COURT DECLARES PART OF SUCCESSION LAW UNCONSTITUTIONAL

The High Court has declared Section 29(c) of the Law of Succession Act unconstitutional, for requiring widowers to prove that they were dependent on their deceased wives to benefit from their estate.  Justice Lawrence Mugambi ruled that the provision, violates the Constitution’s guarantees of quality and non-discrimination because it requires men to prove dependency in order to benefit from their estate, yet the condition does not apply to widows. The ruling acknowledged that this differential statement is discriminatory and cannot withstand constitutional scrutiny.

 The decision stems from a case filed by a man identified as the husband of the late Caroline Wawira. The two were married under Kiembu Customary Law since 2002 and had two children. The couple maintained cordial relations and raised their children together, despite them being separated in 2022. After Wawira’s death in 2023, the petitioner was excluded from burial arrangements by the deceased’s partner, resulting to a legal battle that ultimately granted him burial rights through the Mavoko Law Courts.

The core of the constitutional petition centered on the petition’s challenge to Section 29(c) of the Law of Succession Act. He contended that the provision imposed a discriminatory burden on widowers, one not similarly imposed on widows. His legal team led by Shadrach Wamboi argued that the section violates Articles 27 and 45(3) of the Constitution, which upholds equality before the law and guarantees equal rights within marriage. The Attorney General, who was listed as the respondent, opposed the petition and argued that he had no mandate to change the law. However, the court dismissed the arguments and argued that the matter was not about estate distribution but a clear case of constitutional interpretation.