Section 3(5) of the Law of Succession act Cap 160 Laws of Kenya provides that

(5) 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

Before the amendment of the Act to introduce the above provision, the court was met by quagmire in deciding the right of inheritance of women who are in polygamous marriages. Some of the decisions that prompted the courts to look into this issue are enumerated below:-

RE RUENJI’S ESTATE [1977]KLR21 and RE OGOLA’S ESTATE [1978]KLR18 where the courts based their reliance on Section 37 of the Marriage Act which states that:-

Any person who is married under this Act…..shall be incapable of contracting a valid marriage under any native law or custom

The import and purport of section 37 was that

A man married under statute is statute-barred from contracting other marriages during the pendency of the statutory marriage, and any marriages so contracted are null and void, and the woman so married are not entitled, together with their children, to inherit on the intestacy of the deceased man.

In the case of HOTENSIA WANJIKU YAWE V. PUBLIC TRUSTEE the Court of Appeal for Eastern Africa (as it then was) recognized and approved the principle of presumption of marriage, in a situation where the deceased had declared to another that the appellant, Yawe was his wife by general repute… the court held that long cohabitation as man and wife gives rise to a presumption of marriage in favour of the appellant. Only cogent evidence can rebut such presumption’ 

This decision was upheld in the case of MARY NJOKI V. JOHN KINYAJUI MUTHERU AND OTHERS CIVIL APPEAL NO. 71 OF 1984 in which the court held that before a presumption of marriage can arise, a party needs to establish long cohabitation and acts of general repute… there has to be  evidence that the long cohabitation is not a mere friendship between a man and a woman, that she is not a concubine but that it is safe to presume  there is a marriage’

The Law of Succession Act only became operational in 1981 and in the same year 1981 parliament added paragraph (5) to section 3 of the law of Succession Act. This was intended to reverse and/or cure the mischief and/or the position taken by the courts in the cases of RE RUENJI’S ESTATE (1977) AND RE OGOLA’S ESTATE (1978).  

This section was first relied on by the courts in deciding the case  of IN THE MATTER OF THE ESTATE OF REUBEN NZIOKA MUTUA(DECEASED) in which Aluoch J. held thati

      section 3(5) of the Law of Succession Act caters for women under customary by men who had   previously or subsequently contracted statutory marriages, and who have been abandoned or neglected, and such women are entitled to be provided for of the estate of the deceased.

In the case of in the MATTER OF THE ESTATE OF REUBEN NZIOKA MUTUA(DECEASED) the petitioner(Josephine) was married to the deceased under the Kamba customary law which recognizes polygamy and they had three children. Looking at this case vis-a-vis the case of HOTENSIA NYOKABI YAWE and the case of MARY NJOKI V JOHN KINYANJUI MUTHERU AND OTHERS (1984) the courts found that long cohabitation and general repute would give rise to a presumption of marriage. These elements could be cogently adduced between Reuben Nzioka (deceased) and Josephine. However, they were ignored by the learned judge and evidence of customary marriage was ignored and nulled by section 37 of the Marriage Act.

In the case of Irene Njeri Macharia v. Margaret Wairimu Njomo and another Nairobi Court of Appeal Number 139 of 1994 Justices Omolo, Tunoi and Bosie overturned the ruling In the Matter of Reuben Nzioka Mutua (deceased) and held that section 3(5)of the Law of succession Act is meant to protect women who marry men under customary law, who are already married to or who subsequently marry another women under statute. The woman married under customary law is regarded as a wife for succession purposes, notwithstanding that by virtue of section 37 of the Marriage Act the man had no capacity to marry her.

The judges were keen on their ruling lest they validate bigamy hence section 3(5) recognizes such marriage …for succession purposes. This is buttressed by the last leg of section 3(5) …or subsequent monogamous marriage to another woman nevertheless a wife for the purpose of the Act, and in particular sections 29 and 40 thereof and her children within the meaning of this Act

According to Justice Aluoch in the Matter of the Estate of Reuben Nzioka Josephine was not a wife within the meaning of section 3(5) of the Act. Only the children (who were minor applicants) were the deceased children under section 3 of the Succession Act and section 29 of the Act . Therefore, Josephine could sneak in to benefit from the inheritance under Section 3 of the Act as the mother of the minors.

Justice Aluoch leaned mostly on the so called operative word rather than reading the whole Section 3(5) in toto to construe the mischief. Nevertheless, her ruling was overturned by the Court of appeal in another similar case and therefore binding. Section 3(5) should not be read in isolation with section 29 and section 40 of the succession Act.

29. 29. Meaning of dependant

For the purposes of this Part, "dependant" means— (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; (b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and CAP. 160 Law of Succession [Rev. 2012] [Issue 1] L13-16 (c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death

40. Where intestate was polygamous (1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children. (2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.

Judicial rulings have expanded definition of wife under Sec 3(5) to include common law wives.

Long cohabitation between man and a woman can give rise to presumption of a marriage, which presumption can only be rebutted or displaced by cogent evidence to the contrary. Facts that are taken into account are not exhaustive but include:-

• Naming children after the man
• Insurance policies taken by man over wife and children
• Holding out and financial arrangement’s etc.

So such a woman married by a man who had previously or subsequently contracted a monogamous marriage with another woman that woman is a wife for the purposes of The Law of Succession Act and is a dependant as per Section 29 and 40 of the Law of Succession Act. Thus section 3(5) should be read together with Section 29 and 40 of the Act. That woman should prove the common law presumption of marriage for her to benefit from a deceased’s estate.