By Gathoni Kihumba
What happens when your husband dies and another woman claims to be his second wife yet you were in a monogamous marriage? An important decision comes from the bench at an opportune time surrounding the buzz of South African hit series “The Polygamist” on Netflix, based on Sue Nyathi’s novel, that thematically highlights a situation well known in African homes; a second wife. Polygamy and succession in Kenya have always been points of serious discussion particularly surrounding the contentious provision of section 3(5) of the Law of Succession Act with reference to second wives. In the decision delivered on the 2nd of July 2026, key insights on the position of a second wife in succession can be made.
Succession caused E600 of 2022; In the Matter of the Estate of the late NKM
(Names have been anonymized for the privacy of the parties)
KM, the deceased in this matter passed away in 2021 and the Petitioners apply for letters of administration on the grounds that they are his children. KM was married to the Applicants mother LWM under the tenets of the 1987 Marriage Act in an African Christian Marriage, and subsequently a decree of divorce ended their union in March 2020. The deceased also married one JJK, the objector to this application, under Hehe Customary law in early 2015, and thereafter under Tanzanian civil law in the same year. The objector was under the impression that he had ended the marriage with LWM as he had intimated that to her before proceeding with the marriage. The witnesses called upon by the objector testified to the validity of the marriage between the two, and the objector moved the court to appoint her as an administrator of his estate. The Applicant’s mother, however, contends that the marriage between KM and JJK is illegal, as she was still legally married to him under civil law when he entered into the union with JJK. JJK contends that she is legally his wife, which raises the question of the validity of two wives under marriages civil and their status in succession.
The late KM’s journey began with a registered civil, monogamous union that later stood at the center of the succession dispute.
Kenyan law and practice have recognized that polygamy is allowed, only in instances of customary and Islamic marriages, under the Marriage Act. The existence of two wives under civil marriages is by law an illegality and is classified as bigamy.
By the time the marriage between KM and JJK was entering into force, he was already in a civil monogamous marriage, therefore the union between the two can be construed as null and void in matrimonial proceedings. The Applicant’s main argument lies here. The Objector submits that despite the illegality of the marriage, she remains a wife for succession purposes as espoused in section 3(5) and the court’s novel determination focuses on the interpretation of the same.
Section 3(5) of the Law of Succession Act provides 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.”
The court aptly notes that there was a valid customary marriage followed by a civil marriage to the objector and legally speaking with the subsistence of the first marriage, this marriage is null and void. However, the court notes that the parliamentary construction of the Succession Act differs with the Marriage Act in the extent of nullifying the second marriage where a monogamous union exists.
Unlike the Marriage Act, which explicitly bars the existence of another marriage in a monogamous marriage, the Succession Act recognizes customary marriage. In this case, to the extent of choosing an administrator, the court sees it plausible to admit this objection, as the Act recognizes this, and the deceased had also introduced to all and sundry, including LMW, the objector as his wife.
The court recognizes that the question of matrimonial property remains unanswered and introducing it now would be premature but affirms the objection by JJK and appoints her in conjunction with the Applicants as Administrator of the deceased’s estate.
What does this imply?
For the “Jonasis”, the polygamists;
- Even when a marriage is entered into ‘illegally’ i.e. acquiring a second wife through customary marriage without ending the first marriage if it was a civil marriage, the second marriage is ILLEGAL. However, your second wife has rights under section 3(5) Succession Act to succession matters when you die intestate.
- Write a will and ensure that you have included all your beneficiaries, dependents, and property in the will and how it should be distributed for the avoidance of doubt when you die.
For the “Joyces”, the first wives under civil marriage
- Your husband’s second wife under customary law (ruracios, nyombos) can involve herself in succession matters when your husband dies
- Matrimonial property operates outside the provisions of section 3(5), so far. No decision has been made in the involvement of the second wife in the property distribution of matrimonial property
For the “Matipas and Essies”, second wives under customary marriage,
- You have a legal insulation of your marriage presumed in succession under Section 3(5), for you and your children
- Recognition, testimonial evidence, and any other evidence that can be used to construe a valid customary marriage is important. Payment of dowry, testimonial evidence that you indeed underwent the customary practices, recognition by introduction and quiet enjoyment of second marriage, aid in proving the validity of the marriage for succession only.
- If he was married to a first wife through civil marriage, in a church or the Attorney General Office or any other CIVIL marriage recognized in law, your status under the Marriage Act CANNOT be recognized as legal. This decision only deals with succession on a limited scope, not marriage proceedings. Unless he validly divorces his civil wife through the issue of a decree dissolving the marriage, then he is still legally married to the first wife, and she alone can be recognized as his lawful wife.
For the children of both wives, the” Menzis”, the “Sarahs”, the “Mpumes”
- In succession matters, and in matters surrounding children and parental responsibility, the best interest of the child prevails.
- All children are entitled to recognition in the Succession Act, regardless of the marital status of their mothers, and are entitled to be treated as such in succession matters.