Exemption of Public Educational Institutions from County Land Rates in Kenya

Public educational institutions, including public schools, are generally exempt from county land rates where the land is used for the statutory exempt purpose. The exemption is now expressly provided for under section 38 of the National Rating Act, No. 15 of 2024, which came into force on 24 December 2024.

However, the precise position depends on the nature and use of the land, the period for which rates are being demanded, the ownership of the property and whether any part of the land is being used for profit or residential purposes.

1. The current statutory exemption

The principal provision is section 38 of the National Rating Act, 2024.

Section 38(2) provides that a County Executive Committee Member shall not charge rates for land used exclusively for public purposes.

More specifically, section 38(3)(d) provides that valuation for purposes of rating shall not be conducted in respect of land used for “public educational institutions and libraries.”

This is a significant statutory protection for public schools.

Accordingly, where land is genuinely used as a public educational institution, the County ordinarily has no basis for subjecting that land to valuation for purposes of imposing ordinary land rates under the National Rating Act.

The exemption is, however, subject to the proviso in section 38 that the exemption does not apply to land used for profit or residential purposes.

2. The exemption existed under the previous law

Where a County Revenue Authority is demanding arrears relating to a period before 24 December 2024, the applicable legislation must also be considered.

Before the National Rating Act came into force, the relevant provisions were contained in the Valuation for Rating Act, Cap. 266.

Section 27(1)(d) of that Act provided that no valuation for rating purposes was to be made in respect of land used directly and exclusively for:

“educational institutions (including public schools within the meaning of the Basic Education Act...)”

The provision also extended to residences of students provided directly by educational institutions or forming part of, or ancillary to, educational institutions.

The statutory proviso excluded land used for profit or, subject to specified exceptions, residential purposes.

The former Rating Act, Cap. 267 also operated together with the Valuation for Rating Act in the rating regime.

The Rating Act and Valuation for Rating Act were subsequently repealed by the National Rating Act, 2024, which commenced on 24 December 2024.

Consequently, where a County is demanding historical arrears, it is important to identify the particular years for which the rates are allegedly due rather than treating the entire demand as governed by the current Act.

3. The courts have recognised the exemption for educational institutions

There is a particularly relevant Kenyan decision on this issue.

In Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR, the Environment and Land Court at Machakos considered a rates demand of approximately Kshs. 58 million in respect of property used for religious and educational purposes.

The County argued, among other things, that the schools operating on the property were commercial institutions because students paid fees.

The court rejected that argument on the evidence before it. Justice Angote held that section 27(1)(d) of the Valuation for Rating Act exempted land used for educational purposes, subject to the statutory exclusion relating to land used for profit.

Importantly, the County had not produced evidence demonstrating that the schools were being operated for profit. The court consequently held that the demand for rates was unlawful and granted the relief sought by the applicant.

The decision is particularly useful because it demonstrates that the mere fact that students pay school fees does not, without more, establish that land is being used for profit for purposes of the statutory rating exemption.

The critical question is the actual character and purpose of the use of the land.

4. “Public school” and “commercial school” should not automatically be treated as the same

The distinction between a public educational institution and a private or commercial educational enterprise is important.

Section 38(3)(d) of the National Rating Act expressly refers to public educational institutions and libraries.

Therefore, where the property is occupied and used by a public school for ordinary educational purposes, the statutory exemption is considerably stronger.

A County Revenue Authority should not simply assume that land is rateable because:

• students pay fees;
• the institution collects money;
• the institution has income;
• the institution operates a school canteen;
• the school has boarding facilities; or
• the school has other incidental revenue-generating activities.

The legal question is whether the land is being used for the exempt educational purpose or whether it is being used for a separate profit-making purpose within the meaning of the statutory proviso.

The decision in Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR is useful in this respect because the court required evidence establishing that the school was in fact operated for profit before the exemption could be displaced.

5. Incidental commercial use may require separate consideration

The exemption should not, however, be interpreted as an absolute exemption covering every activity conducted on land belonging to a public school.

For example, a school may have land containing:

• classrooms and laboratories;
• administration offices;
• teachers' accommodation;
• boarding facilities;
• playing fields;
• a school library; and
• other facilities directly connected with education.

These uses would ordinarily have a strong connection with the educational purpose.

But suppose part of the school's land is separately leased to a commercial entity for a supermarket, petrol station, commercial office, private residential development or other independent profit-making enterprise.

The County may then have an arguable basis for treating that portion differently.

The wording of section 38 must therefore be applied to the actual use of the particular land or portion of land rather than merely to the identity of the registered proprietor.

6. Payment of fees does not necessarily destroy the exemption

This is an issue likely to arise where the County argues that a school cannot be exempt because it collects fees.

That argument should be approached carefully.

The fact that an educational institution receives fees does not necessarily mean that the land is being used for profit.

In Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR, the County made substantially that argument. The court nevertheless found that the County had failed to establish that the schools were being operated for profit and held the rates demand unlawful.

The focus should therefore be on the purpose and character of the land use, rather than merely the existence of revenue.

For a public school, this distinction is particularly important because the collection of fees or other statutory charges may form part of the financing of educational services without converting the institution into a profit-making commercial enterprise.

