Rethinking Kenyan Succession Laws: Re-married Widows Have A Right To Their Ex- Husband's Property

Kenya has made a lot of strides recognizing equality between the male and female gender and the courts are working to ensure that the right to equal treatment (non-discrimination based on gender) is upheld even in our laws. The law governing the Succession process in Kenya was established long before the 2010 Constitution and while the stakeholders deliberate amending the laws to catch up with the Constitution, the Honorable Courts are working to expunge provisions that infringe Constitutional rights. The High Court of Kenya sitting in Meru in Constitutional Petition No E017 of 2021; Ripples International (Petitioner) versus The Honorable Attorney General (1^st Respondent), The Speaker, The National Assembly (2^nd Respondent) and FIDA (Interested party) stated as follows, “Article 27 of the Constitution of Kenya provides for Equality and freedom from discrimination. Article 27 (3) further states; “Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.” Article 45 (3) of the Constitution of Kenya 2010 goes on to provide that; “Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.” The above stated holding by the Constitutional Court bears the crux of our legal alert today.

Brief facts of the case

The petitioner asked the Court to assert the equal rights of women specifically widows. This was done by asking the court to declare the following provisions of the Law of Succession Act unconstitutional:

1. Section 35 (1b) of the Law of Succession Act- Which provided for extinguishing of the life interest of a widow upon remarriage where intestate has left one surviving spouse and child or children;
2. Section 36(1) b of the Law of Succession Act- Which provided for extinguishing of the life interest of a widow upon remarriage where intestate has left one surviving spouse but no child or children and;
3.  Section 39 (1) (a) and (b) of the Law of Succession Act. - Which placed the father in priority over the mother where an intestate has left no surviving spouse or children.

The effect of declaring the above provisions unconstitutional is to grant women (widows) equality in the aspects of inheritance upon remarriage.

What is the effect of this Judgment on widows going forward?

Life interest is defined as interest in property that lasts for a person’s life time. The court in this case allowed widows (women) to have an entitlement to a life interest in the deceased spouse’s property even when they remarry as opposed to the previous position where the widow’s entitlement extinguished upon remarriage. The benefits widows are now entitled to as a result of this judgment include; full ownership of the property, allowing then to deal with the property during the lifetime including to sell or will it as part of their succession planning.Please click here to download the alert.

How can we help?

We can help you advance your rights in intestate succession proceedings. Our Wealth and Private Client team understands the legal provisions that ensures the net intestate’s estate is distributed to the rightful beneficiaries. We are equally equipped to handle other matters such as estate planning, drafting of wills, setting up and managing a trust and business succession planning. Suffice to say, it is important to ensure one has a plan on how his or her wealth ought to be distributed in the event of demise.  We can also partner with Gabael Trust to provide you with various estate planning options depending on your needs. We offer quick turnaround timelines and will be delighted to receive your feedback, and inquiries and offer our services on this and any other of our practice areas. Should you have any questions regarding the subject of establishing a blind trust or a family trust, or related topic, please do not hesitate to contact  us on law@cmadvocates.com or dgichuru@cmadvocates.com

Contact Persons & Contributors

Dianah M. Gichuru –Partner & Head of Unit Nelima Walubengo- Senior Associate Brian Okwalo- Associate

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