Kenya's complex succession laws often leave widows vulnerable to property grabbing and disinheritance.
A judge has asked lawmakers to fix unfair laws that affect widows who remarry under Law of Succession Act.
The High Court in 2022 declared unconstitutional parts of the law that limited a widow’s inheritance if she remarried.
However, Justice Reuben Nyakundi said many women are still afraid to claim their rights because of Kenya’s patriarchal culture.
The judge said a widow should be free to remarry without losing her inheritance. He said that under the current law, a widow’s inheritance can be taken away or returned to her late husband’s estate if she remarries.
“I am of the considered view that equal rights do exist for both men and women to acquire new marital rights either on the dissolution of the first marriage or upon death of a spouse. This change of status should not deprive a widow of her rights of inheritance acquired and guaranteed during the first marriage,” said the judge.
Sections 35(1)(b) and 36(1)(b) of the Law of Succession Act had stated that a widow would lose her life interest in her deceased husband’s property if she remarried.
A widower, however, did not face the same restriction and the court declared the sections unconstitutional because it discriminated based on gender and in violation of Article 27(4) of the Constitution.
Justice Reuben Nyakundi.
Justice Nyakundi noted that traditional domestic roles have made women dependent on men when it comes to property rights, especially under customary law.
He said widows are often expected to remain under the control or influence of their paternal families, and if they remarry, under the control of their in-laws. The court observed that many families try to keep property within male members of the family.
According to the judge, the drafters of the Law of Succession Act must address this issue because it concerns human rights and equality.
The court also noted that inequality in inheritance rights still exists because social and cultural attitudes have not fully changed. These norms continue to influence inheritance practices in the country.
The court said this situation has seriously affected the financial and property rights of women in Kenya.
“It is also important to underscore the fact that the current inheritance legal policy and legislative scheme one can say with certainty that widows are deprived of their right of inheritance if they are remarried to a person out of the family of the deceased husband,” said the judge.
The court said this raises a fundamental legal question pertaining to property rights and the scope of the right to equality and freedom from discrimination and the right to marry a person based on the free consent.
Widows of Kenyan police officers toil to chase pensions.
The judge repeated that men and women have equal rights to remarry after divorce or the death of a spouse.
“In our constitutional dispensation Article 45(2) provides as follows: “Every adult has the right to marry a person of the opposite sex based on the free consent of the parties,” he said.
Justice Nyakundi stressed that a change in marital status should not take away a widow’s inheritance rights gained during her first marriage.
Justice Nyakundi made the remarks in a succession case involving the estate of Kiptanui Simatwa, a polygamous man from Eldoret.
In the case, some family members asked the court to review a judgment delivered last year on how the estate was shared. They argued that two adopted children had wrongly been included as beneficiaries in the succession dispute.
Follow our WhatsApp channel for breaking news updates and more stories like this.