7. Ownership of the land is also important

The legal analysis should also establish who owns the land.

There is an important distinction between:

• land registered in the name of the National Government;
• land held by a county government;
• land vested in another public body;
• land registered in the name of a school or educational trust; and
• privately owned land upon which a public school operates.

The treatment of public land may involve the statutory regime concerning contribution in lieu of rates, rather than ordinary rates imposed on private rateable property.

Under the former regime, for example, section 25 of the Valuation for Rating Act dealt with the basis upon which public land was valued for purposes of contributions in lieu of rates.

The current National Rating Act contains its own provisions concerning public land and contributions in lieu of rates.

Consequently, before responding to a County's demand, the school's title and the legal status of the land should be established.

8. The County cannot rely solely on its valuation records

The fact that a property appears on a County valuation roll or rates account does not necessarily resolve the question of whether the property is legally rateable.

If the property falls within a statutory exemption, the County must apply the exemption.

This principle is particularly relevant where a public school has been incorrectly entered as an ordinary rateable property.

In Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR, the County sought to justify its demand partly on the basis of its records concerning the property's use. The court nevertheless considered the statutory exemption and the evidence concerning the actual use of the property.

A school receiving a rates demand should therefore ask the County to identify:

1. the statutory provision under which the rates are demanded;
2. the valuation roll in which the property appears;
3. the registered owner;
4. the assessed rateable value;
5. the period to which the demand relates;
6. the basis upon which the County considers the land to be rateable;
7. whether the County alleges that the land is being used for profit; and
8. the evidence supporting that allegation.

9. The constitutional framework

County governments derive their power to impose property rates from Article 209(3)(c) of the Constitution of Kenya, 2010.

That provision gives county governments power to impose property rates.

However, the power to impose rates is not unlimited.

The County must exercise its rating power within the framework established by national legislation, including the National Rating Act and any applicable county legislation.

The principle that a public authority must act within the limits of the power conferred upon it is well established in Kenyan administrative law.

In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court affirmed the fundamental principle that jurisdiction is derived from the Constitution or statute and cannot simply be assumed.

Similarly, in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR, the Court of Appeal emphasised the importance of legality and lawful exercise of statutory powers by public bodies.

A County Revenue Authority therefore cannot impose or recover a charge merely because its internal records indicate that an amount is outstanding. The demand must have a lawful statutory foundation.

10. What should a public school do upon receiving a rates demand?

A public school that receives a rates demand should not simply ignore it.

A formal objection or response should be prepared identifying the statutory exemption and providing evidence of the school's status and use of the property.

The response should ordinarily attach, where available:

• the title or lease;
• evidence establishing that the institution is a public school;
• registration or establishment documents;
• evidence showing the actual use of the property;
• the school's physical development or site plan;
• relevant correspondence with the County;
• previous exemption correspondence, if any; and
• the County's rates demand and relevant valuation records.

The school should expressly invoke section 38(3)(d) of the National Rating Act, 2024 where the demand concerns the current rating regime.

For historical demands, the response should additionally invoke section 27(1)(d) of the former Valuation for Rating Act, Cap. 266, where applicable.

11. The position in summary

The legal position can therefore be summarised as follows:

First, public educational institutions are expressly recognised as exempt from valuation for rating purposes under section 38(3)(d) of the National Rating Act, 2024.

Second, land used exclusively for public purposes is protected under section 38(2).

Third, the exemption is subject to the statutory qualification concerning land used for profit or residential purposes.

Fourth, for periods governed by the previous rating regime, section 27(1)(d) of the Valuation for Rating Act, Cap. 266 expressly exempted land used directly and exclusively for educational institutions, including public schools.

Fifth, the decision in Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR provides useful judicial authority on the application of the educational-institution exemption and demonstrates that the County must establish the factual basis for alleging that an educational institution is being operated for profit.

Sixth, the ownership and actual use of the land must be examined carefully, particularly where the property is public land or where only part of the property is used for educational purposes.

Conclusion

A County Revenue Authority cannot properly demand ordinary land rates from a public school without considering the statutory exemption applicable to public educational institutions.

Where the land is used for the public educational function, section 38 of the National Rating Act, 2024 provides a clear statutory basis for exemption from valuation and rating.

Where the demand relates to an earlier period, the corresponding exemption under section 27(1)(d) of the Valuation for Rating Act, Cap. 266 should be considered.

The strongest response to a rates demand should therefore not merely state that the school is “government property” or that it is a “public institution.” It should establish the ownership, statutory status and actual use of the land, identify the applicable rating legislation for each period claimed, and expressly invoke the statutory exemption.

Where the County alleges that the property is being used for profit, the school should require the County to identify the factual and legal basis for that allegation. The decision in Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR demonstrates the importance of evidence on this issue.

Accordingly, where a public school has received a substantial rates demand, the matter should be formally challenged rather than the demand being accepted at face value.

Contentious Probate and Succession Disputes in Kenya: Key Issues, Remedies and the Proper Forum

When an estate is disputed, the question is rarely simply, “Who should inherit?”

