In the traditional Kenyan context the men own land, and wives use the land to produce food for the household. In the Nyando river basin the dominant ethnic groups are the Kalenjin in the upper reaches and the Luo in the lower. In Luo culture the land that a woman cultivates will eventually be allocated to her sons, and, although the woman is allocated the land, the man decides which portion goes to which son. She works the land but never owns it, and is a custodian of the land on behalf of her sons while they are young. As each son gets married he is shown his piece of land. In her lifetime she continues to cultivate land which belongs to her son or her husband. The Luo community is polygamous and as the man distributes land to his wife/wives, he retains a portion for himself, which any wife may cultivate, but it will not be allocated to any son until he is dead. In the study area it was found that 65% of the women are married, so have access to land through their husbands as long as the husbands are not landless.
15 Onyango (n 5 above) 143.
Figure 2:Land ownership in the Nyando river basin?
Source: The Safeguard Study
Many respondents (76%) in the study indicated that women own land in the Nyando river basin. Seventy percent of respondents indicated that women inherit land from their husbands after their death. Six percent of the respondents indicated that women were allocated land by their living husbands and 11% that women got land by purchase (figure 4). This implies that most women will get to own land when they are widowed, yet widows are vulnerable and often face challenges in exercising their rights.
A woman inheriting ancestral land on death of husband is not free to do with it as she wishes. She may obtain the statutory rights and documentation, but she is expected to conform with an unwritten code of behavior dictated by society.
Under statute the wife can enjoy all household items, but only a life interest in land when the husband dies, and on remarriage loses this right.
Many widows in Kenya are excluded from inheriting from their husbands, and in-laws frequently evict widows from their lands and homes and take other property, such as livestock and household goods. Women, especially unmarried ones, can acquire land by purchase, but few do so. A small number have acquired land through inheritance, and they can also rent land. The written law does not bar women from inheriting land from their fathers but in practice few do. A few inherited from their parents on an equal basis with brothers but women are expected to marry and be absorbed by their husbands’ families.
19%
59%
2%
20% Father of
household head Household head
Mother of household head others
Figure 3: Ways through which women acquire land in the Nyando basin
Source: The Safeguard Study
The Succession Act16 provides that all children have equal rights of inheritance but discrimination has not been cured. For example, in the case of Mary Rono v Jane Rono,17 the trial judge held that the girls could not inherit their father’s property in equal share because that would give them a higher advantage when they get married. They challenged this decision on appeal, and the court of appeal held that there was no basis for such position, and shared the deceased properties equally among all the children.
Divorce and separation do not appear to be common in the study area (see table 2), reflecting the local cultural values which stigmatises divorce and separation. Upon divorce, case law established that family property would be evenly divided if the woman could prove contribution, but in practice women rarely get property upon separation or divorce without court intervention. In Kivuitu v Kivuitu,18 Essa v Essa,19 Nderitu v Nderitu,20 Kamore v Kamore,21 Muthembwa v Muthembwa,22 Mereka v Mereka,23 the
16 The Succession Act Cap 160 of the laws of Kenya of 1984 (revised 2008). See sec section 3.
17 Mary Rono v Jane Rono (2002), unreported.
18 Kivuitu v Kivuitu (1991) 2 KAR 241.
19 Essa v Essa (1995), unreported.
20 Nderitu v Nderitu (1997), unreported.
21 Kamore v Kamore (1980) 1 KLR 389.
22 Muthembwa v Muthembwa (2001), unreported.
6%
70%
2%
11%
2%
9%
Allocated by husband while still living
Inherited from husband after death Inherited from others
Purchased by themselves
Purchased on their behalf
Other (specify)
court of appeal gave the wife an equal share, primarily because the properties were registered in joint names . Justice Omolo in Kivuitu &
Kivuitu stated that non-financial contribution ought to be valued when apportioning the property. However, the court of appeal rejected this in Echaria v Echaria.24 It stated that where the property was registered in the name of only one spouse, then it had to be apportioned after considering the respective financial contributions of each, but non-financial contribution (including domestic labour) would not be considered.
