Win for Men as Court Declares Part of Succession Law Unconstitutional

In a landmark decision on gender equality, the High Court has declared Section 29(c) of the Law of Succession Act unconstitutional, citing unfair discrimination against widowers.

Justice Lawrence Mugambi found that the provision, which compels a husband to prove dependency on his deceased wife in order to inherit her estate, violates the Constitution’s guarantees of equality and non-discrimination.

The petition was filed by a man identified as the husband of the late Caroline Wawira Njagi. The couple, married under Kiembu Customary Law since 2002, had two children and remained in contact even after separating in 2022. Following Wawira’s death in July 2023, the petitioner was excluded from funeral arrangements by her partner but later won burial rights in Mavoko Law Courts.

At the core of his petition, the man argued that Section 29(c) imposed an unequal burden on male spouses—one not required of widows—thus violating Articles 27 and 45(3) of the Constitution. His legal team, led by advocate Shadrach Wamboi, asserted the law failed to treat spouses equally in marriage and after death.

The Attorney General, named as a respondent, opposed the case on procedural grounds, arguing that matters of legislation fall under Parliament and that the petitioner had not adequately demonstrated a constitutional breach.

Justice Mugambi dismissed these objections, clarifying that the issue was one of constitutional interpretation, not estate distribution.

“Such differentiation based on gender undermines the constitutional principle of equality, particularly in a marital setting,” the court held. He further referenced prior decisions like Ripples International v. Attorney General and Rose Wangui Mambo v. Limuru Country Club, stating that pre-2010 laws must now align with the values of the 2010 Constitution.

While the court declined to issue a mandatory order compelling the Attorney General to initiate law reforms—citing the separation of powers—it declared Section 29(c) null and void.

No costs were awarded in the case, with Justice Mugambi emphasizing the petition’s significant public interest.

This ruling not only marks a legal win for men but also sets a vital precedent in reforming Kenya’s succession laws to meet modern constitutional standards on gender equality.

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Win for Men as Court Declares Part of Succession Law Unconstitutional