A succession dispute may involve the validity of a Will, the circumstances in which it was made, whether a person is entitled to reasonable provision, who qualifies as a beneficiary or dependant, whether an executor or administrator has properly performed their duties, or whether a particular asset actually belonged to the deceased.

These questions can become complex because different disputes may call for different remedies and, in some circumstances, may fall within the jurisdiction of different courts.

In Kenya, contentious probate and succession disputes are principally governed by the Law of Succession Act, Cap. 160, together with the Probate and Administration Rules and the constitutional and statutory provisions governing the jurisdiction of the courts.

The starting point in any contested estate should therefore be to identify the real dispute, the appropriate remedy, and the correct forum before substantial litigation costs are incurred.

1. Challenging the validity of a Will

A Will is an important expression of a person's testamentary wishes, but its existence does not necessarily make it valid or enforceable.

Section 5 of the Law of Succession Act permits a person of sound mind who is not a minor to dispose of their free property by Will. The Act, however, imposes important limitations on testamentary freedom and provides circumstances in which a Will or part of it may be rendered invalid.

Testamentary capacity

One of the most common challenges concerns the testator's mental capacity.

Section 5(3) of the Law of Succession Act provides that a person making a Will is presumed to be of sound mind unless, at the time of executing the Will, they were in such a state of mind—whether because of mental or physical illness, drunkenness or another cause—as not to know what they were doing. The burden of proving lack of testamentary capacity rests upon the person alleging it.

The fact that a testator was elderly, ill or receiving medical treatment does not, by itself, establish lack of testamentary capacity. The relevant question is the testator's state of mind at the time the Will was made.

The courts have consistently treated testamentary capacity as a question of fact to be determined from the evidence. In In re Estate of G.K. (Deceased) [2017] eKLR, the court considered the requirements surrounding testamentary capacity and the circumstances in which a Will may properly be challenged.

Evidence may include medical records, evidence from the advocate who prepared the Will, the attesting witnesses, persons who interacted with the testator around the relevant period, and evidence concerning the testator's conduct and understanding.

Fraud, coercion, undue influence and mistake

Section 7 of the Law of Succession Act provides that a Will, or part of a Will, is void where its making was caused by fraud or coercion, or by such importunity as deprived the testator of free agency, or by mistake.

The circumstances surrounding the preparation and execution of a Will can therefore become highly significant.

Questions may arise where:

• a beneficiary was closely involved in preparing the Will;
• the testator was dependent upon or vulnerable to another person;
• the Will substantially departs from previous testamentary wishes;
• the testator was allegedly pressured to exclude particular family members;
• the signature or thumbprint is disputed;
• the contents of the Will were allegedly not explained to an illiterate testator; or
• there are other suspicious circumstances surrounding its preparation or execution.

However, suspicion alone is not necessarily sufficient to invalidate a Will. The party challenging the Will must establish the legal ground relied upon with sufficient evidence.

Formal validity and execution

Section 11 of the Law of Succession Act sets out the formal requirements for a written Will. Among other requirements, the testator must sign or affix their mark to the Will, and the Will must be attested by at least two competent witnesses in the manner prescribed by the Act.

Accordingly, where execution is disputed, evidence from the attesting witnesses and the advocate or other person who prepared or supervised execution of the Will may become particularly important.

A challenge may therefore concern not only what the Will says, but also whether it was properly made and executed.

2. Reasonable provision for dependants

A valid Will does not necessarily end every succession claim.

Kenyan law recognises testamentary freedom while also protecting certain dependants who have not been adequately provided for.

Section 26 of the Law of Succession Act empowers the court, upon an appropriate application, to make reasonable provision from the deceased's net estate where the disposition made by Will, by gift in contemplation of death, under the law of intestacy, or through a combination of these, has not made reasonable provision for a dependant.

This is an important distinction.

A dependant may not necessarily be asking the court to declare the Will invalid. Instead, the complaint may be that even though the Will is valid, the provision made for the dependant is inadequate.

In determining whether to make an order for reasonable provision, the court exercises a statutory discretion. Section 27 permits the court to order a specific share of the estate, a lump sum, periodic payments or another appropriate form of provision.

Who is a dependant?

Section 29 defines the persons who qualify as dependants for purposes of Part III of the Law of Succession Act.

The first category includes the spouse or spouses and children of the deceased, whether or not they were maintained by the deceased immediately before death. The second category includes specified relatives and other persons who were being maintained by the deceased immediately before death.

The distinction is important because persons falling within the second category may have to establish actual maintenance or dependency.

In Okello v Onyango (Succession Appeal E002 of 2022) [2023] KEHC 22828 (KLR), the High Court emphasised that an application for reasonable provision under section 26 is available only to persons who fall within the statutory definition of a dependant under section 29. The court distinguished spouses and children, who fall within the first category, from other relatives who must establish dependency.

Similarly, in In re Estate of Stanley Paul Buliba (Deceased) [2023] KEHC 2702 (KLR), the court emphasised that “dependant” is a technical statutory term in the context of Part III of the Law of Succession Act and should not simply be equated with everyone who may, in an ordinary sense, have depended upon the deceased during their lifetime.

A reasonable-provision claim should therefore be approached as an evidence-based statutory claim rather than merely an assertion that the claimant was a member of the deceased's extended family.

