The High Court has made an important decision by declaring Section 29(c) of the Law of Succession Act unconstitutional because it discriminates against men.
The court found that this part of the law treats widowers unfairly by forcing them to prove that they were depending on their wives financially before they can inherit from them.
Widows, on the other hand, are not required to prove such dependency. Justice Lawrence Mugambi, who made the ruling, said this violates the Constitution, which clearly protects equality and does not allow any form of discrimination based on gender.
This case was brought forward by a man who had been married to the late Caroline Wawira Njagi under Kiembu Customary Law since 2002. The couple had two children and even though they separated in 2022, they still co-parented and kept in touch.
When Wawira died in July 2023, her new partner left the petitioner out of the burial plans.
This led the man to go to court, where the Mavoko Law Courts gave him the right to participate in the burial. But his bigger fight was with Section 29(c) of the law, which he believed was unfair to men in similar situations.
The man’s legal team, led by lawyer Shadrach Wamboi, argued that the law was unconstitutional. They pointed to Articles 27 and 45(3) of the Constitution, which promise equality before the law and equal treatment in marriage.
The Attorney General, who was the main respondent in the case, disagreed with the petition. He argued that it was not his job to change laws and that only Parliament has that power.
He also said the case should have been taken to the Family Division of the High Court and that the petitioner had not clearly shown how his rights were violated.
But Justice Mugambi rejected those arguments. He said the case was not about who should get what from the deceased’s estate, but about whether a law was fair or not. The court ruled that forcing only men to prove dependency in order to inherit is a form of gender discrimination.
This, the judge said, goes against the equality the Constitution protects, especially when it comes to marriage. The court also referred to past cases that showed how older laws must be reviewed and changed to match the current Constitution, which was passed in 2010.Even though the court found the law unconstitutional, it did not force the Attorney General to change the law.
The judge said that only Parliament has the power to change or remove a law. Courts are not allowed to tell Parliament what to do. Instead, the court declared that Section 29(c) is now invalid and should not be used.
The judge also said that the petitioner would not be awarded any legal costs because the case was brought for the public good.
This decision could lead to big changes in Kenya’s inheritance laws. It puts pressure on lawmakers to review and fix other parts of the law that may still treat people unfairly based on their gender. It also sets a strong example that all Kenyans, whether male or female, must be treated equally under the law.
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