Kenyan High Court Strikes Down Discriminatory Inheritance Clause Against Widowers

The Kenyan High Court has invalidated a section of the Law of Succession Act that imposed a discriminatory requirement on widowers to demonstrate financial dependence on their deceased wives to inherit property. 

The ruling, delivered by Justice Lawrence Mugambi, strikes down Section 29(c) of the Act, citing its violation of constitutional guarantees of equality and non-discrimination. The court's decision, issued recently, is rooted in a legal challenge brought forth by a judicial officer, identified as DKM, following the death of his wife, CWN, in July 2023. DKM argued that the provision unfairly restricted his rights as a surviving spouse, as widows face no equivalent burden of proof when their husbands die intestate. 

Advocate Shadrack Wambui, representing DKM, asserted that Section 29(c) contradicted the principle of spousal equality and infringed upon DKM's fundamental rights. Justice Mugambi's ruling underscored the constitutional imperative of equal treatment under the law, stating that Section 29(c) could not withstand scrutiny as it "discriminates against the man in the relationship based on sex." The judge cited Article 27(4) and Article 45(3) of the Constitution, which enshrine equality and matrimonial equality, respectively.

Section 29 of the Law of Succession Act outlines the criteria for determining who qualifies as a "dependant" in intestate succession cases. While paragraph (a) of the section presumes dependency for widows regardless of financial support from their late husbands, paragraph (c) demands that widowers prove they were maintained by their deceased wives to be considered for inheritance.

"Such a requirement should however not apply discriminatively between spouses," Justice Mugambi noted. 

He elaborated that while requiring proof of dependency could be justifiable, the selective application of this requirement based on gender was constitutionally impermissible. DKM's petition highlighted the historical context of the law, which has remained largely unchanged since its enactment in 1981. He argued that the provision was outdated and incompatible with the current constitutional framework. Justice Mugambi concurred, emphasizing that laws predating the Constitution must be re-evaluated and invalidated if they conflict with its core values.

The case of DKM sheds light on the broader challenges faced by widowers in a legal system that has yet to fully embrace gender parity. According to court documents, DKM and CWN were married in April 2002 under Embu customary law and had two children. Despite living separately since 2022, DKM described their relationship as cordial. Following CWN's sudden death on her way to work, DKM claimed he was excluded from her burial arrangements and was dismayed to learn that she had been buried in Meru County against his wishes for her to be laid to rest in Embu.

"That in addition to the uphill task regarding the deceased send-off, the petitioner by dint of section 29(c) of the Law of Succession Act will have to prove dependence on the deceased if he is to be considered as a dependant with regards to the net estate," DKM said, illustrating the systemic inequities men face under the existing legal structure.

Legal analysts suggest that this ruling has far-reaching implications, extending beyond succession law to challenge patriarchal assumptions embedded in Kenyan family law. By challenging the presumption that women are inherently more likely to be economically vulnerable in marriage, the court is redefining modern marital dynamics and recognizing that dependency can occur regardless of gender.

Furthermore, the judgment underscores the judiciary's commitment to interpreting statutes through a constitutional lens, especially in light of evolving societal norms and renewed scrutiny of long-standing legal provisions.