High Court declares Succession Law section discriminating against widowers unconstitutional
The judge ruled that the provision, which requires a husband to prove he was dependent on his deceased wife in order to qualify as a beneficiary of her estate, violates the Constitution's guarantees of equality and non-discrimination.
The High Court has ruled that section 29(c) of the Law of Succession Act is unconstitutional as it creates gender discrimination against widowers.
Justice Lawrence Mugambi on Friday ruled that the provision, which requires a husband to prove he was dependent on his deceased wife in order to qualify as a beneficiary of her estate, violates the Constitution's guarantees of equality and non-discrimination.
More To Read
"A declaratory order is issued declaring section 29(c) unconstitutional, null and void. No costs were awarded, with the judge noting that the petition served the broader public interest," the judge ruled.
The case was filed by a man identified as the husband of the late Caroline Wawira Njagi. The two had been married under Kiembu Customary Law since 2002 and had two children. Despite their separation in 2022, the couple maintained cordial relations and jointly raised their children.
Following Wawira's death in July 2023, the petitioner faced exclusion from burial arrangements by the deceased's partner, prompting a legal battle that ultimately granted him burial rights through the Mavoko Law Courts.
However, the heart of the constitutional petition lay in the petitioner's challenge to section 29(c) of the Law of Succession Act, which he argued placed a discriminatory burden on widowers not faced by widows under the same law.
His lawyers, led by Shadrach Wamboi, argued that the law violated Articles 27 and 45(3) of the Constitution, which guarantee equality before the law and equal rights in marriage.
The Attorney General, who was the respondent, opposed the petition, arguing that he had no mandate to enact or amend laws and that such matters should be handled by Parliament.
The AG also contended that the matter belonged in the Family Division of the High Court as it touched on succession issues. He further maintained that the petitioner failed to prove constitutional violations with precision, as required by legal precedent.
However, the court dismissed those arguments, holding that the petition was firmly rooted in constitutional interpretation and did not offend the doctrine of constitutional avoidance. "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.
In a strongly worded judgment, the court found that requiring only men to prove dependency in order to inherit from their spouses was inherently discriminatory. "Such differentiation based on gender undermines the constitutional principle of equality, particularly in a marital setting," the court held.
Top Stories Today
