NAIROBI, Kenya, Jul 9 – The High Court has ruled that a woman whose marriage to a deceased man was legally invalid because he was still in an existing monogamous union is nevertheless entitled to inherit from his estate under Kenya’s succession laws.
In a landmark judgment delivered by Justice H.K. Chemitei held that Jane Jerry Kioko qualifies as a wife of the late Ndolo Kioko Musyimi for purposes of inheritance and succession.
The court consequently appointed her as a joint administrator of the deceased’s estate alongside his children.
The decision provides fresh judicial interpretation of Section 3(5) of the Law of Succession Act, which safeguards the rights of women and children arising from unions that may not meet the legal requirements of marriage but existed in practice as family relationships.
The dispute arose after the deceased’s children petitioned the court for letters of administration following his death on December 30, 2021, listing themselves as the beneficiaries of the estate.
However, Jane challenged the application, maintaining that she had been the deceased’s wife and that the couple had two children together.
Court records showed that the deceased had married his first wife, Loise Wambui Muigai, in 1987 under a monogamous marriage.
Although divorce proceedings had reportedly commenced, the marriage had not been legally dissolved when the deceased entered into a customary marriage with Jane in Tanzania in March 2015 under Hehe customary law before later formalising the relationship through a civil marriage in June of the same year.
Jane told the court that she believed the deceased had already finalized his divorce before they married.
Witnesses testified that customary marriage rites had been performed, dowry paid and that the deceased openly recognised and introduced Jane as his wife to family members and friends.
Evidence was also presented showing that she cared for him during his final illness and was acknowledged as his spouse during funeral arrangements and burial ceremonies.
The deceased’s first wife opposed Jane’s inclusion in the administration of the estate, arguing that the second marriage was invalid because her own marriage remained legally in force at the time.
She further contended that much of the property in question had been acquired during their marriage and constituted matrimonial property.
While Justice Chemitei agreed that the second marriage was legally void due to the existence of the earlier monogamous union, he held that succession law intentionally protects spouses and children from such relationships from being disinherited.
The court found that the deceased had cohabited with Jane as husband and wife, publicly acknowledged her as his spouse and fathered children with her, bringing her within the definition of a wife under the succession framework.
The judge noted that disputes regarding ownership of specific assets and whether some properties qualify as matrimonial property would be addressed at a later stage during the distribution of the estate.
The court ultimately allowed Jane’s objection, appointed her as a co-administrator of the estate and directed all administrators to move the succession process forward by applying for confirmation of the grant within 45 days.
Costs of the application were ordered to abide the outcome of the succession proceedings.