3. Disputes over beneficiaries, spouses and dependants

Succession disputes frequently arise because parties disagree about who is entitled to participate in the estate.

Questions may include:

• Was the claimant legally married to the deceased?
• Was there more than one recognised spouse?
• Is a particular person a child of the deceased?
• Was a child adopted or otherwise taken into the deceased's family?
• Was a relative being maintained by the deceased?
• Is a person claiming under the Will actually entitled to the property in question?
• Has a beneficiary been deliberately or inadvertently left out of the proceedings?

These questions are significant because the identity of the beneficiaries determines the manner in which an estate may ultimately be administered and distributed.

Evidence may include marriage records, birth certificates, adoption documents, identity records, correspondence, financial records and testimony from persons familiar with the family circumstances.

Where dependency is disputed, evidence of financial or other support provided by the deceased before death may become critical.

4. Disputes concerning estate assets

Another major category of contentious succession litigation concerns the assets said to form part of the deceased's estate.

The succession court must establish the property available for administration and distribution. But not every dispute concerning property associated with a deceased person is necessarily a succession dispute.

For example, there may be a dispute as to whether:

• land registered in another person's name was actually beneficially owned by the deceased;
• property was held on trust;
• the deceased had already transferred an asset during their lifetime;
• a third party purchased property from the deceased;
• property was jointly owned;
• property was unlawfully transferred before or after death; or
• a third party has an independent proprietary claim.

The distinction between succession and ownership can therefore be decisive.

In Isaya Masira Momanyi v Daniel Omwoyo & Another [2017] eKLR, the court recognised that disputes concerning ownership of land between an estate and third parties are matters for determination in the appropriate land forum rather than matters to be conclusively determined through succession proceedings.

Similarly, in In re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR, the High Court explained the distinction between the probate court's mandate to administer and distribute an estate and disputes concerning proprietary rights in land.

More recently, in Njuguna (Suing in his own capacity and in his capacity as the personal representative of the Estate of Monicah Wanjiku Thuo (Deceased)) & another v Mwaura (Sued as the personal representative/administrator of the Estate of the Late Paul Mwaura Thuo (Deceased)) [2024] KEELC 3772 (KLR), the Environment and Land Court considered the relationship between succession jurisdiction and disputes concerning land, noting the statutory and procedural distinction between inheritance and distribution of land under succession law and independent disputes concerning land rights.

The practical lesson is that a party should not assume that every dispute concerning property forming part of an estate belongs before the probate court.

5. Identifying the correct forum

This is one of the most important considerations in contentious succession litigation.

Section 47 of the Law of Succession Act gives the High Court jurisdiction to entertain applications and determine disputes under the Act. Magistrates' courts may also exercise succession jurisdiction where authorised by law and within their jurisdictional limits.

The Constitution, however, separately establishes the Environment and Land Court to determine disputes relating to the environment and the use and occupation of, and title to, land.

The distinction becomes particularly important where an estate dispute involves land.

A dispute between beneficiaries concerning the inheritance or distribution of land forming part of the deceased's estate will generally be dealt with through the succession process.

An independent dispute concerning title, ownership, use or occupation may, however, fall within the jurisdiction of the Environment and Land Court.

The courts have repeatedly emphasised this distinction.

In Njoroge v Njoroge & another (Environment & Land Case 36 of 2023) [2023] KEELC 21808 (KLR), the Environment and Land Court held that a dispute concerning the mode of distribution of a deceased person's estate was properly a succession matter and not a dispute concerning the use, occupation or title to land falling within the ELC's jurisdiction.

Similarly, in Muriu & 3 others v Onesmus & 2 others (Environment & Land Case E061 of 2022) [2023] KEELC 22230 (KLR), the court recognised the separate legal regimes governing succession and land disputes and referred to the applicable practice directions, which provide that cases concerning inheritance, succession and distribution of land under the Law of Succession Act should continue to be filed and heard by the High Court or competent Magistrates' Courts.

The position is therefore not that the ELC has no connection whatsoever with estate-related land disputes. Rather, the critical question is what the dispute is actually about.

In Njoroge & another v Kinuthia (Environment and Land Case E126 of 2025) [2026] KEELC 185 (KLR), the court considered the interaction between section 47 of the Law of Succession Act and the jurisdiction of the Environment and Land Court. The decision illustrates the importance of identifying whether the dispute concerns succession and distribution or an independent proprietary dispute concerning land.

The same issue was considered in In re Estate of Marko Mukhweso Muidakho (Deceased) [2026] KEHC 1702 (KLR), where the High Court emphasised that the fact that a dispute touches upon land does not automatically remove it from the jurisdiction of the succession court where the substance of the dispute concerns administration of the deceased's estate.

The question is therefore not simply whether the property is land. It is what legal issue the court is being asked to determine.

6. Challenging a grant of representation

A further source of contentious litigation is the grant of representation itself.

A grant may be challenged where, for example, the person who obtained it allegedly concealed material information, made a false statement, failed to disclose beneficiaries, or otherwise obtained the grant through defective or improper proceedings.

Section 76 of the Law of Succession Act provides the principal statutory grounds for revocation or annulment of a grant.

