NAIROBI, Kenya — The High Court has ruled that a woman may inherit from a deceased partner’s estate even if their marriage was legally invalid because he was still in a monogamous marriage with another woman at the time.
In a judgment delivered by Justice Hilary Chemitei, the court held that Section 3(5) of the Law of Succession Act protects spouses and children in such unions for purposes of inheritance, even where the marriage itself would otherwise be considered legally invalid.
“Since the Act declared a customary marriage to be valid despite the existence of a monogamous marriage being alive, then, by the same breath, any second monogamous marriage like the case at hand will be deemed valid for purposes of the Succession Act and in particular sections 29 and 40 thereof,” Justice Chemitei ruled.
Marriage declared invalid but family protected
The dispute arose after a woman sought recognition as a beneficiary of a deceased man’s estate.
Her claim was challenged on the grounds that the deceased had contracted a monogamous marriage in 1987, which remained legally in force until it was dissolved through divorce proceedings in 2020.
Court records showed that the deceased entered into a customary marriage with the woman in 2015 before later formalising the relationship through a civil marriage in Tanzania while the first marriage was still subsisting.
Justice Chemitei acknowledged that the second marriage was legally invalid because the earlier monogamous marriage had not been dissolved.
“In this case, the deceased indeed underwent a customary marriage ceremony and later validated it through a civil union. My position is that the same, to the extent that the first marriage was still subsisting, was null and void legally speaking,” the judge observed.
Succession law protects spouses and children
Despite finding the marriage legally defective, the court held that the deceased had consistently treated the woman as his wife, publicly introduced her as such and fathered two children with her.
Justice Chemitei said Parliament enacted Section 3(5) of the Law of Succession Act to safeguard spouses and children in relationships that, although legally flawed, were recognised by the deceased as family units.
“The objector and her children are recognised as wife and children of the deceased under succession law,” the court ruled.
The judge allowed the woman’s objection proceedings and appointed her as a joint administrator of the estate alongside the existing administrators.
The parties were directed to seek confirmation of the grant within 45 days.
Distribution to be determined later
The court clarified that the ruling only determined the woman’s status as a beneficiary and administrator of the estate.
It noted that the question of how the deceased’s estate will ultimately be distributed among all beneficiaries will be decided in separate succession proceedings in accordance with the Law of Succession Act.