Judge questions law that disinherits widows when they chose to re-marry

A judge has questioned a law that deprives widows of their inheritance from the first marriage if they choose to remarry once they lose their husbands.

Justice Reuben Nyakundi says the provisions in the Law of Succession Act that remove widows from the line of inheritance are an outright violation of their rights under the Constitution.

According to Justice Nyakundi, the provision offends Article 27 of the Constitution as it amounts to discrimination as well as inhibiting widows from exercising their rights under Article 45 of the Constitution on the right to marry based on free consent.  

“It is also important to underscore the fact that in the current inheritance legal policy and legislative scheme, one can say with certainty that widows are deprived of their right of inheritance if they are remarried to a person out of the family of the deceased husband,” the judge noted.

Nyakundi argues that the right to marriage is not limited to a first marriage, saying that once a woman loses her husband, she is at liberty to remarry, and that can't be used to justify the deprivation of her rights.

“This right to marriage is not limited to the scenario of a first marital union and in the event the female spouse by an act of God happens to lose her husband by dint of death and whatever circumstances as to her age she is prohibited from entering into any form of marriage and if she does so her rights to inheritance are restricted or by effluxion of the law her shares revert to the Intestate Estate.”

Justice Nyakundi declared that equal rights do exist for both men and women to acquire new marital rights either on the dissolution of the first marriage or upon the death of a spouse.

This change of status, according to the Judge, should not deprive a widow of her rights of inheritance acquired and guaranteed during the first marriage, while calling on parliament to review the current Law of Succession.

“This is a conversation the drafters of the Law of Succession Act must confront, as it is a human rights issue, and the extent of discrimination within the spectrum of the equality clause must be mitigated. That is insofar as this question of the overall scope of inheritance as seen from the lens of the prevailing Legal Regime in Kenya.”

Nyakundi, who is based in Eldoret High Court, made the comments in an application for review in the matter of the Estate of the late Kiptanui Simatwa, where one of the widows returned to court seeking a review of an early decision of the court.

Other than the Constitution, Nyakundi noted that international conventions such as the Universal Declaration of Human Rights (Article 16) and the Convention on the Elimination of ALL forms of Discrimination against women adopted by the UN General Assembly by Resolution 34/180 of 18 December 1979, outlaw any form of discrimination.

The judge said that although there are progressive provisions in the country’s supreme law aimed at addressing inequalities in property and inheritance for women, some statutory provisions and application of customary law still impede women from achieving these rights.

“This is not to say that the lingering inequality question on inheritance rights within our borders is yet to be completely erased, given the contextualized Societal norms yet to have a complete paradigm shift on culture change, which by and large influences inheritance rights in Kenya.”