Some sections of the Law of Succession Act declared unconstitutional for being restrictive to the women and female children's right to inherit in equal measure and circumstances as their male counterparts.
The petitioner filed the instant petition and contended that various provisions to wit sections 32, 33, 35(1), 36(1) and 39(a) and (b) of the Law of Succession Act (the Act) had brought inequalities based on gender and violated the rights of women, girls and vulnerable members of the society by preventing them from enjoying the fruits borne by the progressive Constitution of Kenya, 2010 (Constitution). The inequalities had been brought about by the unequal treatment of women when compared to their male counterparts within the same provisions of the Act.
The petitioner sought to challenge the constitutionality of sections 32, 35(1)(b), 36(1)(b) and 39(1)(a) and (b) of the Act. The petitioner contended that the exceptions created by sections 32 and 33 of the Act were problematic since they denied the people of Kenya, especially women and the girl child of Kenya the right to property, food, shelter and the much-needed gender equality and even equal protection from adverse customary practices. The petitioner further contended that section 39 of the Act was discriminatory against women, in that it gave exclusive right, in intestacy to a father of a deceased who left no surviving spouse or children to inherit all the property of the deceased.
- Whether sections 35(1)(b), 36(1)(b) and 39(1)(a) and (b) of the Law of Succession Act were restrictive of the women and female child’s right to inherit in equal measure as their male counterparts and thus unconstitutional.
- Whether the doctrine of mootness and want of real dispute or controversy applied to public interest litigation under article 258(1) of the Constitution which gave every person a right to approach the court.
- Whether the High Court could compel the Attorney General to ensure that a legislation had been enacted.
Relevant provisions of the law
Law of Succession Act, Cap 160
Section 33 - Law applicable to excluded property
The law applicable to the distribution on intestacy of the categories of property specified in section 32 shall be the law or custom applicable to the deceased's community or tribe, as the case may be.
Section 35 - Where intestate has left one surviving spouse and child or children
(1) Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to-
(a) the personal and household effects of the deceased absolutely; and
(b) a life interest in the whole residue of the net intestate estate:
Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.
Section 36 - Where intestate has left one surviving spouse but no child or children
(1) Where the intestate has left one surviving spouse but no child or children, the surviving spouse shall be entitled out of the net intestate estate to-
(a) the personal and household effects of the deceased absolutely; and
(b) the first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater; and
(c) a life interest in the whole of the remainder:
Provided that if the surviving spouse is a widow, such life interest shall be determined upon her re-marriage to any person.
Section 39 - Where intestate has left no surviving spouse or children
(1) Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority-
(a) father; or if dead
(b) mother; or if dead
- Article 27 of the Constitution provided for equality and freedom from discrimination. Article 45 of the Constitution provided for equal rights to the parties to a marriage. A petitioner in a constitutional petition was required to not only cite the provisions of the Constitution which had been violated, but the manner in which they had been violated. In demonstrating the manner in which there had been a violation of their rights or of the Constitution, the petitioner should present before the court evidence or a factual basis on which the court could make a determination whether or not there had been a violation.
- The court should not deal with hypothetical and academic issues. The jurisdiction to interpret the Constitution conferred under article 165(3)(d) of the Constitution did not exist in a vacuum, it was not exercised independently in the absence of a real dispute. It was exercised in the context of a dispute or controversy. The instant dispute fell squarely within the province of article 258 of the Constitution.
- The doctrine of mootness did not apply in the instant application, the court had jurisdiction to consider and determine the challenge on the constitutionality of the impugned sections of the Law of Succession Act against the backdrop of the constitutional protection against alleged discrimination engendered by the impugned statutory provisions. The rule on mootness and want of real dispute or controversy could apply with special force in cases of private dispute for enforcement of rights but not in public interest litigation under article 258(1) of the Constitution, which gave every person a right to approach the court.
- The text of sections 35(1)(b), 36(1)(b) and 39(1)(a) and (b) of the Act were restrictive of the women and female child’s right to inherit in equal measure and circumstances as the men and male child. Sections 35(1)(b) and 36(1)(b) restricted a widow’s life interest in the property of her deceased spouse when she remarried unlike the widower who remarried. Section 39(1)(a) and (b) gave priority to the father ahead of mother over the property of a child who died intestate, unmarried and childless. Article 27(4) of the Constitution prohibited discrimination of the grounds of sex and marital status among other grounds. The differential treatment of the female as against their male counterparts was indefensible, and the Act which predated the Constitution, had no explanation for the latent discrimination and restriction. Article 45(3) of the Constitution recognised the equality of men and women in marriage set up.
- The power to make laws including amendment lay with Parliament under article 109(1) of the Constitution. The role of the 1st respondent (Attorney General) was defined in article 156(1) and (4) of the Constitution and, as the principal legal adviser to the Government was limited in legislative matters. It would be wrong to require the Attorney General to take steps and report on progress towards enactment or amendment of law a process he had little control over. The 2nd respondent, Speaker of the National Assembly, presided over the National Assembly under article 106 of the Constitution but he did not initiate Bills and he had no vote.
- The petitioner could exercise his right under article 119 of the Constitution in terms that every person had a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal any legislation. The court could not compel promulgation of a law or an amendment. The court had to defer to Parliament on legislative matters, and there was no basis for compelling the Attorney General to ensure legislation was enacted. There was obligation as there existed in some articles of the Constitution requiring the enactment of particular laws.
- There was no evidence of how the impugned provisions had discriminated against the persons, of other tribes, allegedly living in the gazetted areas. The court did not find that evidence had been adduced as to discrimination of women under the customs and practices of the peoples in the areas set out in section 33 of the Law of Succession Act with regard to the inheritance matters relating to the property set out in section 32 to warrant any intervention by the court.
- The interpretation of the sections 35, 36 and 39 of the Law of Succession Act had to be interpreted in a manner that gave effect to the equality of women and men with regard to the protections and benefits accruing under sections 35, 36 and 39. Indeed, clause 7(1) of the transitional and consequential clauses under article 262 of the Constitution provided for such adaptation.