Clash of the Titans – Is there a Need to Harmonise the Family Law Regime in Kenya?


The High Court decision in, Succession Cause No. 875 of 2012 Re Estate of Francis Andachila Luta (Deceased), holding that a daughter-in-law is not entitled to directly inherit from their Deceased parent-in-law’s Estate (the Case) brings into sharp focus the status of surviving spouses under the Kenyan Constitution 2010 (Constitution), the Marriage Act No. 4 of 2014 (Marriage Act) and the Law of Succession Act Cap. 160 (LSA).

The Case highlights that judicial opinion is divided on the status of whether a child-in-law is deemed a direct beneficiary of their deceased parent-in-law’s Estate as there are several cases with contradictory positions. For example, in Estate of the Late M’thigai Muchangi (Deceased) [2020] eKLR the High Court held that “a daughter-in-law is a beneficiary of the estate of the deceased father-in-law in a situation where she has survived her deceased husband who is a child of the deceased (father-in-law) to whose estate the matter relates.”

The Case is, however, not the only example where the rights of a spouse gained under the Marriage Act appear to be eroded by the LSA upon the death of their spouse.

The Law

Article 45 (3) of the Constitution and Section 3 (2) of the Marriage Act provide that parties to a marriage have equal rights and obligations at the time of marriage, during the marriage and at the time of dissolution. Under Section 16 of the Marriage Act, the death of a spouse is one way a marriage can be terminated.

There have been attempts to maintain a strict dichotomy between the Marriage Act and the LSA, with several decisions emphasising that certain provisions of the Marriage Act do not apply to the LSA. This may however neither be a practical nor a desirable approach as on the strength of this position, spouses have lost the rights they gained under the Marriage Act upon the death of their spouse. This appears prejudicial, noting that once rights accrue the Courts should to the largest extent possible uphold them in a consistent manner.

For example, Section 3 (5) of the LSA confers a woman who has entered a polygamous union with a man who has no capacity to marry her by dint of already being in a monogamous marriage, being either a Christian, Hindu or Civil marriage as defined under Section 6 (2) of the Marriage Act (an illegitimate Union), the same status as the woman in the monogamous union under the Marriage Act upon the death of their common male partner.

In essence, a woman in an Irregular Union who would not have an enforceable claim under marriage during the lifetime of her male partner stands to gain legal rights from her male partner’s death at the expense of the legitimate wife of the man married under a monogamous union under the Marriage Act. This state of affairs appears inconsistent with Article 45 (1) of the Constitution which provides that the family which includes a marriage, shall enjoy the recognition and protection of the State. The LSA appears to grant persons in an Irregular Union the recognition and protection of the State as opposed to bona fide spouses under the Marriage Act.


It is important that social dynamics are considered when interpreting the status of spouses under the LSA. Does it serve the interests of society for persons in Irregular Unions to blindside persons who are in legitimate unions under the Marriage Act and cause them further pain and anguish on matters of inheritance when they did not have such rights during the lifetime of their deceased partner? It is also worth appreciating that a surviving spouse doesn’t automatically stop being a family member simply because of the death of their spouse.

It is, therefore, necessary for the Constitution, the Marriage Act and the LSA to be interpreted holistically, progressively, and purposively to promote as opposed to detracting from a surviving spouse’s rights, particularly on matters relating to locus on inheritance from a parent-in-law’s estate and the locus to inherit on the strength of an Irregular Union.

In case of any queries, please contact Pearlyne Omamo, Managing Partner:
Contributor: Rutvi Shah, Associate:

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