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A group of women stand off with men blocking access to property. Illustration by Vikas Thakur for Unbias the News.

What Stands Between Women and Their Inheritance Rights in Kenya

Many women in Kenya, especially in rural areas, are denied their legal rights to inheritance through traditional justice systems. What does it take to change attitudes and secure women’s rights?

In a small mud-walled house with no water nor electricity lives 65-year-old Esther Anyango. She makes her living selling secondhand clothes at a local market in Migori village, 163 miles out of Kenya’s capital, Nairobi.
The little money she makes can only afford her food.

Esther was a stay-at-home wife who took care of the family land and cattle for 30 years. She lived a good life through farming when she was married. When her husband died, her stepsons forced her out of her matrimonial home, months after the burial. Esther didn’t have children.

Esther’s legs are swollen because of diabetes and high blood pressure that developed after the death of her husband four years ago.  She endures leg pain, but walks to the market twice a week to make a living, and to the hospital to pick up her medication.

 

On a good business day, she can make Sh 1000 (€8). Esther comes from a farming community and without land of her own, she is forced to use the little profits she makes from her business to buy food.

“My small piece of land was my main source of income because I would grow vegetables, onions and tomatoes and sell them out. But now with my land and house gone, I have been reduced to a pauper.”

The Inheritance Dispute

The Kenyan matrimonial property act prevents relatives of a deceased man from evicting his widow from her matrimonial house or land, but this law continues to be violated.

Under Kenyan law, men and women hold equal rights when they are married:

  • to “administer, hold, control, use and dispose of property whether movable or immovable,
  • to enter into a contract; and
  • to sue and be sued in her own name.”

The law expressly forbids eviction from marital property in the absence of a court order or sale, during marriage and upon the death of one of the spouses.

Esther could go to court, but she did not have money to pursue the formal legal justice system in defense of her inheritance. Alternatively, she opted to settle for the traditional dispute resolution mechanism.

The resolution committee ruled that since I had no child, I had no right to claim inheritance. They told me to go get married elsewhere since my husband died,” said Esther in tears.

Esther’s case took six months to be concluded and since she was the complainant in the case, she was given time to defend herself before the traditional committee of ten men.

 

She had religious leaders from the African Inland Church in Kenya as her supporting witnesses, but still lost her case after seven out of ten dispute committee members ruled against her.

Fees for the informal judicial system: A goat and brew

Traditional Elders' Court
For a case to commence before the traditional dispute resolution committee, the complainant must provide a goat and a traditional brew, locally known as busaa.
The goat’s meat is roasted and served to the elders presiding over the case. The complainant and the defendant are however not allowed to take the meat and the brew because it is a taboo.
The traditional village dispute resolution committees are mainly operational in rural areas and comprise a group of village elders nominated by villagers. Their task is to preside over land and property cases between family members.
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Amos Kerich 60 years old- agrees, coming from a generation that still holds onto the traditional belief that women should not inherit property. He argues that since it is men who shoulder most of the responsibilities in the society, then they should be allowed to be sole inheritors of property.

"In our community, when a man dies, the woman can move on and get married elsewhere and that is where the fear is, that she might inherit the property, sell it and run away with the money."

That fear doesn’t seem to apply to men.

Access to Formal Justice

According to a Human Rights Watch report, limited access to justice and discriminatory traditional practices continue to block Kenyan women from the right and freedom of inheritance, especially land and matrimonial property. They aren’t alone- many women worldwide live in societies that restrict their full property rights. 

In Kenya, the practice of denying women the right to inherit land is prevalent in farming communities within the central, eastern, and western part of the country. It is common among some of the largest ethnic tribes, including the Kikuyu, Kamba, Kalenjin, Luo and Luhyia.

 

This practice can effect not only spouses, but also children. 

 

The 38-year-old teacher Evelyne Nyarendi spent seven years in court battling for her inheritance. Her brothers had refused to allow her to inherit a two-acre piece of land left to her by their late father.

“My father had allocated me the land in his will, but my brothers wanted to sell it illegally. They argued that since I was married, I had no right to demand inheritance from my father,” said Nyarendi.