Table 5: Marital status of women in the Nyando river basin Source: The Safeguard Study
The study results indicate that women have far less access to land compared to men. Many respondents (90%) indicated that access and control of land are critical in the movement of people in or out of poverty, placing those without land at grave disadvantage. Table 2 indicates the proportion of women in the study who are vulnerable (in terms of access to land) due to their marital status and age. The widows, the separated and the single over 18 years old have no guarantee of access to land and are considered vulnerable. In terms of youths, the major cause of vulnerability in relation to access to land for women is the unmarried state. Most women (65%) in western Kenya eventually get married because it is socially unacceptable for a woman to remain unmarried all her life. From age 40 (see table 2) and above the major cause of vulnerability is widowhood (86%). The customary practice of ensuring that each married woman has access to land for cultivation is a positive practice, because it ensures most women can participate in agricultural production. However, the benefits can be enhanced by making these rights more secure.
The National Land Policy (Sec 3.6.10.4) on Matrimonial Property notes that ‘existing laws and practices governing matrimonial property discriminate against spouses whose contribution to the acquisition of such property is indirect and not capable of valuation in monitory terms.
Further, the courts have been inconsistent in determining what amounts to
23 Mereka v Mereka (2001).
24 Echaria v Echaria (2007) eKLR.
Age group Single Married Widow Separated The
Vulnerable
Above 18 20% 65% 11% 1% 32%
Above 30 5% 75% 18% 1% 24%
Above 40 3% 70% 25% 1% 29%
such contributions, with the result that some spouses have unfairly been denied of their right to land’. The Policy is committed to:
(a) Review succession, matrimonial property and other related laws to ensure that they conform to the principle of gender equity.
(b) Enact specific legislation governing division of matrimonial property to replace the ‘Married Women’s Property Act of 1882 of England’.
(c) Protect the rights of widows, widowers and divorcees through enactment of a law on co ownership of matrimonial property.
(d) Establish appropriate legal measures to ensure that men and women are entitled to equal rights to matrimonial property
(e) Establish mechanisms to curb selling and mortgaging of family land without the involvement of spouses.
4.1 Gender and security of tenure
Customary rights are guaranteed by the community, so do not offer exclusive ownership of land. The family members and the clan leaders are important witnesses to the transactions. Customary rights are formalised on registration but can be transferred even before registration. Sharing is strongly encouraged, weakening the potential for wealth accumulation and infrastructure investment, and farmers who need more land for cultivation are able to use land belonging to others through customary crop sharing arrangements. Customary rights offer stronger security of tenure for men than women because women’s access to land is linked to the institution of marriage. While ancestral land is subject to statutory law, the urgency to complete formal transaction is absent where customary rights are strong. Where customary rights are weak, there is an urgency to complete the procedures because statutory rights are the source of legitimacy.
Statutory land rights give exclusive rights over the land and all the resources on it to the registered owner: he can transfer, lease, subdivide, charge and develop the land. Where there are no common customary norms among the residents of an area, statutory sources of authority tend to be more important entrenching individualisation of property and weakening access for others to key sources located on private land. Men are typically the registered landowners holding title deeds, and there is no legal bar against selling family land without their wives’ consent, so that married women can seldom stop their husbands from selling valuable family property.
A constitutional amendment in 1997 provided that all Kenyans were entitled to fundamental rights and freedoms, whatever their sex, and prohibited laws that discriminate on the basis of sex. However, section 82(4) exempted certain laws from the prohibition against discrimination.
It permitted discrimination:
with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law and with respect to the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons
Therefore, in spheres such as marriage, inheritance, and the application of customary law, discrimination was tolerated. Additionally, under section 82(6), if a Land Control Board gave or withheld consent to a transaction, this decision could not be challenged as discriminatory.
The National Land Policy Secretariat identified insecure land tenure as a problem associated with the management of land. The land policy (section 3.3) defines land tenure as ‘the terms and conditions under which rights to land and land based resources are acquired, retained, used, disposed of or transmitted’. It acknowledges that existing policies and laws on land have not provided equal protection to all categories of land rights, and the colonial and post colonial land administration has undermined traditional resource management institutions, and created uncertainty in access, exploitation, and control of land and land based resources. The National Land Policy25 provides for the protection of the rights of children and wives to private land. It also provides for protection from discrimination in alienation, holding and transmission of land based on sex, ethnicity or geographical origin, which is expected to improve security of tenure for women and children.
The former constitution of Kenya provided for enforcement of women’s property rights, but there is little record of women ever proceeding to institute suits to enforce their rights. Under The New Constitution26 Parliament is committed to enact legislation to regulate the recognition and protection of matrimonial home during and on termination of marriage, and to protect the interest in land of dependants of deceased persons, including spouses in actual occupation of land.