NAIROBI, Kenya — The High Court has declared Section 29(c) of Kenya’s Law of Succession Act unconstitutional, ruling that it unfairly discriminates against widowers by forcing them to prove dependency on their deceased wives in order to qualify as beneficiaries of their estates.
In a landmark judgment delivered by Justice Lawrence Mugambi, the court found that the section violates constitutional guarantees of equality and non-discrimination under Articles 27 and 45(3) of the Constitution, which guarantee equal treatment before the law and equal rights in marriage.
“This differentiation based on gender undermines the constitutional principle of equality, particularly in a marital setting,” Justice Mugambi said.
The petition was filed by a man identified as the husband of the late Caroline Wawira Njagi.
The two had been married under Kiembu Customary Law since 2002 and had two children.
Although they separated in 2022, they maintained cordial relations and jointly raised their children.
Following Wawira’s death in July 2023, the petitioner was excluded from burial arrangements by another of the deceased’s partners.
He later secured burial rights through a ruling by the Mavoko Law Courts.
But at the heart of his constitutional petition was a challenge to the legal requirement that only men must prove financial dependency to inherit from their spouses—a burden not imposed on widows.
His lawyers, led by Shadrach Wamboi, argued that Section 29(c) perpetuates gender bias and treats widowers as lesser spouses in the eyes of the law.
The Attorney General, who was listed as the respondent, opposed the petition on procedural grounds, claiming the matter should have been handled by the Family Division and that the petition lacked the legal precision required to prove constitutional violations.
He also argued that the AG’s office could not be compelled to amend the law, as that role belongs to Parliament.
But Justice Mugambi dismissed those objections, affirming that the case was rightly before the Constitutional and Human Rights Division, as it dealt with the validity of a legal provision—not the distribution of a deceased’s estate.
“This is not a dispute over inheritance or succession per se, but a direct constitutional question. The petition was properly framed and raises a matter of significant public interest,” the judge said.
He added that although courts cannot compel Parliament to legislate, they have a duty to interpret laws in line with constitutional values.
“Legislation predating the 2010 Constitution must be evaluated through a constitutional lens,” the judge said, citing precedents such as Ripples International v. Attorney General and Rose Wangui Mambo v. Limuru Country Club.
The court issued a declaratory order striking down Section 29(c) as unconstitutional, null, and void—but declined to issue a mandatory injunction against the Attorney General, citing the separation of powers.
“No court can direct Parliament on how to exercise its legislative mandate,” Justice Mugambi ruled.
