Inequality In Practice: An Analysis Of The Inheritance Rights Foregone By Widows In Kenya Upon Remarriage

Abstract

Despite the protection of all persons in the Kenyan bill of rights irrespective of their status and background there seems to be an underlying differentiation of widows’ rights to remarry as compared to that of widowers and this has implications on their rights to inheritance. Marriage is a fundamental human right that has existed since time immemorial alongside with the right to inheritance. As such, these are rights that no human being deserves to be denied. Sections 35(1)(5) and 36(1) of The Law of Succession Act Chapter 160 Laws of Kenya which indirectly removes widows freedom of choice on questions of remarriage by requiring them to choose between a subsequent marriage or keeping property inherited from a deceased husband, removes the right to enjoyment of that fundamental right to widows to remarry and not widowers and this is arguably in direct contravention of Article 45(2) of the Constitution which provides that “Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties,” bringing about inequality and thus should be held as null and void to the extent of the inconsistency.