Remarried widows can now access and inherit property owned by their late ex-husbands.
Justice Edward Murithi of the Meru High Court issued the ruling on Thursday, September 29, declaring several sections of the Succession Act unconstitutional and invalid.
“This petition was inspired by the complaints from widows in the country. Immediately a widow decides to remarry, they lose the right to the deceased’s husband’s estate.
"Many widows have thus been forced to opt for consensual unions,” John Baidoo, lawyer to the petitioner told the court.
Among the sections invalidated were Section 35 (1) (b) and 36 (1) (b). Section 35 (1) (b) states that a surviving spouse with children is entitled to the estate of the deceased but if the spouse is a woman, the interest is denied when they remarry.
Section 36 (1) (b) on the other end dictated that a serving spouse with no child is entitled to a percentage of the estate. If the surviving spouse is a woman, the interest is denied when they remarry.
The petitioner had challenged the constitutionality of these sections among others in the Succession Act.
Notably, the petitioner was joined by the Federation of Women Lawyers (Fida) Kenya and Inua Mama Mjane to challenge the parts of the act.
From the other sections, the petitioners argued that the Act heightened gender-based imbalance and discrimination against women in Kenya. They thus wanted section 32 and the adjoining section 33 declared invalid.
The judge, however, dismissed their request noting that the petitioner did not provide weighty evidence to declare Section 32 unconstitutional. Additionally, he vowed to provide the verdict on section 39 (1) (b) which was also challenged.
“The Attorney General shall get a copy of this judgment and may act as deemed fit,” Justice Murithi announced.
Recently, the Judiciary rolled out guidelines to follow in matrimonial property sharing. Among the guidelines was that property rights can be applied by, among others, a spouse and an executor of a will.
However, an application should be filed within 12 months from the date on which the final order concluding a divorce is issued.