These include circumstances where:

• the proceedings to obtain the grant were defective in substance;
• the grant was obtained fraudulently by making a false statement or concealing something material;
• an essential allegation was made falsely;
• the person to whom the grant was made has failed to administer the estate diligently;
• the administrator has failed to produce inventories or accounts when required; or
• the grant has become useless or inoperative.

In In re Estate of the Late Kimeu Muthembwa Mbithi (Deceased) [2025] KEHC 17270 (KLR), the High Court reiterated the distinct role of the succession court in identifying the free property of the deceased, ascertaining beneficiaries and supervising distribution.

Revocation is therefore not simply a mechanism for correcting an unpopular distribution. The applicant should identify and prove a statutory ground under section 76.

7. Challenges to executors and administrators

Personal representatives occupy a position of significant responsibility.

Their statutory duties include collecting the deceased's free property, paying debts and expenses, preparing inventories and accounts, and distributing the remaining estate in accordance with the Will or applicable law.

Section 83 of the Law of Succession Act sets out the duties of personal representatives.

Disputes may therefore arise where an administrator or executor is alleged to have:

• failed to disclose estate assets;
• sold or transferred estate property improperly;
• failed to account for estate income;
• failed to pay legitimate debts;
• distributed assets contrary to the confirmed grant or Will;
• delayed administration without justification; or
• mixed estate property with personal property.

Where such conduct is established, the court may require accounts, issue directions concerning administration or, where the statutory requirements are met, revoke the grant.

The importance of the personal representative's duty to account was underscored in In re Estate of Patrick Mwangi Githinji (Deceased) [2025] KEHC 6867 (KLR), where the High Court considered questions concerning the administration of an estate and the court's jurisdiction over disputes arising within succession proceedings.

8. The importance of identifying the real dispute

A common mistake in estate litigation is to begin with the remedy rather than the underlying dispute.

For example, a party may seek revocation of a grant when the real dispute concerns ownership of land. Another may challenge a Will when the real complaint is that a dependant was inadequately provided for.

These are not necessarily the same claims and may require different evidence, procedures and remedies.

The principle that jurisdiction flows from the Constitution or statute is well established. In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court held that a court's jurisdiction flows from either the Constitution or legislation, or both, and a court cannot arrogate to itself jurisdiction beyond what the law permits.

Accordingly, a succession court should not be invited to determine an issue that properly belongs to another specialised forum merely because that issue arises in the broader context of an estate.

The courts have stressed that jurisdiction is determined by the nature and substance of the dispute, rather than merely by the labels placed upon the pleadings.

Early legal analysis can therefore help determine:

1.       What exactly is being disputed?

2.       Is the dispute about succession, administration or proprietary ownership?

3.       What statutory remedy is available?

4.       Who bears the burden of proof?

5.       What evidence is required?

6.       Which court has jurisdiction?

7.       Can the issue be determined within the existing succession cause, or is separate litigation necessary?

9. Evidence is often decisive

Contentious probate matters are rarely determined by allegations alone.

Where a Will is challenged, relevant evidence may include the original Will, evidence from attesting witnesses, the advocate who prepared the Will, medical records, handwriting or signature evidence, previous Wills, correspondence and evidence concerning the circumstances surrounding execution.

In reasonable-provision claims, evidence concerning the claimant's relationship with and dependency upon the deceased, the deceased's assets and liabilities, the claimant's financial circumstances and the reasons for the provision made under the Will may become relevant.

In disputes over estate assets, title documents, sale agreements, bank records, company records, trust documents and evidence of possession or beneficial ownership may be critical.

The earlier the evidence is preserved and evaluated, the easier it may be to identify the strongest legal route.

10. A practical approach to contentious estates

When an estate becomes disputed, parties should consider taking a structured approach rather than immediately commencing multiple proceedings.

First, identify the estate

Determine what property, liabilities, interests and obligations actually belonged to the deceased at death.

Second, establish the parties

Identify the executors or administrators, beneficiaries, dependants and any third parties asserting an interest.

Third, identify the precise dispute

Is the challenge directed at the Will, the beneficiaries, the grant, the administration of the estate, or ownership of a particular asset?

Fourth, determine the appropriate remedy

Depending on the circumstances, the appropriate application may involve an objection to a grant, revocation or annulment, an application for reasonable provision, directions concerning administration, an objection to confirmation, or separate civil or land proceedings.

Fifth, confirm jurisdiction before filing

A claim filed in the wrong forum can result in delay, additional costs and potentially significant procedural complications.

This is particularly important where succession proceedings overlap with disputes concerning land or proprietary rights.

Conclusion

Contentious probate and succession disputes in Kenya involve much more than determining who receives an inheritance.

A disputed estate may require the court to determine whether a Will is valid, whether a testator had testamentary capacity, whether a Will was procured through fraud or undue influence, whether a dependant has been adequately provided for, whether a claimant qualifies as a beneficiary, whether an administrator has properly discharged their duties, or whether a disputed asset actually forms part of the deceased's estate.

Most importantly, not every dispute involving an estate is necessarily a succession dispute for determination within the probate court.

The proper approach is to identify the real issue, determine the applicable legal remedy, assess the evidence required, and establish the appropriate forum at the earliest possible stage.

