Justice Lawrence Mugambi has ruled a Section of Law of Succession as Unconstitutional. Photo: KBC.
Justice Lawrence Mugambi has declared Section 29(c) of the Law of Succession Act unconstitutional, after he cited gender-based discrimination against widowers.
In their High Court ruling made on Friday 20, Mugambi stated that the provision which requires a husband to prove he was dependent on his deceased wife in order to qualify as a beneficiary of her estate violates the Constitution’s guarantees of equality and non-discrimination.
“Such differentiation based on gender undermines the constitutional principle of equality, particularly in a marital setting,” the court ruled.
According to a report by Citizen Digital the ruling follows a case by husband of the late Caroline Wawira Njagi, who had been married under Embu Customary Marriage in 2002, until their separation in 2022.
July 2023, the petitioner was excluded from burial arrangements by the deceased’s partner, prompting a legal battle that ultimately granted him burial rights through the Mavoko Law Courts.
According to Mugambi, the now leaves the burden to Parliament, either amend the law or reinstate the law, arguing that it is the sole responsibility of Parliament to amend or repeal the laws, that the judiciary cannot interfere with.
“This is not a dispute over distribution of the deceased’s estate, but a clear question on the constitutionality of the law,” Mugambi ruled.
Instead, the court issued a declaratory order, declaring Section 29(c) unconstitutional, null, and void. No costs were awarded, with the judge noting that the petition served the broader public interest.
The ruling sets a critical precedent in aligning Kenya’s succession laws with constitutional standards on gender equality and may trigger broader reforms in inheritance law.
“The authority to amend or repeal legislation rests solely with Parliament. Courts cannot compel legislative action in a particular direction,” ruled.
The ruling is a win for men, who have been long period been discriminated for awhile by the constitution, marking a new milestone in the course of equality.
