the Courts Want It Fixed

Kenya’s courts are openly signalling that the Law of Succession Act (Cap. 160) is straining under the weight of modern Kenyan family life — and that reform is no longer optional.

In recent days, High Court Judge Reuben Nyakundi has renewed the push for a review of succession law to reflect lived realities, including informal unions (“come-we-stay”), evolving customary practices, and persistent discrimination that still locks women and children into ruinous inheritance battles. 

Why the current law keeps producing “two families, one estate”

Succession disputes dominate Kenya’s family litigation for one simple reason: the law was built around a narrower idea of family.

Under the Law of Succession Act, “spouse” is tied to marriage recognised under the Marriage Act, not mere cohabitation. 

And while the Act recognises “dependants” beyond the nuclear unit, access often turns on proof: who was maintained by the deceased, who qualifies as a wife/husband in law, and who can document the relationship. 

That is the breeding ground for Kenya’s most common succession drama:

the “official” household versus the “hidden” household — a courtroom war that can last years, drain estates, and leave widows and children financially stranded while lawyers and delays consume what was left behind.

The “come-we-stay” question is already in court — but inconsistently

Kenyan courts have sometimes protected long-term cohabiting partners through doctrines like presumption of marriage, especially where the couple lived publicly as husband and wife. But this is not automatic, and it is highly fact-specific — meaning outcomes can vary sharply depending on evidence, witnesses, and judicial interpretation. 

That inconsistency is exactly what fuels calls for reform: families should not need to gamble their futures on whether a court accepts a relationship as “marriage-like” after death.

Children born out of wedlock: the constitutional direction is now clearer

On children’s inheritance rights, the legal ground has shifted decisively toward equality.

In FAAF v RFM & 2 others (Petition E035 of 2023), the Supreme Court emphasised constitutional equality and the best interests of the child, rejecting exclusionary approaches that punish children for the circumstances of their birth. 

This line of reasoning reinforces what many judges have been saying for years: succession law cannot be administered in a way that entrenches stigma and dispossession.

What the reform conversation is aiming to do

From the latest judicial commentary and public reporting, the reform thrust is not to “rewrite marriage” — it is to reduce injustice, reduce litigation, and align succession practice with the Constitution. 

Key ideas being discussed include:

• A clearer pathway for recognising long-term cohabiting partners in succession, based on defined proof thresholds (duration, public reputation, shared children, joint property, or other markers). 

• Streamlined identification of beneficiaries to prevent endless objections, parallel suits, and tactical delays that bleed estates dry. 

• Removing discriminatory remnants (especially those affecting women’s inheritance rights and customary practices that still operate as gatekeeping systems). 

Separately, Parliament has already had active amendment proposals on succession law in recent years (illustrating that legislative appetite exists, even if it is incremental and contested). 

The backlash risk: law reform meets culture politics

Any attempt to formally recognise cohabiting partners in inheritance will trigger resistance from conservative and religious constituencies — not only on moral grounds, but because inheritance is where family legitimacy gets publicly litigated.

That culture clash is unavoidable. But the courts’ message is blunt: the law must confront reality, because reality is already arriving at the courthouse every day.

Bottom line

Kenya’s succession system is being forced into a constitutional reckoning:

either it modernises to protect real families as they exist — or it continues to manufacture courtroom tragedies where the dead man’s wealth is transferred, not to heirs, but to delay, conflict, and legal fees.