NAIROBI: The pace at which the personal laws have been and are changing is bringing forth contradictions, challenges and dilemmas that need to be appreciated and addressed.
The tripartite confluence of the 2010 Constitution, the marriage laws contained in the Marriage Act and Matrimonial Properties Act and the old Succession laws creates anomalies for a special class of Kenyans – the widows and ladies who cohabit without conducting formal marriages. The rights of children born out of wedlock are also unprovided-for where the putative father dies without acknowledging parentage.
Succession laws prior to colonisation were tribal and customary and later came the racial and religion- based laws, mainly contained in the Indian Succession Act of 1865. Thankfully, a universal law of Succession was enacted on July 1, 1981. This in retrospect is turning to be a half-baked solution.
Laws of intestacy provided for under Part V of the Law of Succession Act do not apply to areas such as West Pokot, Turkana, Marsabit, Samburu, Isiolo, Mandera, Wajir, Garissa, Tana River, Lamu, Kajiado and Narok. This is certainly in contradiction to Article 27 (1) of the Constitution, which provides for equal protection and benefit of the law.
Section 35 of the Law of Succession Act, in confusing terminology, states that “subject to the provisions of section 40, where an intestate has left one surviving spouse and child or children, a surviving spouse shall be entitled to the personal and household effects of the deceased absolutely and a life interest in the whole residue of the net estate provided that if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person”.
Section 40 of the Act states, “...where any intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.”
The plight of a surviving spouse being a widow surfaces in the non-appreciation of what is a “life interest” and Kenyan courts have defined a life interest as “an interest in real or personal property measured by the duration of the holder’s or another person’s life”.
The end result is that a widow can enjoy a lifetime of income from a husband’s property but upon re-marriage or death loses that right absolutely. Where the assets in issue are land or even shares in a company, the widow would only be entitled to enjoy the income from the land and dividends since in most cases the asset itself would belong to the child /children of the deceased. Is all this fair taking into account the gender-sensitive provisions of the Constitution?
The Constitution under Article 45 (3) provided that parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage. The same provision is repeated in Section 3 (2) of the Marriage Act, 2014 but succession laws seem to give different rights to a wife.
Though Section 15 of the Marriage Act also provides that a widow or a widower may remarry or elect not to re-marry, Section 35 of the Law of Succession Act, by providing that, “if the surviving spouse is a widow that interest shall determine upon her re-marriage to any person”, is discriminatory.
Whether we admit it or not there is a mammoth social problem where Kenyan men after death are discovered to be maintaining concubines, mistresses and multiple families which have no right in law to the deceased’s estate if the deceased opts not to make a will, or disregards the relationship in the will.
The new definition of marriage vis-à-vis succession laws remains a thorny question. Was the deceased legally married to the person with whom he lived is a question often posed after death. There are many raging court battles – which go on for years – where various parties are attempting to prove marriage in suspect situations. The Marriage Act, 2014 makes matters worse as it does not recognise long cohabitation as a form of marriage as was the case before its enactment.
Intestacy law manifestations arising from beneficiaries under monogamous and polygamous unions are provided for but out of wedlock unions remain a taboo.
The National Gender and Equality Commission and organisations such as the Federation of Women Lawyers Kenya (FIDA), should actively drive the cause of this group of women that seems to have been forgotten.