Men have gotten a big win after the high court declared section 29(c) of the Law of Succession Act unconstitutional, citing gender-based discrimination against widowers.
In his judgement, Justice Lawrence Mugambi 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 on equality and non-discrimination.
In the case, a widow had moved to court challenging the law saying it was discriminatory.
This is after his late wife Caroline Wawira Njagi died in 2023 and he was excluded from the burial
According to court papers, following Wawira’s death in July 2023, he faced exclusion from burial arrangements by her partner, prompting a legal battle that ultimately granted him burial rights through the Mavoko Law Courts.
Through his lawyer Shadrack Wambui, he argued that the said law placed a discriminatory burden on widowers not faced by widows under the same law.
He said the law violated Articles 27 and 45(3) of the Constitution, which guarantee equality before the law and equal rights in marriage.
Justice Mugambi held that the petition was firmly rooted in constitutional interpretation and did not offend the doctrine of constitutional avoidance.
“This is not a dispute over distribution of the deceased’s estate, but a clear question on the constitutionality of the law,” the judge said
The court ruled 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.
He said the laws enacted before the 2010 Constitution must be reinterpreted to align with modern constitutional values.
Justice Mugambi issued a declaratory order 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 Attorney General had strongly 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.
She further maintained that the petitioner failed to prove constitutional violations with precision, as required by legal precedent.