Early and accurate identification of these issues can prevent unnecessary litigation, reduce procedural delays and help protect the value of the estate for those ultimately entitled to it.

This article is intended for general information only and does not constitute legal advice. The appropriate legal strategy will depend on the facts and circumstances of each estate.

 

Restoration of a Struck-Off Company and Creditors’ Rights: The Case of Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2021] eKLR

The striking off of a company from the Register of Companies does not necessarily extinguish the rights of its creditors or bring an end to the remedies available to them.

Under the Companies Act, 2015, a company that has been dissolved following striking off may, in appropriate circumstances, be restored to the Register. Restoration may therefore provide a creditor with a means of reviving the company's legal existence for purposes of pursuing a claim or enforcing a debt.

The High Court considered the statutory safeguards applicable to striking off and restoration in Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2021] eKLR. The decision underscores the importance of complying with the statutory procedure governing the removal of companies from the Register and the legal consequences that follow upon dissolution.

The Court's consideration of the statutory framework demonstrates that striking off should not be viewed as an absolute bar to the enforcement of a creditor's rights. Where the statutory conditions for restoration are satisfied, the company may be restored to the Register, with the effect that the legal consequences prescribed by the Companies Act follow from such restoration.

The position may therefore be stated as follows:

The dissolution or striking off of a company does not, in every case, permanently extinguish the rights of its creditors. A creditor may, subject to the statutory requirements and applicable limitation periods, seek restoration of the dissolved company to the Register and thereafter pursue the company's outstanding liabilities.

Authority:

1. Kenya Revenue Authority v Dream Dressing and Household Items Trading Co. Limited & 3 Others [2021] eKLR.

 

Converting Freehold Land to Leasehold in Kenya: The Law, the Regulatory Gap, and Practical Guidance for Developers and Investors

Land tenure is the foundation of property ownership and conveyancing in Kenya. Whether acquiring land for residential, commercial, or investment purposes, understanding the nature of the title is essential to protecting one's proprietary rights.

The Constitution of Kenya recognises two principal systems of land tenure—freehold and leasehold—and the Land Act contemplates that land may be converted from one tenure to another. Yet despite this legislative recognition, Kenya still lacks a comprehensive legal framework prescribing how a voluntary conversion from freehold to leasehold should be undertaken.

The absence of clear regulations has created uncertainty for developers, foreign investors, lenders, and conveyancing practitioners, particularly where freehold land is intended to be developed for sale to non-citizens or converted into sectional developments.

This article examines the constitutional and statutory framework governing tenure conversion in Kenya, the regulatory gaps that continue to exist, and the practical considerations for property owners and investors.

Does Kenyan Law Permit the Conversion of Freehold Land into Leasehold?

Yes.

Section 9 of the Land Act, 2012 recognises that land may be held under different tenure systems and contemplates conversion between those tenure systems in appropriate circumstances.

In addition, the Land Registration (General) Regulations, 2017 establish an administrative framework requiring the National Land Commission (NLC) to facilitate the conversion of freehold land and leaseholds exceeding ninety-nine years held by non-citizens into ninety-nine-year leases.

However, while the law recognises conversion in principle, it does not prescribe a comprehensive procedure for a Kenyan citizen or locally owned company wishing to voluntarily surrender a freehold title and obtain a leasehold title.

Accordingly, two distinct forms of tenure conversion have emerged in practice:

• Mandatory constitutional conversion affecting non-citizens under Article 65 of the Constitution; and
• Voluntary developmental conversion, commonly undertaken by Kenyan developers and landowners for commercial or planning purposes.

Mandatory Conversion for Non-Citizens

Article 65 of the Constitution provides that non-citizens may hold land in Kenya only on leasehold tenure for a term not exceeding ninety-nine years.

The constitutional effect is clear: a foreign individual or foreign-owned entity cannot lawfully enjoy a freehold interest in land.

To operationalise this constitutional requirement, Regulations 14 and 15 of the Land Registration (General) Regulations, 2017 require the National Land Commission to undertake the conversion of existing freehold interests held by non-citizens into ninety-nine-year leases.

Although the Regulations contemplated implementation within five years of their commencement, the exercise has not been comprehensively concluded. Consequently, many historical freehold titles remain unregularised despite the constitutional restriction.

This administrative delay should not be mistaken for a relaxation of Article 65. The constitutional limitation remains fully operative.

Has the National Land Commission Established a Comprehensive Conversion Framework?

Not yet.

Although the National Land Commission has constitutional and statutory responsibilities relating to land management and policy, it has not issued a detailed, binding framework governing voluntary applications by Kenyan citizens seeking to convert freehold land into leasehold tenure.

In practical terms, there is currently no uniform national procedure addressing matters such as:

• prescribed application forms;
• documentary requirements;
• timelines;
• assessment criteria;
• applicable fees; or
• the legal basis upon which a Land Registrar should approve a voluntary conversion.

As a result, applications are often handled differently across registries, creating uncertainty for developers and investors.

Voluntary Conversion by Kenyan Citizens and Local Companies

Voluntary conversion generally arises where the registered proprietor wishes to restructure ownership for commercial or development purposes.

