The High Court has declared a section of Law of Succession Act unconstitutional for requiring widowers to prove that they were dependent on their deceased wives to benefit from their estate.
Justice Lawrence Mugambi said section 29(c) of the Law of Succession Act was discriminatory against men as it requires them to “prove dependency” in order to benefit from the estate, yet the condition does not apply to widows. The judge ruled that the provision was unconstitutional because it discriminated between men and women.
“I find that there is discriminatory definition of the word ‘dependant’ whereby Section 29 (c) of the Law of Succession Act requires the husband of a deceased wife to prove dependency while no such condition is required under Section 29 (a) of the Law of Succession on a deceased husband’s wife hence Section 29 (c) cannot stand constitutional scrutiny,” said the judge.
Justice Mugambi was quick to add that the ruling should not be understood to mean that the court is outlawing proof of dependency, but the pronouncement was illegal as to the extent that it imposes the condition on the widower while not requiring the same for the widow. “Otherwise, if the requirement of proof by either spouse claiming to be a dependant was not discriminative, I would find it in order because dependency is a question of fact and anyone claiming to rely on another should be able to establish that fact. Such a requirement should, however, not apply discriminatively between spouses,” he said.
Judge says that the section of the law advocating differential treatment of the man in respect of a deceased wife, who died without a will, as opposed to the woman whose husband has died intestate is unconstitutional.
Photo credit: Shutterstock
The judge ruled that the section was unconstitutional for advocating differential treatment of the man in respect of a deceased wife, who died without a will, as opposed to the woman whose husband has died intestate.
In the matter, a judicial officer identified as DKM argued that the said section was prejudicial to his interests as the husband, as it requires him to prove that he was a dependent of his late wife prior to her death, so as to be considered a beneficiary. The official pointed out that there no corresponding requirement for wives when their husbands die.
DKM argued that the law was enacted in 1981 and ought to be aligned to the current constitution. He submitted through his lawyer Shadrack Wambui that section 29 was a very vital provision in the Law of Succession Act as it determines who is to benefit from the estate of a deceased person.
Section 29 (a) states that the dependants do not only include “the wife or wives, or former wife or wives, and the children of the deceased” and proceeds to add emphasis that “whether or not maintained by the deceased immediately prior to his death”. Section 29 (c) states that, “where the deceased was a woman, her husband”, but with a rider that “if he was being maintained by her immediately prior to the date of her death”.
Justice Mugambi added that the constitution is categorical in Article 45 (3) that parties to a marriage are entitled to equal rights at the time of marriage, during marriage and at the dissolution of marriage. “… by applying different standards as is evident in Section 29 (c) [it] discriminates against the man in the relationship based on sex, which is a prohibited ground under Article 27 (4) of the Constitution, and also undermines the spirit of equality reinforced under Article 45 (3) as the dominant principle for such unions.”
Mr Wambui argued that the section violates Article 24 of the Constitution, which stipulates that rights or fundamental freedoms in the Bill of Rights shall not be limited except by law. “That the impugned section seeks to limit the enjoyment of the fundamental right to equal protection and benefit under the law and the constitutional guarantee of matrimonial equality,” he said.
The High Court has declared a section of Law of Succession Act unconstitutional for requiring widowers to prove that they were dependent on their deceased wives to benefit from their estate.
Photo credit: Shutterstock
DKM stated in his court documents that his wife, CWN, died on July 24, 2023 on her way to work. The two were married in April 2002 under the Embu customary law and they have two children. He said that despite living separately since 2022, the two enjoyed a cordial and harmonious relationship. Their children, he added, were well catered for and enjoyed an abundance of parental love. The arrangement was cordial and blissful.
Soon after her death, DKM moved to court to stop the burial process as it was planned without his involvement. DKM says he was informed of the burial but he was blocked from the process. She was eventually buried in Meru County on August 4, 2023 against his wish for CWN to be buried in Embu County.
The judicial officer said that what he went through during the saga shows the gruelling lengths that widowers like him have to go through to even have a say in their late wife’s final send-off. “That in addition to the uphill task regarding the deceased’s send-off, the petitioner by dint of section 29(c) of the Law of Succession Act will have to prove dependence on the deceased if he is to be considered as a dependant with regards to the net estate,” he said in the court documents.
Mr Wambui said the judicial officer and his teenage children face the real and looming threat of being disinherited whereas they are the lawful dependents of the estate of the late CWN. The lawyer pointed that in 2021, the Senate discussed the Law of Succession Bill, 2021 which proposed to amend section 29 and substituting the words with spouse or spouses and children of the deceased whether or not maintained by the deceased prior to the deceased’s death. The law was passed and assented to on November 17, 2021 by amending section 3 of the Act but he said it excluded the bulk of the contents contained in the Bill.
The Attorney-General had submitted in reply that there have been unsuccessful attempts to amend the law.
