In a major step toward gender equality in Kenya’s legal system, the High Court has struck down Section 29(c) of the Law of Succession Act, terming it discriminatory against widowers. Justice Lawrence Mugambi ruled that the section, which required husbands to prove financial dependency on their deceased wives to qualify as heirs, was unconstitutional.
The case was brought forward by a man identified as the husband of the late Caroline Wawira Njagi. The two were married under Kiembu Customary Law in 2002 and had two children. Although they separated in 2022, they remained on good terms and co-parented their children. After Wawira’s death in July 2023, the man was excluded from her burial arrangements by her partner, sparking a legal battle that later granted him burial rights through the Mavoko Law Courts.
However, the heart of the case was not about burial rights, but about Section 29(c) of the Succession Act. The petitioner, through lawyer Shadrach Wamboi, argued that this provision placed an unfair burden on men, one not imposed on women in similar circumstances. He cited Articles 27 and 45(3) of the Constitution, which guarantee equality before the law and equal rights within marriage.
The Attorney General, named as the respondent, opposed the petition. He argued that he had no authority to amend laws and that the matter should have been filed under the Family Division of the High Court. The AG also claimed that the petitioner hadn’t demonstrated the alleged constitutional violations with sufficient clarity.
Justice Mugambi dismissed these objections, stating that the case clearly involved constitutional interpretation and did not breach the doctrine of constitutional avoidance. He further emphasized that the issue was not about estate distribution but about the validity of a specific law under the Constitution.
In his ruling, the judge stated that making only men prove dependency to benefit from their spouses’ estates is discriminatory. “Such differentiation based on gender undermines the constitutional principle of equality, particularly in a marital setting,” he wrote.
The judgment also highlighted that laws created before the 2010 Constitution must now be viewed through the lens of current constitutional values. The court cited earlier rulings, including Ripples International v. Attorney General and Rose Wangui Mambo v. Limuru Country Club, to reinforce this point.
While the court declined to compel the Attorney General to initiate changes in Parliament, citing the separation of powers, it did issue a declaratory order, officially nullifying Section 29(c) of the Succession Act. The court also chose not to award any legal costs, noting the case was in the public interest.
By Yockshard Enyendi
