For years, widowers in Kenya faced a legal burden their female counterparts did not — having to prove they were financially dependent on their late wives before claiming inheritance.
Now, in a landmark ruling, the High Court has declared that requirement unconstitutional, calling it gender-based discrimination.
Justice Lawrence Mugambi found that the law, specifically Section 29(c) of the Law of Succession Act, violated the Constitution’s guarantees of equality and non-discrimination. He ruled that forcing only men to prove financial dependence in order to qualify as beneficiaries was inherently unfair.
“Such differentiation based on gender undermines the constitutional principle of equality, particularly in a marital setting,” the court ruled.
Court Rules Widowers Can Claim Their Wives’ Estates Without Proving Dependency
The decision stems from a case filed by the husband of the late Caroline Wawira Njagi. The couple had been married under Kiembu Customary Law since 2002 and had two children. Though they separated in 2022, they remained on good terms and co-parented their children.
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After Wawira’s death in July 2023, the man was excluded from her burial arrangements by her partner. He moved to court and was granted burial rights through the Mavoko Law Courts. But his legal battle didn’t end there.
Through lawyer Shadrach Wamboi, the petitioner challenged Section 29(c) of the Law of Succession Act, arguing that it discriminated against widowers by denying them equal treatment under the law — a right guaranteed by Articles 27 and 45(3) of the Constitution.
The Attorney General, who was listed as the respondent, opposed the petition. He argued that he had no mandate to change the law, that the matter fell under the Family Division due to its succession nature, and that the petitioner had not demonstrated constitutional violations with sufficient precision.
Part of Succession Law Declared Unconstitutional
However, the court dismissed those arguments. Justice Mugambi ruled that the matter was not about estate distribution, but a clear question of constitutional interpretation.
“This is not a dispute over the distribution of the deceased’s estate, but a clear question on the constitutionality of the law,” the judge ruled.
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To support his decision, Mugambi drew on past judgments such as Ripples International v. Attorney General and Rose Wangui Mambo v. Limuru Country Club, which emphasised the need to align older laws with the values enshrined in the 2010 Constitution.
Still, the judge declined to issue an order directing the Attorney General to begin amending the law, citing the principle of separation of powers.
“The authority to amend or repeal legislation rests solely with Parliament. Courts cannot compel legislative action in a particular direction.”
Instead, the court issued a declaratory order, officially declaring Section 29(c) unconstitutional, null, and void.
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