Common examples include:

• developing apartments intended for sale to foreign purchasers;
• establishing sectional title developments;
• restructuring family-owned land into long-term leasehold interests;
• implementing mixed-use developments; or
• facilitating institutional financing.

In practice, many developers pursue tenure restructuring alongside approvals obtained under the Physical and Land Use Planning Act, 2019.

However, it is important to appreciate that a change of user does not, by itself, create a leasehold title. Rather, in some registries, approval of a change of user may be accompanied by administrative processes that ultimately result in the surrender of a freehold title and the issuance of a leasehold title.

This practice is not expressly prescribed by statute and should not be regarded as an automatic legal consequence.

Practical Process for Voluntary Conversion

Although procedures vary between registries, the process commonly includes:

1.       obtaining planning approval where a change of user is required;

2.      completing surveys or subdivision approvals where applicable;

3.      surrendering the existing freehold title;

4.      preparation of a new lease instrument;

5.      assessment of ground rent and stamp duty where applicable;

6.      payment of statutory fees; and

7.      registration of the new Certificate of Lease.

Because there is presently no uniform regulatory framework, additional requirements may differ depending on the relevant County Government and Land Registry.

Essential Documents

The documentation commonly required includes:

• original Certificate of Title or Grant;
• official land search;
• identification documents or company documents;
• survey plans or mutation forms where applicable;
• planning approvals;
• Land Control Board consent where required;
• valuation reports;
• prescribed land registration forms; and
• compliance with the Ardhisasa registration platform where applicable.

Should Foreign Buyers Purchase Freehold Land on the Promise of Later Conversion?

Generally, no.

A foreign purchaser should avoid acquiring land on the assumption that a freehold title will simply be converted into a leasehold title after completion.

Such arrangements expose the purchaser to several legal risks.

Registration Risk

The Land Registrar may decline to register an instrument that would result in a non-citizen holding a freehold interest contrary to Article 65.

Financing Risk

Banks and other financiers may regard the title as defective or legally uncertain, affecting financing and future refinancing.

Resale Risk

Subsequent purchasers and their advocates may identify constitutional defects during due diligence, reducing marketability.

Regulatory Risk

Where regularisation is later undertaken by the National Land Commission, the conversion process may not occur on terms anticipated by the parties.

Accordingly, foreign investors should insist that tenure issues are fully resolved before completion or contemporaneously with registration.

Can Leasehold Land Be Converted into Freehold?

In principle, Section 9 of the Land Act recognises that land may be converted between tenure systems.

In practice, however, conversion from leasehold to freehold is extremely limited.

Most leasehold land in Kenya originates from public land and remains subject to the Government's reversionary interest.

A leaseholder has no automatic right to demand conversion into freehold ownership.

Any conversion ordinarily requires Government approval and may involve:

• surrender of the existing lease;
• compliance with applicable planning and land administration requirements;
• fresh allocation of the land; and
• issuance of a new freehold title where legally permissible.

For urban land, such conversions are exceptionally rare.

Practical Recommendations

Given the absence of a comprehensive conversion framework, property owners and investors should adopt a cautious approach.

Best practice includes:

• conducting comprehensive legal due diligence before committing to any transaction;
• confirming the tenure reflected in the land register at an early stage;
• avoiding contractual promises that conversion will occur after completion without a clearly defined legal mechanism;
• obtaining all planning approvals before restructuring ownership;
• engaging experienced conveyancing counsel throughout the transaction; and
• maintaining complete records of approvals, correspondence, and registration documents.

Conclusion

Kenyan law clearly recognises both freehold and leasehold tenure and contemplates the possibility of converting land from one tenure system to another. However, the absence of a comprehensive and uniformly applied regulatory framework continues to create significant uncertainty, particularly regarding voluntary conversion from freehold to leasehold.

Until clearer administrative guidelines are issued by the National Land Commission and the Ministry responsible for land administration, developers, investors, and property owners should proceed cautiously. Every proposed conversion should be assessed on its own facts, taking into account constitutional requirements, applicable planning laws, registry practice, and the commercial objectives of the transaction.

Obtaining specialist legal advice at the outset remains the most effective way of managing risk and ensuring compliance with Kenya's evolving land law framework.

The Legal Process of Registering a Trademark in Kenya

Introduction

In today's competitive marketplace, a trademark is one of the most valuable business assets. It distinguishes your goods or services from those of your competitors, builds consumer confidence, and protects the reputation of your brand.

The Constitution of Kenya, 2010 recognises the importance of intellectual property. Article 40(5) obligates the State to support, promote, and protect the intellectual property rights of the people of Kenya. This constitutional protection is implemented through various statutes, including the Trade Marks Act (Cap. 506), which governs the registration and protection of trademarks in Kenya.

The authority responsible for the registration of trademarks is the Kenya Industrial Property Institute (KIPI).

Whether you are launching a new business, introducing a product to the market, or expanding an existing brand, registering your trademark is an important step in safeguarding your intellectual property.

What Is a Trademark?

A trademark is any sign capable of distinguishing the goods or services of one business from those of another.

