Written by:
Nyboma Ian and Evelyn Weru

[Kiogora Mutai & Co. Advocates has diversified its practice into a full service law firm. We have the capacity to conduct succession cases. Do not hesitate to contact us.]

Introduction

On 18/11/2021, President Kenyatta assented to the Law of Succession (Amendment) Bill of 2019. A spontaneous conversation began on social media.

The amendment does the following:

• It inserts the definition of a spouse to mean a wife, wives, or husband recognized under the Marriage Act. The Marriage Act states that every marriage must be registered.
• It expunges former wives from the list of dependants.
• It incorporates gender balance by removing obstacles from inheritance for male spouses.
• It expunges the condition of maintenance to allow children out of wedlock and neglected children to inherit.
• It strengthens the inheritance position of the extended family.

This article considers the place of ‘sidechicks’ (also called mpango wa kando) in inheritance cases.

Mistaken view

The current general public view is that a woman in an unregistered marriage cannot inherit the property of her husband.

While many married women have their unions registered, others have not. Also, many men have contracted more than one marriage and registered only one. First wives to such men now seek assurance in the new definition above. They assume that the other woman cannot inherit the property of their deceased husbands. It is our considered view that such is not the case.

Case studies

Consider the following illustrations to understand the legal position on this matter.

Case study I:

Kitiavi registered his first marriage with Karimi at the AG’s chambers in 2009. Kitiavi and Karimi married under civil law. Civil marriages are monogamous.

In 2018, Kitiavi married Anyango in the presence of community elders after paying dowry per the standards of their custom. But Kitiavi and Anyango did not register their marriage.

Kitiavi recently died- leaving behind Anyango, Kirimi, and their children. Anyango wants a share of the inheritance. Karimi claims that Anyango is not a wife. Karimi believes that Anyango was merely a sidechick.

Case study II:

John and Jane registered a Christian marriage in 2004. John wants to marry Wangoi under Kikuyu Customary Law, in 2021. John and Wangoi have gone to register their marriage.

Case study III:

Omar and Ilan registered their Islamic marriage in 2014. Omar wants to marry Maimuna under Islam. Omar wants to know if his second marriage will be valid.

Case study IV:

Okutoi and Tamima registered their customary marriage. Okutoi wants to marry Taabu as a second wife. But Taabu insists that they should register a civil marriage. Okutoi wants to know how he can marry Taabu and still keep Tamima.

Understanding the Marriage Act

All marriages must be registered

It is wise to register a marriage. According to the Amendment, section 3 of the Law of Succession Act only considers a person as a spouse if their marriage is registered.

Polygamy v Monogamy

The systems of marriage are listed at section 6 of the Marriage Act.

Christian, Hindu, and civil marriages are monogamous. For example, the marriages between Kitiavi and Karimi of Case I; and John and Jane of Case II are monogamous. Karimi and Jane should not expect their husbands to marry again.

Marriages under African Customary Law and Islam are potentially polygamous. Registering a customary or Islamic marriage does not prevent a subsequent marriage or its registration. As such, Ilan of Case III should expect that Omar might marry again. The same applies to Tamima of Case IV.

Subsisting marriages

According to section 9 of the Marriage Act, a person in a monogamous cannot enter a polygamous union. Section 9 prohibits the marriage between Kitiavi and Anyango. This is because Kitiavi and Kirimi had registered a civil monogamous marriage earlier.

The same apples to polygamous spouses who want to enter a monogamous marriage. Omar of case III can validly marry and register an Islamic marriage with Taabu.

But a person in a polygamous marriage can enter a polygamous marriage under a different system. Okutoi of case IV cannot register a civil or other monogamous marriage with Taabu. Such marriage will not be valid. To keep both spouses, Omar must only marry Taabu within Islamic or customary law.

Conversion of marriages

Anyone in a monogamous marriage must convert it before they enter a polygamous union. Section 8 of the Marriage Act allows couples to convert their marriage.

In light of case II, John must convert his Christian marriage with Jane to a polygamous marriage before he can marry Wangoi. Even so, John must obtain the consent of Jane. Neither John nor Jane can register another marriage under Islamic or customary law without converting their first marriage. The same would apply had John and Jane registered a Christian or Hindu marriage.

Insights in interpreting the amendments

We present to you the following insights:

• The new law only amends sections 3 and 29 of the Law of Succession Act.
• The amendments do not affect section 3(5).
• Parliament left section 3(5) untouched.

The lucky woman

The Amendment does not affect section 3(5) of the Law of Succession Act. This section is about a wife in a polygamous marriage whose marriage is not registered because her husband is in a registered monogamous marriage.

The budding misinterpretation is that any woman whose marriage is not registered cannot be considered to be a wife.

Section 3(5) states as follows:

Notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular sections 29 and 40 thereof, and her children are accordingly children within the meaning of this Act.

Section 40 of the Law of Succession Act outlines the inheritance method for polygamous families while section 29 lists dependants.

Look at the case IV for context. The following issues arise:

Issue 1: Whether Anyango is a spouse.

Anyone reading and stopping at section 3 of the Law of Succession Act will dismiss Anyango because her marriage to Kitiavi was not registered under section 6 of the Marriage Act.

Issue 2: Whether Anyango is Kitiavi’s wife.

Because Kitiavi married Karimi under civil law, he cannot legally marry Anyango. As such, Anyango is not a wife for the purposes of the Marriage Act.

However, Anyango is a wife for the purposes of inheritance. Section 3(5) of the Law of Succession Act exempts Anyango from the Marriage Act prohibition explained above as far as inheritance is concerned.

Issue 3: Whether Anyango can inherit as Kitiavi’s wife.

Although the amendment limits dependants to the list at section 29, it does not affect Anyango. Section 3(5) allows Anyango to inherit per the list at section 29 and the criterion at section 40.

Consequently, section 3(5) places Anyango on the section 29 list. It guarantees her of the treatment of section 40.

Conclusion

Based on the above, Anyango is not a mpango wa kando. Anyango and other women like her may continue to inherit property even if they do not start or complete the registration process.