Court rules second wife can inherit husband’s property despite invalid marriage

Nairobi, Kenya: The High Court of Kenya has ruled that a woman whose marriage was legally invalid because her husband was already in a subsisting monogamous marriage can nevertheless be recognised as a wife for purposes of inheritance under the country’s succession laws.

In a landmark judgment delivered in In re Estate of the Late Ndolo Kioko Musyimi (Deceased), Succession Cause No. E600 of 2022, the court held that Jane Jerry Kioko qualifies as a beneficiary of the deceased’s estate despite the legal invalidity of her marriage.

The ruling also recognised her two children with the deceased as lawful beneficiaries under Kenya’s Law of Succession Act.

The dispute arose after questions were raised over whether Jane Jerry Kioko could participate in administering and inheriting from the estate, given that the deceased’s first civil marriage had never been dissolved before he entered into a second marriage.

Court records showed that the deceased had undergone a customary marriage ceremony with Jane in Tanzania, paid dowry, later contracted a civil marriage with her, lived with her as husband and wife, had two children together and consistently introduced her publicly as his wife.

Although the court found that the second marriage was legally null and void because the first monogamous marriage remained in force, it ruled that the circumstances brought Jane within the protection of Section 3(5) of the Law of Succession Act.

The provision recognises certain spouses for inheritance purposes even where the marriage itself may not be legally valid.

In its ruling, the court held that Jane qualified as a wife within the meaning of the succession law and could therefore benefit from the deceased’s estate. It further found that her children with the deceased were entitled to recognition as beneficiaries.

Consequently, the court appointed Jane Jerry Kioko as one of the joint administrators of the estate alongside the other administrators.

However, the judge deferred the question of how the estate will ultimately be distributed to subsequent proceedings.

Significance of the ruling

Legal analysts say the decision reinforces the protective nature of Kenya’s succession laws by ensuring that dependants are not automatically excluded from inheritance merely because a marriage is later declared invalid.

The judgment underscores that succession disputes are determined not only by the validity of a marriage under family law but also by statutory provisions designed to protect spouses and children who may otherwise suffer hardship.

The ruling is expected to serve as an important precedent in future inheritance disputes involving multiple marriages and blended families.

Kenya’s Law of Succession Act, particularly Section 3(5), was enacted to protect women and children in situations where marriages may be declared invalid under marriage laws but where the parties lived together as husband and wife.

The provision has increasingly been relied upon by courts to prevent dependants from being unfairly disinherited after the death of a spouse. The judgment in In re Estate of the Late Ndolo Kioko Musyimi (Deceased) further clarifies the distinction between the legal validity of a marriage and entitlement to inherit under succession law.