High Court Declares Section of Succession Law Unconstitutional for Discriminating Against Widowers
The High Court has struck down Section 29(c) of Kenya’s Law of Succession Act, ruling it unconstitutional for discriminating against widowers based on gender.
In a landmark decision, Justice Lawrence Mugambi found that the provision—requiring a man to prove he was dependent on his deceased wife to qualify as a beneficiary of her estate—violates constitutional guarantees of equality and non-discrimination. The judge held that the clause unfairly burdens widowers in a way not required of widows, thus breaching Articles 27 and 45(3) of the Constitution, which ensure equality before the law and equal rights within marriage.
The case was brought by a man who identified himself as the husband of the late Caroline Wawira Njagi. The two had been married under Kiembu Customary Law since 2002 and had two children. Although they separated in 2022, they remained in good terms and co-parented their children. After Wawira’s death in July 2023, the petitioner was excluded from burial arrangements by her partner, leading him to seek and secure burial rights through the Mavoko Law Courts.
Beyond the burial dispute, the man challenged the constitutionality of Section 29(c), arguing that it imposed a discriminatory legal hurdle on widowers. His legal team, led by lawyer Shadrach Wamboi, contended that the law was outdated and incompatible with the 2010 Constitution.
The Attorney General, named as the respondent, opposed the petition. He argued that the issue fell under the purview of Parliament, not the courts, and that the matter should have been handled in the Family Division of the High Court. The AG also claimed that the petitioner had not met the legal threshold for proving a constitutional violation.
Justice Mugambi rejected these arguments, stating that the case was not about estate distribution but the constitutionality of a legal provision. “This is not a dispute over inheritance, but a constitutional question regarding equality and non-discrimination,” he ruled.
In his judgment, the judge emphasized that requiring only men to prove dependency in succession matters was inherently unequal. “Such gender-based differentiation erodes the principle of equality in marriage,” the court observed.
Citing precedents such as Ripples International v. Attorney General and Rose Wangui Mambo v. Limuru Country Club, the judge noted that laws predating the 2010 Constitution must be interpreted in light of contemporary constitutional values.
However, the court declined to compel the Attorney General to initiate legislative changes, citing the principle of separation of powers. “Courts cannot direct Parliament on how to legislate,” the judge stated.
Instead, the court issued a declaratory order nullifying Section 29(c), marking it as unconstitutional. No legal costs were awarded, with the court noting that the case served the broader public interest.
This ruling is expected to set a significant precedent, potentially catalyzing further reforms in Kenya’s succession laws to ensure full compliance with constitutional standards on gender equality.
