The proposed amendments to section 29 of the LSA amplify the principle of gender equality, noting that the current Act contains elements of discriminatory treatment. For instance under the LSA, the husband who claims an interest in the wife’s estate is required to prove dependency yet the same is not required from the wife.
Section 29 (c) of the LSA provides that “where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.” This means that for widowers to be entitled to their wives estate, they have to first prove to the courts that they were being maintained by the deceased wife immediately prior her death.
In contrast, the category of wives and former wives bear no such burden with the courts automatically acknowledging their claims to their husbands’ estate. Currently, the only qualification for a former wife is to prove that she did not receive any of the deceased’s assets during the dissolution of the marriage. However, this will change when the President assents to the Bill because the Bill seeks to eliminate former wife’s automatic rights in the former deceased’s estate by providing that she first needs to satisfy the courts that she was being maintained by the deceased prior to his death.
This proposed amendment to section 29 of the LSA will eliminate the existing gender bias against widows that asserts men as the providers of households thereby making it difficult for widowers to access their wives estates in succession matters.
The interesting bit however is that though the proposed amendments seek to realize gender equality, section 31 of the LSA also acknowledges that the application of customary law in Kenya has not been deleted. This is still a major setback because most customary norms favour men as opposed to women especially with regard to whether married women can inherit or not.