A trademark may consist of:

• A word or business name;
• A logo;
• A slogan;
• A symbol;
• A letter or numeral;
• A device or label;
• A combination of colours; or
• Any combination of these elements capable of distinguishing a business's goods or services.

Once registered, a trademark gives its owner the exclusive legal right to use the mark in relation to the goods or services for which it is registered and to prevent unauthorised use by third parties.

Why Register a Trademark?

Registering a trademark provides several important legal and commercial benefits, including:

• Exclusive rights to use the trademark in Kenya.
• Legal protection against infringement and counterfeiting.
• Enhanced brand recognition and consumer trust.
• A valuable business asset that can be licensed, assigned, or franchised.
• Increased commercial value for investors and business partners.
• A stronger legal basis for enforcing intellectual property rights before the courts.

Registration also gives public notice that the mark belongs to the registered proprietor.

The Trademark Registration Process in Kenya

The process of registering a trademark in Kenya involves several stages.

Step 1: Conduct a Preliminary Trademark Search

Before filing an application, it is advisable to conduct a preliminary search at KIPI to determine whether the proposed trademark is available for registration.

The search helps to:

• identify existing identical or confusingly similar trademarks;
• assess whether the proposed mark is registrable; and
• minimise the risk of infringement disputes or rejection of the application.

The preliminary search is made using Form TM27 upon payment of the prescribed fee.

Conducting a search before filing an application can save both time and costs.

Step 2: File the Trademark Application

If the preliminary search indicates that the trademark is available, the applicant may proceed with filing an application for registration.

The application is generally submitted using:

• Form TM2 (Application for Registration); and
• Form TM32 (Appointment of Agent), where an agent acts on behalf of the applicant.

Where the applicant is not resident in Kenya or is required to appoint a local agent, the relevant documentation, including Form TM1 where applicable, should accompany the application.

The prescribed official filing fees must also be paid.

Step 3: Examination by the Registrar

Once the application is received, the Registrar of Trade Marks examines the application to determine whether the proposed trademark satisfies the requirements of the Trade Marks Act.

The examination considers, among other things:

• whether the trademark is distinctive;
• whether it conflicts with an existing registered trademark;
• whether it is deceptive, misleading, or contrary to public policy; and
• whether it complies with the statutory requirements for registration.

If the Registrar is satisfied that the application meets the legal requirements, it proceeds to the publication stage. Where objections arise, the applicant may be required to amend the application or respond to the Registrar's observations before the application can proceed.

Step 4: Publication in the KIPI Journal

Once accepted by the Registrar, the trademark is advertised in the KIPI Industrial Property Journal after payment of the prescribed publication fee.

The publication serves to notify the public of the proposed registration and allows any interested party to oppose the application.

The opposition period is sixty (60) days from the date of publication.

Where a third party believes that registration of the trademark would prejudice their legal rights, they may file a Notice of Opposition (Form TM6) within the prescribed period. Opposition proceedings are then conducted before the Registrar, who determines whether the trademark should proceed to registration.

If no opposition is filed within the prescribed period, or if any opposition is successfully resolved in favour of the applicant, the application proceeds to registration.

Step 5: Registration and Issuance of the Certificate

Where the application satisfies all legal requirements and no successful opposition is lodged, the Registrar registers the trademark and issues a Certificate of Registration.

Upon registration, the proprietor acquires the exclusive statutory right to use the trademark in relation to the registered goods or services, subject to the provisions of the Trade Marks Act.

Duration of Trademark Protection

A registered trademark in Kenya is protected for an initial period of ten (10) years from the date of registration.

The registration may be renewed for successive periods of ten (10) years by filing Form TM10 and paying the prescribed renewal fees before the registration expires.

Failure to renew a trademark within the prescribed time may result in its removal from the register, although restoration may be available in certain circumstances under the Trade Marks Act.

Why Seek Legal Assistance?

Although trademark registration may appear straightforward, applications are frequently refused because of procedural errors, inadequate classification of goods or services, or conflicts with existing trademarks.

A legal practitioner or registered intellectual property agent can assist by:

• conducting comprehensive trademark searches;
• advising on the registrability of a proposed mark;
• preparing and filing trademark applications;
• responding to examination reports;
• representing clients in opposition proceedings; and
• advising on trademark enforcement, licensing, assignment, and renewal.

Obtaining professional advice at an early stage can significantly improve the prospects of securing and maintaining valuable trademark rights.

Conclusion

Registering a trademark is one of the most effective ways of protecting a business's identity and commercial reputation. It grants the proprietor exclusive legal rights, strengthens brand recognition, and provides an effective legal remedy against unauthorised use or infringement.

Businesses, entrepreneurs, start-ups, and innovators should consider trademark registration as an essential component of their intellectual property strategy. By securing trademark protection early, business owners safeguard one of their most valuable commercial assets and position themselves for sustainable growth.

Need Assistance with Trademark Registration?

Our Intellectual Property team provides comprehensive trademark services, including:

• Trademark availability searches;
• Registration of trademarks in Kenya;
• Trademark renewals;
• Opposition and infringement proceedings;
• Licensing and assignment of trademarks; and
• Intellectual property advisory services.

If you wish to protect your brand, contact our office for professional legal assistance with your trademark registration and intellectual property needs.