Last Will and Testament (Islamic / Wasiyya) (Kenya)

A Last Will and Testament in Kenya records how an individual's assets are to pass to named beneficiaries once it takes effect on death.

The Wasiyya operates alongside the compulsory Sharia heirs' shares (faraid) prescribed by the Quran and authenticated Sunnah. Under Islamic inheritance law as applied in Kenya, specified relatives — asabat (agnatic heirs) and dhawul-furud (Quranic sharers) — receive fixed proportional shares of the estate automatically. The testator has no power to alter these compulsory shares by Will. The Wasiyya therefore addresses only the discretionary one-third (al-thuluth) of the net estate — assets remaining after deduction of funeral expenses, debts, and the compulsory faraid shares. A bequest exceeding one-third of the net estate is void to the extent of the excess unless the surviving heirs consent to a larger bequest after the testator's death.

Section 2(3) of the Law of Succession Act Cap. 160 expressly provides that the Act does not apply to the testamentary or intestate succession to the estate of any person who at the time of death is a Muslim; in place of the Act, the devolution of a Muslim's estate is governed by Muslim law (Sharia). For this reason a Wasiyya is not made under the formal-validity rules of the Law of Succession Act; its validity is governed by Islamic law as applied by the Kadhi Courts. Under Sharia as applied in Kenyan Kadhi Court practice, the testator must have attained the age of majority and be of sound mind (aql), must act free of duress or undue influence (ikrah), and the Wasiyya should be witnessed by two competent adult Muslim witnesses who are not beneficiaries. A bequest to an heir is void (wasiyyat li-l-warith) unless the remaining heirs consent after the testator's death — this rule is maintained in Kenyan Kadhi Court practice.

The Kadhi Courts Act Cap. 11, together with Article 170 of the Constitution of Kenya 2010, vests in the Chief Kadhi and Kadhis jurisdiction over questions of Muslim personal law within Kenya, including inheritance, where all the parties profess the Muslim faith. When a deceased Muslim's estate is administered, the Kadhi Court applies faraid calculations to determine the heirs' shares and validates any Wasiyya for the one-third discretionary portion. The High Court of Kenya retains supervisory jurisdiction over the Kadhi Courts under Article 170(5) of the Constitution of Kenya 2010, and grants of representation that enable executors and administrators to deal with estate assets are issued by the High Court or the Resident Magistrates Court.

A Kenya Islamic Will is distinct from a general Kenyan Will made under Section 5 of the Law of Succession Act Cap. 160, which grants non-Muslim testators full freedom of testation over the entire estate subject only to the dependants' protection provisions of Part VII of the Act. Because Section 2(3) excludes Muslims from the Act, a Muslim estate is instead distributed under faraid; a Muslim testator who makes a Will purporting to bequeath the entire estate without regard to faraid rules risks having those provisions voided by the Kadhi Court upon application by aggrieved heirs.

The Kenya Muslim community spans multiple ethnic and cultural traditions — Swahili, Somali, Arab, and South Asian — and the applicable school of Islamic jurisprudence (madhab) may influence certain faraid calculations. The four main schools recognised in Kenyan Kadhi Court practice are the Hanafi school (prevalent among South Asian Muslims), the Maliki school (prevalent among West African Muslims resident in Kenya), the Shafi'i school (prevalent among Swahili and Arab communities on the Coast), and the Hanbali school. Each school has slightly different rules on the shares of collateral heirs when primary heirs are absent, making it important for the testator to record their madhab in the Wasiyya.

Where a Muslim estate in Kenya includes pension savings held with a Retirement Benefits Authority (RBA)-regulated fund under the Retirement Benefits Act Cap. 197, the pension trustees pay death benefits to nominated beneficiaries outside the estate. These benefits do not form part of the faraid estate. Similarly, proceeds from group life assurance schemes underwritten by a licensed insurer under the Insurance Act Cap. 487 and payable to named beneficiaries are excluded. Careful coordination between the Wasiyya, pension nominations, and insurance nominations is essential to confirm the testator's overall estate plan is coherent and aligned with faraid principles. The forms-legal.com Kenya Islamic Will template records the testator's madhab, identifies all known heirs with their kinship category, specifies the one-third discretionary bequests, and appoints an executor acceptable to both the family and the Kadhi Court.

A Kenya Islamic Will (Wasiyya) is needed whenever a Muslim resident or citizen of Kenya wishes to direct the distribution of the discretionary one-third of their estate while confirming compliance with faraid rules. Under Section 2(3) of the Law of Succession Act Cap. 160 a Muslim's estate is governed by Islamic law rather than by the general provisions of that Act, and questions of Muslim personal law are adjudicated by the Kadhi Courts under the Kadhi Courts Act Cap. 11.

A Wasiyya is required when a Muslim testator wishes to make charitable bequests (sadaqah jariyah) — for example, to a registered madrasa, an Islamic charity registered under the Non-Governmental Organisations Co-ordination Act Cap. 134, or a waqf (Islamic endowment) established under Kenyan law — from the discretionary one-third of the estate. Without a Wasiyya, such charitable intentions have no legal basis and cannot be enforced after death.

An Islamic Will is needed when the testator wishes to provide for persons who are not Sharia heirs — for example, a non-Muslim spouse, a stepchild, an adopted child (Islamic law does not recognise full adoption), or a close friend — from the one-third discretionary portion. The Kadhi Court will give effect to such a bequest provided it does not exceed one-third of the net estate and is not made in favour of a Sharia heir.

