LAW OF SUCCESSION Lecture 2 14.5.05
AFRICAN CUSTOMARY LAW
African Customary Law was the predominant law of succession in the
period before the onset of colonialism. It was the law to which
governed the estate of deceased Africans before the onset of
colonialism. It provided for both testate and intestate succession.
Other laws were introduced with colonialism to complete African
customary law and Cap 160 was intended to completely replace African
customary law as the law of succession.
The 1897 Order in Council is credited with establishing the modern
Kenyan Legal System which provided that African Customary Law was
to apply to Africans with the condition that so long as it was not
repugnant to justice and morality. For this reason matters of
succession were to be governed by African Customary Law. the 1897
law did not deal with the position of the Africans who were considered
to be Westernised, there was a question mark as to whether this law
applied to those African who had converted to Christianity and adopted
western way of life. In those early days those Africans set to divorce
themselves from the operation of African Customary Law and they felt
that their personal matters, i.e. marriage divorce succession etc should
be governed by Western Law. there was an issue then as to whether
African customary law applied to the estate of such persons as the
legislation was silent on this issue. This issue was subsequently
considered by the courts in the case of Jembe v Nyondo and in the case
of Miney Francis v Kuri in the opinion of the court in the case of Jembe
v Nyondo Succession of a native Christian’s estate followed the law of
the tribe to which such Christian native belonged. Barth J. said on this
“…The fact that the deceased married a wife according to the rules of
the Anglican Church does not affect the Succession to his property.
Succession must be regulated by native law or custom.”
What happened in these two cases is that the court applied customary
law to the Westernised African. The assumptions by these Africans was
that once they adopted the Western way of life their law of succession
changed but the court is saying that matters of succession should be
dealt with under customary law. this is because the land tenure was
still subject to African Customary Law and the Western notion of
property ownership had not been introduced.
An attempt was made in 1897 to address this problem through the 1897
Natives Courts Regulation. Article 64 of the regulations provided that
African Christians were to be governed by the law that governed the
Indian Christians in India. The regulations however did not specify
however what law this was because there were two sets of law which
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, applied to Christians in India, there was the Indian Succession Act of
1865 and the English Law of Succession. Both laws were applying in
India at the time. The position was to be clarified in 1902 when the
African Christian Marriage and Divorce Ordinance was passed. Section
39 of the Ordinance provided that the English Law of Succession was to
apply to African Christians largely because after contracting a statutory
marriage the African was presumed to have discarded the tradition
African way of life thereby removing himself from the ambit of African
customary law i.e. 1902 legislation created two categories of Africans,
those that had changed their family law and those that were still
subject to African Customary Law.
This upgrading of the westernised Africans ended in 1904 when the
Native Christian Marriage and Divorce Ordinance of 1904 was passed
providing that African Customary Law of Succession applied to all
Africans irrespective of their religion. This remained the position until
1961 when the African Wills Ordinance of 1961 was passed. This
statute originated from the recommendations made by one Dr. Arthur
Philips in a report on Native Tribunals. Prior to 1961 an African could
not dispose off his property by a written will, there was no law under
which he could bring himself under testate succession and this statute
was passed to enable the African to dispose their property by written
will. The statute had the effect of bringing Africans under testate
succession. This statute dealt only with testation and therefore the
intestate succession to the estate of a deceased African remained
subject to African customary law. Philips in his report underlined the
need to provide the African with a suitable legal machinery through
which he could dispose off his modern property which could not
adequately be disposed off under African customary law. he argued in
his report that colonialism had brought with it new forms of property
ownership which were unknown to African Customary law. he further
argued that customary law could not be adjusted to deal with such
property. He was referring specifically to property such as shares in
limited liability companies insurance policies premium bonds money in
bank accounts etc. he recommended that a law similar to the English
Inheritance (Family Provisions) Act of 1938 be passed to enable elite
Africans deal with such property.
The 1961 Act was therefore modelled on the English Act and the 1961
Act remained in force until 1981 when it was repealed following the
coming into operation of the Law of Succession Act. Although intestate
succession was subject to African Customary Law in some instances the
Estates of deceased Africans intestates were brought under statute law
and this was mainly in cases where African customary law was found to
be inconsistent with justice and morality and the applicable statute in
this case was the Probate and Administration Act of 1881. This Act
was applied in two reported cases Re Maangi and Re Kibiego which
were decided in 1968 and 1972 respectively. In both cases the issue
This study source was downloaded by 100000858656319 from CourseHero.com on 02-16-2023 05:01:14 GMT -06:00
2
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AFRICAN CUSTOMARY LAW
African Customary Law was the predominant law of succession in the
period before the onset of colonialism. It was the law to which
governed the estate of deceased Africans before the onset of
colonialism. It provided for both testate and intestate succession.
