The High Court has ruled that a woman whose marriage has been declared legally invalid because her husband was still in a monogamous marriage can still inherit from his estate under Kenya’s succession laws.
In a judgment delivered on July 2, the High Court in Nairobi held that although the second marriage was null and void under the Marriage Act, the woman remained a wife for purposes of inheritance under Section 3(5) of the Law of Succession Act.
High Court Examines Validity of Second Marriage
The case arose after the death of a man whose children petitioned the court for letters of administration over his estate.
A woman who had lived with the deceased as his wife objected to the petition, arguing that she should be recognized as a beneficiary and appointed as one of the administrators of the estate.
Court records showed that the deceased had entered into a monogamous marriage in 1987, which was only dissolved through divorce in 2020.
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However, before that divorce was finalized, he had undergone a customary marriage in Tanzania in 2015 after dowry negotiations and later formalized the union through a civil marriage. The couple had two children together and lived as husband and wife for several years.
The first wife opposed the application, arguing that the second marriage could not be recognized because her own marriage to the deceased was still legally in force when it took place.
The judge agreed that the second marriage was legally invalid and noted that entering into another marriage while a monogamous marriage was still subsisting amounted to what could “easily pass as bigamy.”
Court Explains Why the Second Wife Qualifies to Inherit
Despite that finding, the court ruled that the Law of Succession Act provides protection for spouses in such circumstances with respect to inheritance.
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The judge found that the woman genuinely believed the deceased had divorced his first wife, that they lived together as husband and wife, had children, and that the deceased consistently introduced her publicly as his wife.
According to the High Court, Section 3(5) of the Law of Succession Act was intended to protect spouses in marriages that may be legally invalid under marriage law but should still be recognized for succession purposes. The judge held that the woman and her children therefore qualified as beneficiaries of the estate.
The High Court noted that any dispute over how the estate should ultimately be shared would be determined during the distribution stage.
It allowed the objection, declared the woman a wife of the deceased for purposes of succession, appointed her as a joint administrator of the estate, and directed the administrators to seek confirmation of the grant within 45 days.
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