The High Court has declared Section 29(c) of the Law of Succession Act unconstitutional, in a landmark ruling that advances gender equality in inheritance matters.
Justice Lawrence Mugambi found that the section discriminates against widowers by requiring them to prove dependency on their deceased wives—a burden not placed on widows.
The case was filed by a man identified as the husband of the late Caroline Wawira Njagi. The two had been married under Kiembu Customary Law since 2002 and had two children. Although they separated in 2022, they maintained cordial relations and co-parented their children.
Following Wawira’s death in July 2023, the petitioner was excluded from burial arrangements by the deceased’s partner, prompting a legal dispute that led the Mavoko Law Courts to grant him burial rights.
Central to the constitutional petition was the petitioner’s challenge to Section 29(c), which he argued imposed a discriminatory legal threshold on widowers.
Represented by lawyer Shadrach Wamboi, he cited Articles 27 and 45(3) of the Constitution, which enshrine the right to equality and equal treatment in marriage.
The Attorney General, listed as the respondent, opposed the petition. He argued that matters of succession belonged in the Family Division of the High Court and that he lacked the authority to amend or enact laws—powers reserved for Parliament.
The AG also claimed that the petitioner had not met the required legal standard for proving a constitutional violation.
However, the court firmly rejected those arguments. Justice Mugambi ruled that the petition was not about estate distribution, but about the constitutionality of a statutory provision.
“This is not a dispute over distribution of the deceased’s estate, but a clear question on the constitutionality of the law,” he said.
The judge found the legal distinction in Section 29(c) to be unjustified and outdated. “Such differentiation based on gender undermines the constitutional principle of equality, particularly in a marital setting,” the judgment read.
Citing previous constitutional rulings such as Ripples International v. Attorney General and Rose Wangui Mambo v. Limuru Country Club, Justice Mugambi emphasized the need for pre-2010 statutes to be aligned with the values of the current Constitution.
While the court stopped short of ordering the Attorney General to initiate legislative amendments—citing the doctrine of separation of powers—it issued a declaratory order stating that Section 29(c) is unconstitutional, null, and void. No costs were awarded, as the matter was deemed to be in the public interest.
