Nairobi, Kenya — In a landmark ruling, the High Court has declared Section 29(c) of the Law of Succession Act unconstitutional, citing discrimination against widowers and a violation of the Constitution’s guarantees of equality and non-discrimination.
Justice Lawrence Mugambi found that the law—requiring husbands to prove financial dependency on their deceased wives to inherit from their estates—amounts to gender-based discrimination, a burden not imposed on widows under the same statute.
The case was brought by a man identified as the husband of the late Caroline Wawira Njagi. The couple had been married under Kiembu Customary Law since 2002 and had two children. Although they separated in 2022, they continued to co-parent amicably. After Wawira’s death in July 2023, the petitioner was excluded from her burial arrangements by her partner, prompting him to seek redress through the Mavoko Law Courts, which ultimately granted him burial rights.
However, the crux of his legal challenge lay in Section 29(c) of the Succession Act. Represented by lawyer Shadrach Wamboi, the petitioner argued that the provision discriminates against men and violates Articles 27 and 45(3) of the Constitution, which guarantee equal treatment before the law and equal rights within marriage.
The Attorney General, named as the respondent, opposed the petition. He argued that legislative matters fall under the purview of Parliament, not the Executive, and that succession disputes should be heard in the Family Division of the High Court. Additionally, the AG contended that the petitioner had not demonstrated a constitutional violation with sufficient specificity.
Justice Mugambi rejected these arguments, ruling that the petition dealt squarely with constitutional interpretation rather than estate distribution. “This is not a dispute over the deceased’s estate, but a fundamental question regarding the constitutionality of the law,” the judge stated.
In a firm and principled decision, the court found the provision discriminatory for requiring only men to prove dependency. “Such differentiation based on gender undermines the constitutional principle of equality, particularly in a marital setting,” the judgment read.
The ruling drew on previous decisions such as Ripples International v. Attorney General and Rose Wangui Mambo v. Limuru Country Club, emphasizing that laws predating the 2010 Constitution must be interpreted in line with current constitutional standards.
While the court issued a declaratory order rendering Section 29(c) null and void, it declined to compel the Attorney General to initiate legislative amendments, citing the doctrine of separation of powers. “The authority to amend or repeal legislation rests solely with Parliament. Courts cannot dictate legislative priorities,” the judge noted.
No costs were awarded, with the court recognizing the petition as one brought in the public interest.
This ruling marks a significant step toward gender parity in Kenya’s succession laws and could serve as a catalyst for broader legal reforms around inheritance rights.
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