The High Court in Nairobi has ruled that a woman may be recognised as a wife for inheritance purposes even where her marriage to the deceased was legally invalid because he was still married to another woman under a monogamous union.
In a judgment delivered by Justice Hilary Chemitei, the court held that Section 3(5) of the Law of Succession Act was designed to protect spouses and children in such relationships, allowing them to benefit from a deceased person’s estate despite defects in the marriage’s legal validity.
“Since the Act declared a customary marriage to be valid despite the existence of a monogamous marriage being alive, then, by the same breath, any second monogamous marriage like the case at hand will be deemed valid for purposes of the Succession Act and in particular sections 29 and 40 thereof,” Justice Chemitei stated.
The dispute arose after a woman sought recognition as a beneficiary of a deceased man’s estate. Her claim was challenged because the man had already contracted a monogamous marriage in 1987, which remained in force until it was dissolved through divorce proceedings in 2020.
Evidence before the court showed that the deceased had entered into a customary marriage ceremony with the woman in 2015 and later formalised the relationship through a civil marriage in Tanzania while the first marriage was still subsisting.
“In this case, the deceased indeed underwent a customary marriage ceremony and later validated it through a civil union. My position is that the same, to the extent that the first marriage was still subsisting, was null and void legally speaking,” the judge observed.
However, the court noted that the deceased consistently treated the woman as his wife, publicly introduced her as such, and had two children with her.
Justice Chemitei said Parliament enacted Section 3(5) to shield spouses and children in unions that may not meet all legal requirements but were nevertheless treated as family relationships by the deceased.
“The objector and her children are recognised as wife and children of the deceased under succession law,” the court ruled.
The judge allowed the woman’s objection proceedings and appointed her a joint administrator of the estate alongside the existing administrators. The parties were directed to seek confirmation of the grant within 45 days.
The court clarified that the question of how the estate will ultimately be shared among the beneficiaries will be determined in separate proceedings.
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