A widower has moved to court challenging a section of succession law barring men from becoming heirs of their estranged spouses’ wealth.
In a case before the High Court in Nairobi on Monday, Dennis Kivuti argues that section 29 (c) of the Succession Act is unconstitutional for requiring a man to prove the deceased woman was maintaining him during her lifetime or before her death for the court to allow him inherit her wealth.
In his case against the Attorney General, Kivuti said that section unfairly discriminates men while giving women and children an automatic right to a man’s wealth.
His lawyer, Shadrack Wambui, observed that part A and B stipulates that a wife, a former wife or wives qualify as a dependent even when she was not maintained by a deceased man.
“That a primafacie look at Section (c) of the above mentioned provision of law places conditions on the husband to discharge the burden of proof imposed on him that he was being maintained by her immediately prior to the date of her death. Section (a) of the same provision relating to women negate any such requirement of maintenance prior to their husband’s death,” argued Wambui.
Kivuti narrated that he married Caroline Wawira in April 2002 and moved in together. The marriage was sealed through Kiembu customs and had two children, now 13 and 14 years.
However, the unfortunate happened on Jul 24, 2023, Wawira died. Kivuti claimed the death was mysterious as she was headed to work.
In the meantime, he explained that he had separated with Wawira last year but retained close relationship.
He claimed Wawira had expressly stated that she ought to be buried at her matrimonial home built together with Kivuti.
Further, Kivuti alleged that, Wawira’s family however sidelined him upon her death and buried her on August 4 without his input. He later came to learn that Wawira had an alleged partner.
According to Kivuti, the burial plans and the succession law locked him out from either paying final respect to Wawira. In addition, he said, it created a barrier for him to be considered an automatic heir to Wawira’s wealth. According to him, section 29 (c ) discriminates men.
“The saddening state of affairs enumerated above display the grueling lengths widowers like the petitioner have to go through to even have a say in their late wife’s final send-off in addition to the uphill task regarding the deceased send-off, the petitioner by dint of Section 29 (C) of the law of Succession Act will have to prove dependence on the deceased if he is to be considered as a dependent with regards to the net estate,” said Kivuti’s lawyer.
Mungai asked the court to declare the section unconstitutional. At the same time, he asked the court to direct Parliament to ammend the current law for equality between men and women.