Kenyan Law of Succession Act Inadequacy exposed!

The proposed amendments may help -
A research report by Federation of Women Lawyers (FIDA) in Kenya in partnership with United States’ Georgetown University Law Centre entitled “Empowering Women with rights to Inheritance – A Report on Amendments to The Law of Succession Act Necessary to Ensure Women’s Human Rights” has revealed that women in Kenya who make 70 percent of the population own only one percent (1%) of the land and control very little of the income produced by their labour.

The research established that as its central finding that the women of Kenya are some of the most responsible, hard-working, intelligent, creative and productive members of Kenyan society. The women of Kenya do the majority of the agricultural labor. They take primary responsibility for the family, for the maintenance of the family home, and for the raising and educating of children.

Women in Kenya play an important and an increasingly direct role in the Kenyan economy. They are starting businesses, investing in property, starting schools, investing in their education and that of their children, working to improve the environment, and working on public health projects. In the words of journalist Mildred Ngesa, in Kenya,
Women carry the whole world.”

However, unfortunately, another central finding according to the research report is that women in Kenya continue to face enormous obstacles to achieving equality. According to Lily Murei of the Kenya Land Alliance:

“[T]he majority of the women are the ones who actually provide either in terms of labour, or livestock herding. It’s the women that provide the labour; but to a larger extent, they don’t benefit from anything accruing from the land.”

The general counsel of a major bank in East Africa added:
Women do all the backbreaking work but it is the men who get the funds from the cash crops.”

This inequality is perpetuated by the continued widespread discrimination against women in the inheritance of property. In practice, many women are unable to inherit property from their spouses, fathers, and other relatives. According to Irene Oloo of the League of Kenya Woman Voters:

If my husband died today … I would be given a piece of land to bury my husband and that would be the only land I could use…. The only thing that I am entitled to is the grave.”

The Reverend Judy Mbugua said:
Women are not allowed to inherit anything when their husbands die or even when their parents die.”

This inability to inherit property is the result of several important deficiencies in the Law of Succession Act, as well as the continuing use of African custom to determine succession matters.

Some of the deficiencies are that the Act not adequately provide for widows in both monogamous and polygamous marriages. The Act also unfairly gives priority to fathers over mothers in inheritance. Further than that the Act does not give adequate protection to children born out of wedlock.

The report concludes that Kenyan women are harmed by discriminatory inheritance laws, customs, and practices.

The proposed amendments to the law of succession, however, reflect a potential light at the end of the tunnel for Kenyan women according to the report. For instance, the revised section 35 (1) of the Law of Succession Act gives the surviving spouse an absolute interest in the entire matrimonial home, personal and household effects, and one third of the residue estate, rather than mere life interest in the home and an absolute interest only in the personal and household effects. Further in the revised section 35(2) of the Act it is provided that children will inherit immediately in equal shares to make sure that they are afforded adequate care and protection.

It has been stated in the report that the proposed Amendments will go a long way to alleviate the harms done to women under existing law and will bring Kenya into compliance with its obligations under international law.

Recognising that the area in which most customary laws disadvantage women is in respect of property rights and inheritance and that under the customary law of most ethnic groups in Kenya, a woman cannot inherit land and must live on the land as a guest of male relatives by blood or marriage, the government of Kenya has promised both its citizens and the larger international community that the laws of Kenya will reflect recognized principles of equality and human rights.

Comments

  1. Patrick chomba says:

    My mum got married to my second father after my biological father died and left a fortune will the property my mum owned before marrying the second husband be split if in case of a divorce ? please advice.

  2. peter mutiso says:

    My sister in-law lost her husband. He left her with 2 children from a different mother now his relatives want her split her property to them . What should she do?

  3. My polygamous grandfather died and left the land interstate, the sons are now divided right in the middle with one faction wants it divided among the wife’s and another wants it divided among the sons, kindly help me understand the law on succession Act chapter 160, section 40 (1) and the luo customery law on land inheritance so that I can advise them accordingly to avoid the boiling spill over, pls pls pls

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