A Wasiyya is required when a Muslim testator holds significant assets in Kenya — land registered under the Land Registration Act No. 3 of 2012, shares in a company registered under the Companies Act No. 17 of 2015, bank accounts at a commercial bank, or mobile money savings — and wishes to confirm that estate administration proceeds efficiently through the High Court probate process aligned with faraid principles, avoiding family disputes before the Kadhi Court.

An Islamic Will is needed when a Muslim testator wishes to appoint a trusted executor (wasi) to manage the estate, pay debts, and distribute assets in accordance with faraid. Without an appointment, the court appoints an administrator, who may not have the necessary knowledge of Islamic inheritance law or the faraid calculation rules applied by the Chief Kadhi under the Kadhi Courts Act Cap. 11.

A Wasiyya is needed by Muslim business owners in Kenya to address the disposition of business interests — partnership shares, company shares registered under the Companies Act No. 17 of 2015, or sole proprietorship assets registered under the Business Names Act Cap. 499 — in a manner consistent with faraid, so that the business is not disrupted by competing inheritance claims from multiple heirs during the administration period.

A Wasiyya is required by any Muslim in Kenya who has taken out a mortgage under the Land Act No. 6 of 2012 or who holds leasehold land under a Government Lease. Without clear testamentary instructions, competing faraid heirs may delay the estate administration, causing mortgage arrears to accumulate and potentially triggering enforcement action by the bank under Section 90 of the Land Act No. 6 of 2012 before the estate is settled.

An Islamic Will is needed whenever a Muslim Kenyan wishes to record explicit funeral instructions — including the identity of the person responsible for ghusl, the preferred Muslim cemetery registered with the County Government, and the contact details of the local Islamic Society of Kenya branch — to confirm timely Islamic burial consistent with the Sunnah requirement of interment within 24 hours of death.

A Kenya Islamic Will (Wasiyya) must contain the following essential elements to be valid and enforceable before the Kadhi Court, whose jurisdiction over Muslim personal law is established by the Kadhi Courts Act Cap. 11 and Article 170 of the Constitution of Kenya 2010, and which applies Islamic law because Section 2(3) of the Law of Succession Act Cap. 160 excludes Muslim estates from that Act.

Testator Particulars: Full legal name of the testator as appearing on the National Identity Card (NIC) or passport, date of birth, residential address, KRA PIN where the estate includes taxable assets, and an express declaration that the testator professes the Muslim faith and wishes the estate to be administered according to the Sharia school (madhab) stated — Hanafi, Maliki, Shafi'i, or Hanbali — as applied by the Kadhi Courts in Kenya.

Declaration of Islam and Testamentary Capacity: An express statement that the testator is of sound mind (aql), has attained the age of majority, is not acting under duress or undue influence (ikrah), and executes the Wasiyya as a free and voluntary act. Under Islamic law as applied by the Kadhi Courts, the testator must have capacity at the date of execution.

Identification of Sharia Heirs: A schedule listing all known Sharia heirs — spouse(s), children (sons and daughters), parents, and other relevant relatives — with their full names, relationship to the testator, and National Identity Card numbers where available. This schedule assists the Kadhi Court in performing the faraid calculation and confirms transparency.

Discretionary One-Third Bequests (Wasiyya): Specific bequests from the discretionary one-third of the net estate, identifying each beneficiary by full name, relationship, and the nature of the bequest (a fixed sum in Kenya Shillings, a fraction of the residuary one-third, or a specific asset). The Wasiyya must state that all bequests are subject to not exceeding one-third of the net estate after funeral expenses and debts.

Appointment of Executor (Wasi): The full name, National Identity Card number, and contact details of the appointed executor (wasi), together with a named substitute executor. The executor should ideally be a Muslim adult of sound mind and proven integrity. The executor's duties — collecting assets, paying debts, obtaining a grant of representation from the High Court, and distributing the estate in accordance with faraid as determined by the Kadhi Court — should be acknowledged.

Waqf and Charitable Bequests: Where the testator wishes to establish or contribute to a waqf (Islamic endowment) or donate to a registered Islamic charity in Kenya, the specific asset or fraction of the one-third discretionary portion dedicated to the waqf should be identified, along with the name of the mutawalli (waqf trustee) and the charitable purpose.

Funeral Instructions: Instructions regarding funeral rites consistent with Islamic practice — ghusl (ritual washing), kafan (shrouding), Salat al-Janazah (funeral prayer), and burial at a Muslim cemetery registered with the relevant County Government — noting that cremation is not permitted under Islamic law.

Execution Formalities: Under Islamic law as applied by the Kadhi Courts, the Wasiyya should be signed by the testator in the presence of at least two competent adult Muslim witnesses who are not beneficiaries under the Will. Each witness should sign the attestation clause and state their full name, National Identity Card number, and address. The forms-legal.com Kenya Islamic Will template incorporates all mandatory elements and includes a faraid summary schedule, a standard attestation clause, and a Kadhi Court cover sheet for submission.

Revocation Clause: A clear statement revoking all prior Wills and codicils made by the testator, confirming only the current Wasiyya governs estate distribution. Under Sharia, a Wasiyya is revocable at any time before death.