A critique of the constitutionality of section 3(2) of the law of succession act of Kenya

Ochilo, Louisa Akoth
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Strathmore University
The Law of Succession Act in section 3 (2) states that references in this Act to "child" or "children" in relation to a female person include, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility. The Constitution of Kenya, 2010 in Article 27 states that every person is equal before the law and has the right to equal protection and equal benefit of the law. Equality includes the full and equal enjoyment of all rights and fundamental freedoms. Article 53(2) of the Constitution states that a child’s best interests are of paramount importance in every matter concerning the child. Section 3(2) of the Law of Succession Act seems to conflict with article 27 and article 53 (2) of the Constitution of Kenya 2010. The Succession Act differentiates between the definition of a child in relation to a man and to a woman. A child, in this case, is disinherited even though the woman may have recognized and accepted the child as their own and voluntarily assumed permanent parental responsibility. The court’s jurisprudence, in this case, states that the child is a stranger to the estate. This definition omits children who may be under the care of women but are not their biological children. Therefore, the best interests of a child are not considered while looking at the definition of a child as per the Act. In addition to that equality of men and women is brought into question before the law as the same benefit provided to men is not given to women. The law is meant to protect all parties equally. Furthermore, there is discrimination of children who are informally adopted by women. The children who are informally adopted by women should not be disinherited and the law should give equal benefit to all genders. This study will, therefore, look into the interpretation of the sections mentioned in addition to how it conflicts with the Constitution with the aim to prove that the section is inconsistent with the rights enshrined in the Constitution and to that extent void.
Submitted in partial fulfilment of the requirements of the Bachelor of Laws Degree, Strathmore University Law School