Other laws were introduced with colonialism to complete African
customary law and Cap 160 was intended to completely replace African
customary law as the law of succession.
The 1897 Order in Council is credited with establishing the modern
Kenyan Legal System which provided that African Customary Law was
to apply to Africans with the condition that so long as it was not
repugnant to justice and morality. For this reason matters of
succession were to be governed by African Customary Law. the 1897
law did not deal with the position of the Africans who were considered
to be Westernised, there was a question mark as to whether this law
applied to those African who had converted to Christianity and adopted
western way of life. In those early days those Africans set to divorce
themselves from the operation of African Customary Law and they felt
that their personal matters, i.e. marriage divorce succession etc should
be governed by Western Law. there was an issue then as to whether
African customary law applied to the estate of such persons as the
legislation was silent on this issue. This issue was subsequently
considered by the courts in the case of Jembe v Nyondo and in the case
of Miney Francis v Kuri in the opinion of the court in the case of Jembe
v Nyondo Succession of a native Christian’s estate followed the law of
the tribe to which such Christian native belonged. Barth J. said on this
“…The fact that the deceased married a wife according to the rules of
the Anglican Church does not affect the Succession to his property.
Succession must be regulated by native law or custom.”
What happened in these two cases is that the court applied customary
law to the Westernised African. The assumptions by these Africans was
that once they adopted the Western way of life their law of succession
changed but the court is saying that matters of succession should be
dealt with under customary law. this is because the land tenure was
still subject to African Customary Law and the Western notion of
property ownership had not been introduced.
An attempt was made in 1897 to address this problem through the 1897
Natives Courts Regulation. Article 64 of the regulations provided that
African Christians were to be governed by the law that governed the
Indian Christians in India. The regulations however did not specify
however what law this was because there were two sets of law which
This study source was downloaded by 100000858656319 from CourseHero.com on 02-16-2023 05:01:14 GMT -06:00
1
https://www.coursehero.com/file/144564537/LAW-OF-SUCCESSION-LECTURE-2Bdoc/
, applied to Christians in India, there was the Indian Succession Act of
1865 and the English Law of Succession. Both laws were applying in
India at the time. The position was to be clarified in 1902 when the
African Christian Marriage and Divorce Ordinance was passed. Section
39 of the Ordinance provided that the English Law of Succession was to
apply to African Christians largely because after contracting a statutory
marriage the African was presumed to have discarded the tradition
African way of life thereby removing himself from the ambit of African
customary law i.e. 1902 legislation created two categories of Africans,
those that had changed their family law and those that were still
subject to African Customary Law.
This upgrading of the westernised Africans ended in 1904 when the
Native Christian Marriage and Divorce Ordinance of 1904 was passed
providing that African Customary Law of Succession applied to all
Africans irrespective of their religion. This remained the position until
1961 when the African Wills Ordinance of 1961 was passed. This
statute originated from the recommendations made by one Dr. Arthur
Philips in a report on Native Tribunals. Prior to 1961 an African could
not dispose off his property by a written will, there was no law under
which he could bring himself under testate succession and this statute
was passed to enable the African to dispose their property by written
will. The statute had the effect of bringing Africans under testate
succession. This statute dealt only with testation and therefore the
intestate succession to the estate of a deceased African remained
subject to African customary law. Philips in his report underlined the
need to provide the African with a suitable legal machinery through
which he could dispose off his modern property which could not
adequately be disposed off under African customary law. he argued in
his report that colonialism had brought with it new forms of property
ownership which were unknown to African Customary law. he further
argued that customary law could not be adjusted to deal with such
property. He was referring specifically to property such as shares in
limited liability companies insurance policies premium bonds money in
bank accounts etc. he recommended that a law similar to the English
Inheritance (Family Provisions) Act of 1938 be passed to enable elite
Africans deal with such property.
The 1961 Act was therefore modelled on the English Act and the 1961
Act remained in force until 1981 when it was repealed following the
coming into operation of the Law of Succession Act. Although intestate
succession was subject to African Customary Law in some instances the
Estates of deceased Africans intestates were brought under statute law
and this was mainly in cases where African customary law was found to
be inconsistent with justice and morality and the applicable statute in
this case was the Probate and Administration Act of 1881. This Act
was applied in two reported cases Re Maangi and Re Kibiego which
were decided in 1968 and 1972 respectively. In both cases the issue
This study source was downloaded by 100000858656319 from CourseHero.com on 02-16-2023 05:01:14 GMT -06:00
2
https://www.coursehero.com/file/144564537/LAW-OF-SUCCESSION-LECTURE-2Bdoc/
