In a landmark ruling (Dennis Kivuti Mungai v The Honourable Attorney General [HCCHRPET/E416/2023]), Kenya’s High Court has declared Section 29(c) of the Law of Succession Act unconstitutional, null, and void. The decision, handed down on June 19, 2025, is a bold step toward dismantling outdated legal provisions that discriminate against men in inheritance matters. For widowers across Kenya, this ruling could transform how they access their late wives’ estates, while sparking a broader conversation about equality in family law. So, what’s the story behind this case, and why does it matter?
The Core Issue: A Widower’s Quest for Justice
The Petitioner, a widower from Embu, challenged Kenya’s succession laws after his wife’s death in July 2023. Married under customary law since 2002, the couple had two children and, despite separating in 2022, maintained a cordial relationship to co-parent. When the deceased passed away, the Petitioner faced not only grief but also legal obstacles to secure his rights as her husband.
At the heart of the dispute was Section 29(c) of the Law of Succession Act (Cap 160), which defines who qualifies as a “dependent” entitled to inherit from a deceased person’s estate. For a widower to benefit from his late wife’s estate, the law requires him to prove he was financially maintained by her before her death. No such condition applies to widows, who, under Section 29(a), are automatically recognized as dependents, along with children, “whether or not maintained by the deceased.” The Petitioner argued this double standard was discriminatory, breaching his constitutional rights to equality before the law (Article 27) and equal rights in marriage (Article 45(3)).
The Petitioner’s struggle extended beyond inheritance. When the deceased’s partner planned her burial in a location contrary to her wishes, the Petitioner had to seek court orders to ensure she was buried at their matrimonial home, highlighting his role as her legitimate husband. This experience fueled his challenge against a legal system that seemed to marginalize widowers.
The Respondent’s Counter: A Weak Defense?
The Respondent, the Attorney General, opposed the petition, raising several defenses. First, they argued the case belonged in the Family Division of the High Court, not the Constitutional and Human Rights Division, as it involved estate administration. They claimed the petition violated the constitutional avoidance doctrine, which favors resolving disputes through statutory remedies over constitutional challenges. Second, they insisted the Petitioner should have petitioned Parliament to amend the law, per Article 119 of the Constitution, rather than suing the Attorney General, who lacks legislative power. Finally, they defended Section 29(c), invoking the presumption of constitutionality and arguing that dependency is a factual issue requiring proof, not a gender-based bias.
The Court’s Verdict: Equality Prevails
The Judge rejected the Respondent’s arguments, delivering a clear and principled judgment. Here’s what the court held:
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Constitutional Avoidance Inapplicable: The court clarified that the petition focused on the constitutionality of Section 29(c), not estate distribution. Since the issue required assessing the law against the Constitution, it fell within the High Court’s jurisdiction under Article 165(3)(d)(i). The constitutional avoidance doctrine, which discourages constitutional rulings when statutory remedies exist, did not apply, as no statutory remedy could address the law’s alleged unconstitutionality.
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Petitioning Parliament Not Required: Citing cases like Pharmaceutical Society of Kenya v Attorney General (2021) and Council of Governors v Senate (2015), the court ruled that Article 119’s right to petition Parliament does not bar individuals from challenging a law’s constitutionality in court. The High Court’s authority to strike down laws inconsistent with the Constitution (Article 2(4)) prevails over claims that the Petitioner should have pursued parliamentary remedies first.
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Section 29(c) Discriminatory: The court found Section 29(c) unconstitutional for requiring widowers to prove dependency while exempting widows. This differential treatment violates Article 27(4), which prohibits discrimination based on sex, and undermines Article 45(3)’s guarantee of equal rights in marriage. Referencing Ripples International v Attorney General (2022), where provisions favoring men were invalidated, the Judge deemed Section 29(c)’s gender distinction “indefensible” and outdated, clashing with Kenya’s 2010 Constitution.
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Relief Granted: The court declared Section 29(c) unconstitutional, null, and void. However, it rejected the Petitioner’s request for a mandatory injunction to compel the Attorney General to initiate legislative reforms, citing the separation of powers. Under Article 94, only Parliament can amend laws, and courts cannot dictate legislative action. As a public interest case, no costs were awarded.
Why This Ruling Matters: A Leap Toward Gender Neutrality
This landmark ruling (Dennis Kivuti Mungai v The Honourable Attorney General [HCCHRPET/E416/2023]) is a milestone for several reasons. First, it ensures widowers are not unfairly burdened with proving dependency to inherit from their late wives’ estates, aligning with Kenya’s constitutional commitment to gender equality. It challenges outdated assumptions that men are always providers and women dependents, promoting a fairer legal framework. Second, it reaffirms the judiciary’s role as a protector of constitutional rights, confirming that citizens can directly challenge discriminatory laws without bureaucratic detours like petitioning Parliament.
The court, however, left room for future legislative clarity. It noted that requiring proof of dependency could be valid if applied equally to all spouses, hinting that Parliament might revise the law to impose this requirement on both widows and widowers. Until then, the ruling removes a discriminatory hurdle, but legislative action is needed to prevent confusion in succession cases.
The Broader Impact: Reforming Kenya’s Succession Law
This decision joins a wave of judicial efforts to address gender bias in Kenya’s succession law. Kenya’s courts are pushing for laws that reflect the 2010 Constitution’s progressive values. Yet, challenges persist. The Law of Succession Act, enacted in 1981, predates the current Constitution, and many provisions, like Section 29(c), conflict with modern equality principles.
For widowers, this ruling is a triumph, but it’s also a signal of hope for all Kenyans seeking a just legal system. As the ruling takes effect, the spotlight turns to Parliament: will it overhaul the Law of Succession Act to cement gender equality, or will more citizens need to turn to the courts? One thing is certain—the push for equality just gained momentum.
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