The ruling by Justice Lucy Waithaka of the High Court in Nyeri, allowing a married woman to inherit property from her parents, has touched off a fierce conflict between customs and the law.
Traditionalists believe it infringes on the convention that a woman once married belongs to her husband, and cannot claim property from her parents. But gender activists say this belief treats women as ‘second-class beings’ who are easily disinherited even when unmarried.
Customary practices grant women only secondary rights to land and property through male relatives.
That’s why, despite the fact that about 32 per cent of households in Kenya is headed by women, only 1 per cent hold land titles in their own names and only 5 per cent own land jointly with husbands or male family members.
Although the law giving women, married on not, equal rights to parents’ property have been in existence since 1981, the reality is that many women still have to fight for land rights.
The Act says that if a dependant is disfavoured by the deceased in disposition of his property, and a court finds that this affected the dependant, it may annul the disposition and order reasonable provisions be made to the dependant as it shall find necessary.
“In making provision for a dependant, the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions as it thinks fit,” the Act reads in part.
The dependants listed in the Act include a man’s 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.
The Act also lists a man’s parents, stepparents, grandparents, grandchildren, stepchildren and any children whom he takes into his family as his own.
Brothers and sisters, and half-brothers and half-sisters, who depends on a man immediately prior to his death are also listed as dependants who have a right to inherit his property.
The Act excludes communities in 12 counties from compliance, including West Pokot, Wajir, Samburu, Lamu and Turkana.
Other counties excluded from the Succession Act of 1981 are Garissa, Isiolo, Kajiado, Marsabit, Tana River, Mandera and Narok.
CASE IN QUESTION
Mary Wathuta from Nyeri had petitioned the court to find her as a dependant of her deceased father, and, therefore, entitled to a share of his property.
She had been denied a share of her father’s property on account of having been married. And on Wednesday, Waithaka ruled in her favour.
“This court finds that the married daughters are dependants and beneficiaries of the deceased and qualify to inherit and are also entitled to benefit from the deceased’s estate,” Waithaka ruled.
But Maendeleo ya Wanaume chairman Nderitu Njoka says Waithaka erred in “generalising a single family’s matter to include more than 20 million Kenyan families that were never enjoined in the suit before her”. Njoka will appeal the ruling.
He faulted Waithaka for failing to point out serious anomalies in the law that disregard married women’s right to co-own family property with their husbands.
Njoka said the law is only talking about a man’s property, although the family property jointly belongs to man and his wife, equally, and Waithaka ought to have raised this. He says Waithaka gave power to a law that gives a man absolute ownership to family property, forgetting women in such families.
“The judiciary is fast turning into a theatre of activism and toxic feminism, and this is what Waithaka is advancing. This ruling will increase insecurity at homes. Homicides will rise because of inheritance disputes and more couples, brothers and sisters and other relatives are going to kill each other over family properties,” Njoka said.
“The ruling talked about daughters inheriting their fathers’ property, instead of parents’ property. That means my property is mine and my wife owns nothing.”
Kikuyu Council of Elders chairman Wachira wa Kiago agreed with him. Kiago says the Succession Act must not supersede traditions. He said traditionally, only an unmarried woman should inherit, and it should be known that she is receiving the inheritance from her parents.
EQUALITY AT STAKE
But Fida chairperson Josephine Mongare defended Waithaka’s ruling and the succession laws.
She said all people have rights to inherit from their parents, and being married does not stop a woman from entitlement to her father’s wealth.
Mongare said when a woman gets married, she doesn’t cease to belong to her family.
“People are having a problem with this because they are only thinking of their sisters. Think of your wives or the women you are going to marry. It cuts both ways. Your sisters inherit, your wives also inherit. The law says don’t discriminate one child because one is born a boy and the other a girl,” she said.
“There are people born and raised in Nairobi. The only home they know is their house in Shaurimoyo or Kaloleni, and a man from that family marries a girl from Nyeri, where her family has 10 acres. Then the government comes up with a plan to build high-rise apartments and their homes are demolished, and you have six children. Wouldn’t it be better for that man’s wife to get land from her parents, so that at least you have somewhere to start again?
“This is a question of somebody denying women their right. All are born with equal rights at birth, they are taken to school equally, you marry, she gets married.
“The way your sister will inherit is the same way your wife will inherit, the same way your mother will inherit and the same way your daughter will inherit. It has not been happening because people have not been claiming their right.”
Mongare said some women are married in homes where they cannot afford two meals. If they get land from their homes, it would be good for them.
QUESTION OF BELONGING
But the Kikuyu Council of Elders chair says this should not be the case because once a woman is married, she no longer belongs to her father’s clan and should belong to her husband’s.
“When a woman gets married, she moves from her father’s clan to her husband’s clan, where she belongs henceforth. She can only be dependent on the clan of her husband. Coming to claim property from her father’s family is like her clan of marriage demanding property from where she came from,” Kiago said.
“It will bring a lot of problems. It will cause a lot of domestic fights. A man cannot be compelled to give the property to his married daughter. But he can do so if he has a lot of wealth and sees his daughter in anguish and voluntarily decides to give some properties.”
But the Fida chairperson maintains that men should stop thinking about inheritance from the perspective of their married sisters taking their [men’s] inheritance.
“It is not about your sister. It can be about your children,” Mongare said. “Assume you have four daughters, you have worked hard, bought land and built rental apartments, and you have an income of Sh400,000 from that investment.
“Your brother who has three sons has chosen not to work, and now what you have worked for goes to your brother’s sons because you only have girls? It doesn’t work like that.
“Today it is your sister, tomorrow it will be your own children who will be disinherited by your brother’s sons because all your children are girls. And I have seen many of these cases.”
Mongare blamed traditions for holding women as second-class beings. “You hear people say the deceased did not have children, yet he had six daughters,” she said.
“It is men who need to change. And the reason this attitude must change is that it is men who determine the sex of the child. You carry the X and Y chromosomes, and the woman has only the X chromosome. So it is you who determines the sex of the child, that’s scientifically proven. So you want your own blood to suffer because they are not boys?
“Stop thinking that your sister has come to inherit, while she has property where she is married. I come from Ukambani, where my parents have 30 acres.
“Where I am married, and we have five brothers, we have two acres. The only land I have is where I have put my house. I can’t even keep a chicken or cow because they will cross to my neighbour’s,” Mongare said.
“Assume I’m not the chair of Fida or a lawyer, I can’t afford to buy my own house and something happens, where will I go? Should I live like a squatter because I am born in a family that has land but married to a family that has no land, and my parents have land and I can till and do something even if it is goat rearing? Are you telling me that my parents will not provide for me?”
Maendeleo ya Wanaume’s Njoka said the inheritance dilemma triggered by Waithaka’s ruling can only be solved by a referendum.
The question he says must be asked is if, when it comes to inheritance and succession, the constitution should give more power to cultures and traditions over other statutes – a position he supports but that continues to divide the country.