Nairobi, Kenya – In a landmark ruling, the High Court has declared Section 29(c) of the Law of Succession Act unconstitutional, citing blatant gender-based discrimination against widowers. The decision, handed down by Justice Lawrence Mugambi, marks a significant step towards aligning Kenya’s inheritance laws with the constitutional guarantees of equality and non-discrimination.
The impugned provision previously mandated that a husband prove financial dependency on his deceased wife to qualify as a beneficiary of her estate. This requirement, however, was not imposed on widows, creating an unequal burden that the court found to be in violation of the Constitution.
The case was brought forward by a man seeking to inherit from the estate of his late wife, Caroline Wawira Njagi. The couple, married under Kiembu Customary Law since 2002, had two children. Despite their separation in 2022, they maintained an amicable relationship and jointly raised their children. Following Wawira’s death in July 2023, the petitioner was excluded from burial arrangements by the deceased’s partner, leading to a legal battle that initially secured his burial rights through the Mavoko Law Courts.
The core of the constitutional challenge, spearheaded by the petitioner’s legal team led by Shadrach Wamboi, centered on the discriminatory nature of Section 29(c). They argued that the law contravened Articles 27 (equality before the law) and 45(3) (equal rights in marriage) of the Constitution.
The Attorney General, named as the respondent, opposed the petition, asserting a lack of mandate to enact or amend laws and suggesting the matter belonged to Parliament or the Family Division of the High Court. The AG further contended that the petitioner had failed to demonstrate constitutional violations with the required precision.
However, Justice Mugambi dismissed these arguments, affirming that the petition was squarely rooted in constitutional interpretation. “This is not a dispute over distribution of the deceased’s estate, but a clear question on the constitutionality of the law,” the judge declared.
In a strongly worded judgment, the court emphasized that requiring only men to prove dependency to inherit from their spouses was inherently discriminatory. The ruling highlighted that “such differentiation based on gender undermines the constitutional principle of equality, particularly in a marital setting.” The court referenced previous decisions, including Ripples International v. Attorney General and Rose Wangui Mambo v. Limuru Country Club, to underscore the necessity of reinterpreting pre-2010 laws to conform with modern constitutional values.
While the court declared Section 29(c) unconstitutional, null, and void, it declined to issue a mandatory injunction compelling the Attorney General to initiate legislative amendments. Citing the principle of separation of powers, the court clarified that “the authority to amend or repeal legislation rests solely with Parliament. Courts cannot compel legislative action in a particular direction.”
No costs were awarded in the case, with the judge noting that the petition served the broader public interest. This pivotal ruling sets a critical precedent, pushing for a more equitable application of succession laws in Kenya and potentially paving the way for broader reforms in inheritance law.