The mother of three says the case drained her financially and emotionally. She took a  €2,400 loan from her bank to pay for the legal fees, a loan that has taken her years to service.

 

“For a whole seven years, I waited for justice to be served and it was finally, but at a huge cost. The support I got from my husband made me pull through the case,” she said.

To supplement her income, Nyarendi is currently cultivating hay on her inherited piece of land and selling it to dairy farmers.

 

“I harvest three times a year and I have been able to buy another two acres of land from the savings I made just from selling hay, two and a half years after I got my land back”

Barriers and Backlogs

Gladys Njeri, a succession and inheritance lawyer, has helped several women secure their inheritance from relatives and from the cases she has handled, she says that there is no way the traditional dispute committees for inheritance cases can favor women.

“When it comes to land ownership and property inheritance, the Kenyan culture is biased against women, especially the uneducated and poor rural ones, because they lack knowledge about what they can do to secure their inheritance.”

Gladys Njeri, lawyer

Njeri says that high legal charges are an additional impediment to the push of securing equal inheritance rights for women.

 

“Most of these women are poor and unemployed and cannot afford the $25 dollars needed for filing a case at the courts. If they cannot afford $25, how will they be able to pay a lawyer who demands the same amount for every court sitting?” she asks.

A huge backlog of cases in Kenyan courts has also discouraged many women from seeking justice through the formal judicial system.

 

As of March 2019, the Environment and Lands court, which handles inheritance and land related cases, had a total of 3,697 (five-year-old) and 18,233 (one-year-old) pending cases.

 

According to the Kenyan judiciary, it takes an average of two years and four months to effectively settle one such case, a length of time many women are unable to wait.

Judicial backlogs: a global issue for women?
One of the major issues preventing justice was the length of wait times: “Each case takes at least eight to ten years,” says Teli. India has a backlog of 40 million pending cases.
Are legal rights effective when they take months or years to ever access?
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Women's Empowerment as a Solution

The Kenya Rural Widow Alliance (KRWA), a non-profit organization has been helping women secure their inheritance by empowering them with knowledge on inheritance rights and laws through seminars organized for rural women groups.

 

To boost the economic standing of women deprived of their inheritance, KRWA has been offering small grants to enable them to start small businesses, like curio making and selling.

Anne Wakibia, KRWA secretary general says that with land being a key investment and economic asset, women who lose their inheritance are deprived of their economic security and independence. “They cannot access credit facilities from financial institutions since they lack security.”

KRWA has also been helping such women file cases in court by linking them to pro-bono lawyers and paying for cases, filing charges or paying legal fees in cases where pro-bono lawyers are hard to come by.

 

“We only help those who are willing to pursue the matter further in courts,” said Wakibia.

 

Community Education

In a bid to remedy the situation on the lack of knowledge on inheritance laws, the government through its local administrators has continually been holding education forums in regions where the problem is rampant.

 

These forums have particularly been targeting women, older men, and traditional council members. The attendees are educated on the importance of equal property inheritance rights and the risks involved in violating existing inheritance laws.

 

National and local radio stations within the most affected regions have also been running government and NGO sponsored messages and programmes on equal inheritance rights to educate communities on the existing inheritance laws and the importance of allowing women to inherit property.

Mainstream churches in Kenya, including the Anglican, Catholic and African Inland churches, are also contributing to the effort, partnering with government and non-governmental organizations to demystify the myth during church services and seminars.

 

Through their sermons the church leaders have been carrying a common message of women and men being equal with the same property rights and that they should be allowed to inherit property because they in one way or the other contribute to making of family property.

 

To initiate a cultural and generational change, the topic on equal inheritance rights is taught in schools under the social studies subject. During the yearly national schools and colleges drama and music festivals, students are sponsored to create drama skits, poems, and songs on the theme of equal inheritance rights in the society with the aim of passing the message to the community.

 

Until attitudes and practices match national law, women will continue to struggle alongside women worldwide who face barriers to getting their fair share.

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