On June 19, 2025, the High Court of Kenya at Nairobi (Justice Lawrence Mugambi) delivered a significant judgment in Mungai v Attorney General (Petition E416 of 2023) [2025] KEHC 8544 (KLR), declaring Section 29(c) of the Law of Succession Act 1981 unconstitutional, specifically holding that a surviving widower (husband) does not have to show that they were being maintained by the widow (deceased wife) to benefit from the widow’s estate as a dependant. This landmark ruling addresses discriminatory provisions in Kenya’s succession laws, reinforcing constitutional guarantees of gender equality under Articles 27 and 45(3) of the Constitution of Kenya, 2010.
Case Background
The petitioner, Dennis Kivuti Mungai, challenged the constitutionality of Section 29(c) of the Law of Succession Act (Cap 160), which defines a “dependant” in the context of a deceased woman’s estate as “her husband if he was being maintained by her immediately prior to the date of her death.” Mungai argued that this provision discriminates against widowers by requiring them to prove dependency to benefit from their late wife’s estate, a condition not imposed on widows under Section 29(a) when claiming from a deceased husband’s estate. The petitioner contended that this discrepancy violates Article 27 (equality before the law) and Article 45(3) (equal rights in marriage) of the Constitution.
The case arose from Mungai’s personal circumstances following the death of his wife, Caroline Wawira Njagi, in July 2023. Despite their separation, Mungai sought to bury her at their matrimonial home, as per her wishes, and secured court orders to do so. However, his challenge focused on the broader issue of Section 29(c)’s discriminatory impact, arguing that it unfairly disadvantages men in intestate succession.
The respondent, the Attorney General, opposed the petition, arguing that the issue fell under the Family Division’s jurisdiction, that the petitioner failed to petition Parliament for legislative reform as per Article 119, and that the provision was not discriminatory since dependency is a factual matter.
Key Findings of the Court
The High Court, presided over by Justice L.N. Mugambi, made the following critical findings:
- Jurisdiction and Constitutional Avoidance: The court rejected the respondent’s argument that the petition violated the doctrine of constitutional avoidance. The issue was not about estate distribution but the constitutionality of Section 29(c), a matter squarely within the High Court’s jurisdiction under Article 165(3)(d)(i) to determine whether any law is inconsistent with the Constitution.
- Petitioning Parliament: The court held that Article 119, which allows citizens to petition Parliament for legislative changes, does not preclude the court’s authority to assess the constitutionality of laws. The right to petition the court is a fundamental constitutional remedy, and the petitioner was not obligated to exhaust parliamentary avenues first.
- Unconstitutionality of Section 29(c): The court found that Section 29(c) discriminates against widowers by imposing a dependency requirement not applied to widows under Section 29(a). This differential treatment based on gender violates Article 27(4), which prohibits discrimination on grounds including sex, and Article 45(3), which mandates equal rights in marriage. The court declared Section 29(c) unconstitutional, null, and void for fostering discriminatory treatment in intestate succession.
- Relief Granted: The court issued a declaratory order that Section 29(c) is unconstitutional but declined to grant a mandatory injunction compelling the Attorney General to initiate legislative reforms, citing the separation of powers doctrine. The court noted that legislative authority rests with Parliament under Article 94 of the Constitution, and courts cannot direct Parliament to amend laws in a specific manner. No costs were awarded, as the case was deemed public interest litigation.
Implications for Succession Law and Gender Equality
The Mungai decision has profound implications for succession law, estate planning, and gender equality in Kenya:
1. Enhanced Gender Equality in Succession
The judgment eliminates a discriminatory barrier for widowers, ensuring equal treatment in intestate succession. By striking down Section 29(c), the court aligns the Law of Succession Act with constitutional principles of non-discrimination and equality. Widowers are no longer required to prove dependency to benefit from their late wife’s estate, mirroring the treatment of widows under Section 29(a).
2. Impact on Estate Planning
Individuals and families should review their estate plans to account for this judgment. The decision underscores the importance of drafting wills to clearly outline beneficiaries, as intestate succession laws may now treat spouses equally regardless of gender. Legal practitioners should advise clients to update or create wills to avoid disputes arising from outdated assumptions about dependency.
3. Precedent for Constitutional Challenges
The case reinforces the judiciary’s role as the ultimate arbiter of constitutional questions, even when alternative remedies like petitioning Parliament exist. It sets a precedent for challenging discriminatory provisions in other statutes, encouraging public interest litigation to advance constitutional rights.
4. Legislative Reform
While the court did not mandate legislative action, the declaration of Section 29(c)’s unconstitutionality signals the need for Parliament to amend the Law of Succession Act to ensure gender-neutral provisions. Legal practitioners and advocacy groups may push for broader reforms to align the Act, enacted in 1981, with the 2010 Constitution.
Conclusion
The Mungai v Attorney General decision is a pivotal step toward gender equality in Kenya’s succession laws, striking down a discriminatory provision that disadvantaged widowers. By declaring Section 29(c) unconstitutional, the High Court has reaffirmed the principles of equality and non-discrimination under the Constitution. Clients involved in estate planning or succession disputes should take proactive steps to align their strategies with this ruling and monitor future legislative developments.
For tailored advice on how this decision affects your estate planning or succession matters, please contact our Constitutional and Family Law team. We are ready to assist with will drafting, succession litigation, or advocacy for legal reforms.
Disclaimer: This client alert is for informational purposes only and does not constitute legal advice. Please consult qualified legal counsel for advice specific to your circumstances.
