High Court Strikes Out Discriminatory Succession Law, Grants Widowers Equal Inheritance Rights

In a landmark ruling delivered on June 19, 2025, the High Court of Kenya declared Section 29(c) of the Law of Succession Act unconstitutional, acknowledging that the law unfairly discriminates against widowers. Justice Lawrence Mugambi held that while the law mandates that a husband must prove he was financially dependent on his deceased wife to inherit her estate, no similar requirement exists for widows under Section 29(a)—a clear violation of the equality and non‑discrimination guarantees in Articles 27(4) and 45(3) of the 2010 Kenyan Constitution.

The petition challenging the section was brought by a man known as DKM, who argued that the dependency requirement infringed on his marital and inheritance rights—a burden not imposed on women—and thus deprived him of equal treatment under the law.

Justice Mugambi emphasized that whereas the Constitution ensures that spouses have equal rights “at the time of marriage, during marriage and at the dissolution of marriage,” the law’s gendered expectation was unconstitutional and unsustainable under modern jurisprudential standards.

“I find that there is discriminatory definition of the word ‘dependant’ whereby Section 29 (c) of the Law of Succession requires the husband of a deceased wife to prove dependency while no such condition is required under Section 29 (a) of the Law of Succession on a deceased husband’s wife, hence Section 29 (c) cannot stand constitutional scrutiny,” Justice Mugambi ruled.

As such, he repealed Section 29(c), declaring it null and void, though he stopped short of ordering Parliament to amend the law—upholding the doctrine of separation of powers and noting that legislative change rests with Parliament.

The case emerged following the death of the petitioner’s wife in mid‑2023. Married under Kiembu customary law since 2002 and amicably separated in 2022, the couple had two children. Upon her passing, inheritance and burial disputes arose when the petitioner was excluded by the deceased’s partner. This prompted him to seek burial rights via the Mavoko Courts before petitioning the High Court to strike down the discriminatory provision in the Succession Act.

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In court, the Attorney General’s office had argued that the petition belonged to the Family Division and contended that the section’s constitutionality wasn’t satisfactorily proven. The court, however, found both objections unpersuasive, holding that constitutional interpretation trumped procedural forum concerns and that the petitioner had made a compelling case regarding gendered discrimination .

Legal analysts say this ruling sets an important precedent by signaling that pre‑2010 statutes must conform with contemporary constitutional values. While the court’s declaration doesn’t immediately amend the law, it sends a strong message that Parliament should reform remaining discriminatory statutes. Crucially, it offers precedent for claims against unequal and gender‑biased modus operandi in inheritance law.