Court rules men can inherit their wives’ wealth too, but it has a unique twist

That was the legal reality until June 19, when Justice Lawrence Mugambi declared Section 29(c) of the Law of Succession Act unconstitutional in a case filed by Dennis Kivuti Mungai against the Attorney General, relating to the estate of Mungai’s late but estranged wife Caroline Wawira Njagi.

The court found that requiring a husband to prove dependency on the wife - while not imposing the same burden on a wife - violated the Constitution’s guarantees of equality and non-discrimination.

In declaring the law unconstitutional, the Court followed the precedent set in another case, Ripples International v Attorney General, which struck down other gender-discriminatory provisions in the same Law of Succession Act.

Section 29 of the Law of Succession Act defines who qualifies as a "dependant" entitled to inherit from a deceased person's estate. Under its form before the Judgement: A wife, even a former wife, qualifies as a dependant of a deceased husband merely by proving the existence of marriage.

A husband, however, must prove that he was being maintained by the wife immediately prior to her death if he is to qualify for inheritance from her estate.

This discordance is rooted in the succession law’s historical context. Enacted in 1972 but commencing in 1981, the Law of Succession Act reflected the patriarchal assumptions of the time - namely, that men were the default breadwinners and property owners, while women were automatically dependants.

And so, for decades, many widowers have simply walked away, leaving behind property they may have built together, lost in a legal fog. Until Mungai came.

Read:  Here are essential estate planning tips for widows

The Mungai Case: A legal and social watershed

The petitioner, Mungai, had been separated informally from his late wife, Wawira. Despite their separation, he remained involved in raising their children. Unfortunately, Wawira died without a Will.

Without a will, upon Wawira’s death, Mungai was excluded from burial arrangements – he had to get a court order just to bury his own wife. Later, when it came to the estate, he faced the harsh reality of Section 29(c), which barred him from inheriting unless he could prove that Wawira had been maintaining him.

His argument was simple: why should a man have to prove dependency when a woman doesn’t? Why this glaring inequality?

The High Court agreed. Justice Mugambi issued a declaration that Section 29(c) was unconstitutional, null, and void. Men and women, he said, must stand on equal legal footing, in life and death.

The above is not just a courtroom drama. It happened to others - it can happen to you.The fate of your family might all depend on a judge’s interpretation, one cold rainy afternoon. He will do his best, but you also need to do yours.

Register your marriage. Do your succession planning now. Draft a will. Talk to a succession lawyer. Don’t wait for death and court battles to define your legacy.

The post-judgment paradox: A legal twist

The immediate effect of the Court's judgement is clear: Section 29(c) can no longer be enforced. Widowers can now be considered dependants on the same terms as widows - without having to prove maintenance.

However, the decision also created an unintended anomaly: with Section 29(c) struck down, the term “husband” no longer appears anywhere in the list of dependants in Section 29. The section mentions “wife or wives.”

mentions children. It mentions parents and siblings, if the deceased was supporting them. But husband? It does not, anymore!

By striking out the only clause that mentioned him - even though it was a discriminatory clause - the law, read literally, now erases a husband from the list of dependants completely.

Previously, a man had a chance, however humiliating. Now? Not even there. A literal reading means a husband cannot inherit from a deceased wife. It’s a perfect, terrible irony. Yet such an interpretation would undermine the very purpose of the judgement and contradict constitutional principles.

In real terms, if Parliament doesn't act fast to insert "husband" (or, ideally, replace all gendered terms with the word "spouse"), some future court might literally rule that husbands aren’t dependants at all.

Fortunately, most courts are practical. Courts are constitutionally required to interpret statutes in a way that gives effect to equality and non-discrimination. As such, any attempt to argue that husbands are now disqualified from inheritance would be likely rejected as absurd and unconstitutional.

Indeed, it cannot be seriously argued that the High Court’s decision removes husbands from inheritance rights – instead, it elevates them. By eliminating the discriminatory hurdle of proving maintenance, the Court has brought husbands onto equal footing with wives under Section 29(a), by necessary implication.

The way forward: Legislative clean-up

Ultimately, the Judiciary has done its part by identifying the constitutional defect and offering a clear interpretive pathway.

Now, it is Parliament’s responsibility to align the statute with the Constitution. A clean, gender-neutral amendment of section 29 - replacing “husband” and “wife” with “spouse” - would resolve the ambiguity and reflect the lived realities of modern Kenyan families.

This is not the first judicial intervention to declare a provision in succession law unconstitutional. It builds on another case, Ripples International, where Justice Edward Muriithi invalidated other parts of the same law that were just as sexist - like the one that said a widow lost her inheritance if she remarried, a rule that never applied to men.

And the one that said a father had more right to a deceased child’s property than a mother. The Court held that such distinctions were indefensible in a modern society and violated the Constitution. The Mungai decision builds upon this jurisprudence, reinforcing a clear trend: the law must treat men and women equally in matters of inheritance.

Parliament should consolidate these decisions and make a wholesome amendment to the law of succession.

Kenya's succession laws are undergoing a long-overdue transformation. The Mungai ruling is a milestone in this journey, marking a shift away from outdated gender roles and toward constitutional parity.

While the legislative text may confuse or lag behind, its discriminatory application has been definitively rejected. Widowers can now claim their rightful place in the law - no longer as conditional dependants, but as equal spouses under the Constitution.

What it means for you

Think about it: If your wife owns the family house or car, and you’re not legally married (no marriage certificate), and she dies without a will, your claim as a husband might be shakier than in the Mungai case.

If your marriage is rocky, or you live separately, it gets worse. The legal system might have no sympathy for you.

The writer works at Muri Mwaniki Thige & Kageni LLP Advocates