Law denying remarried widows right to ex-husband property declared unconstitutional

The High Court in Meru has declared sections of the Succession Act unconstitutional for denying widows the right to inherited property when they remarry.

Justice Edward Murithi, in a judgement issued on Thursday, found that section 35 (1) (b) and section 36 (1) (b) were unconstitutional in a petition filed by Ripples International.

The cited parts of Section 35 and Section 36 of the Act denies a widow the right to the deceased husband's estate if she remarries.

Ripples International, a non-governmental organisation based in Meru that protects the rights of women and children filed the constitutional petition last year. Federation of Women Lawyers (Fida) Kenya and Inua Mama Mjane were enjoined as interested parties.

In the petition, Ripples International challenged the constitutionality of sections 32, 35 (1) (b), 36 (1) (b) and 39 (1) (b) of the succession act.

However, Justice Murithi ruled that the petitioner did not provide sufficient evidence to warrant the declaration of section 32 and the adjoining section 33 invalid. 

The judge did not pronounce himself on 39 (1) (b), which he promised to address after Ripples International lawyer Samson Macharia cited the omission.

“The Attorney General shall get a copy of this judgement and may act as deemed fit,” Justice Murithi directed.

Section 32 of the Succession Act provides for property and districts which are excluded from the provisions of the law when someone dies without a will.

The excluded property includes agricultural land and crops or livestock in West Pokot, Turkana, Marsabit, Mandera, Wajir, Garissa, Tana River, Narok, Samburu, Isiolo, Lamu and Kajiado.

The Act provides that the deceased’s community or tribal law shall be applied in the listed areas if they did not have a will.

Ripples International argued that Section 32 goes against the constitutional provision for equal protection, rights and fundamental freedoms.

“The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth,” the petitioner argued 

On Section 35 and 36 of the Succession Act, Ripples International argues that Section 45 (2) and (3) of the constitution provides for the right to marry and equality of marriage partners.
 
“…This therefore means that any provision that undermines the right of a party to marry or to equality of party to a marriage, by treating one party differently, contravenes the constitution.” The organisation argues.

The petitioner added that the Act promotes gender based inequality and discrimination against women in Kenya.

Addressing journalists after the judgement, Ripples International resident lawyer John Baidoo, welcomed the decision of the court terming it a win for women in Kenya.

“This petition was inspired by the complaints from widows in the country. Immediately a widow decides to remarry, they lose the right to the deceased’s husband’s estate. This has forced many widows to consensual unions.”

He added: “One part of the law says you have a right to marry but takes the right away from widows.”

Mr Baidoo, a human rights lawyer, said the judgment has opened a new front for legal reforms to ensure the sections are expunged from the Succession Act.

“We urge the Attorney general, Parliament and the Kenya Law Reform Commission to enforce the law reforms following the decision of the court,” he said.

He said the organization was waiting for directions on section 39 (1) (b) which he said gives priority to a father over a mother on inheritance where the deceased does not have a will.

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