The High Court has ruled that a woman whose customary marriage to a deceased man was legally invalid because he was still in a monogamous marriage is nevertheless entitled to inherit from his estate as his wife under Kenya’s Law of Succession Act.
In a judgment delivered on July 2, Justice H.K. Chemitei found that Jane Jerry Kioko qualifies as a wife of the late Ndolo Kioko Musyimi for succession purposes. The court also appointed her as a joint administrator of the deceased’s estate alongside his children.
The decision was based on Section 3(5) of the Law of Succession Act, a provision designed to protect women and children who enter customary marriages with men who are already in existing monogamous unions, even where such marriages would otherwise be considered legally void.
Dispute Over the Estate
The succession dispute arose after the deceased’s children petitioned the court for letters of administration following Ndolo Kioko Musyimi’s death on December 30, 2021, listing themselves as the beneficiaries of his estate.
Jane Jerry Kioko objected to the petition, arguing that she was the deceased’s wife and that they had two children together.
Court proceedings revealed that the deceased had married his first wife, Loise Wambui Muigai, in 1987 under a monogamous marriage. Although divorce proceedings had reportedly been initiated, the marriage had not been legally dissolved before he married Jane under Hehe customary law in Tanzania in March 2015. The couple later formalised their relationship through a civil ceremony in June 2015.
Jane told the court that the deceased had assured her he had already divorced his first wife before they got married.
Court Finds Marriage Invalid But Protects Widow
Evidence presented before the court showed that dowry was paid, customary marriage rites were conducted, and the deceased openly introduced Jane as his wife.
Witnesses also testified that Jane cared for the deceased during his final illness and was recognised as his widow during his funeral.
The first wife opposed Jane’s inclusion as an administrator of the estate, maintaining that the second marriage was invalid because her own marriage to the deceased remained legally in force. She further argued that much of the estate consisted of matrimonial property acquired during their marriage.
Justice Chemitei agreed that the second marriage was legally invalid and could technically amount to bigamy. However, he ruled that Parliament intentionally enacted Section 3(5) of the Law of Succession Act to protect women in Jane’s circumstances.
According to the judge, the deceased had lived with Jane as husband and wife, publicly acknowledged her as his spouse, and fathered two children with her. These factors, the court held, were sufficient for her to qualify as a wife for purposes of succession.
Property Distribution to Be Determined Later
The judge clarified that disputes over which assets form part of the deceased’s estate, and whether certain properties should instead be treated as matrimonial property belonging to the first marriage, will be determined during the distribution phase of the succession proceedings.
The High Court allowed Jane’s objection and appointed her as a joint administrator of the estate together with the existing administrators.
The administrators have been directed to apply for confirmation of the grant within 45 days, while the court ordered that the costs of the case be in the cause.