Legal clinic: My brother believes we as girls shouldn’t inherit our late parents’ property


My brother became very hostile after my parent demise and even chased one of my sisters from the family house.

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What you need to know:

  • Both my parents are dead and left us (five sisters and a brother), a house and farming land in Homabay County.
  • My brother became very hostile and even chased one of my sisters from the family house.

I am the firstborn of a family of seven: five sisters and one brother (one sister has since passed). Both my parents are dead and left us a house and farming land in Homabay County.

Immediately after my mom passed on during COVID-19 in July 2021, my brother became very hostile and even chased one of my sisters from the family house. When my sister, who is living in the UK, came, as she could not come for the burial due to lockdown, he threatened us with dire consequences if we went to the house, but we braved on as my sister was grieving.

Does my brother have the right to do this?

Dear Monica,

Law and culture continue to clash in many instances. This demonstrates the extent to which harmful patriarchy has gripped society. As a country, we have recognised this challenge and put in legal measures to rein in the blatant abuse and disregard of the rights of vulnerable groups, individuals, and communities.

Land ownership seems to be an emotive issue locally and globally since it’s a means of production. Several courts have decided whether girls and women are rightful heirs to their parents’ inheritance. In 2008, even before the new Constitution was promulgated, Justice Kalpana Rawal, in the Matter of Re: Estate of Lerionka Ole Ntutu, overruled the application of a Maasai custom that disentitled daughters from claiming their father’s inheritance. The High Court affirmed the legitimacy of the daughters’ claims to their late father’s property.

The Constitution provides rights to every person but also explains the limitations, if at all. The world over has moved legally on several gender-related issues, inviting and entrenching equity where the imbalance is overt, even covert.

Article 11 of the Constitution of Kenya 2010 gives every Kenyan the right to celebrate their culture, including practices that are parts or whole, in a way defined by their ethnicity or identity. However, Article 2 Clause 4 limits this right. It states that any law, including customary law, inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

Article 27 Clause 1 of the Constitution has created and provided equality before the law for every person, including the protection and benefits that accrue from it. Clause 3 of the same Article specifically points out that women and men have the right to equal treatment and access to political, economic, cultural, and social opportunities. Clause 2 then rounds this up by asserting that equality includes full and equal enjoyment of all rights and fundamental freedom.

Your brother must be reminded that discrimination has been outlawed. He must pay attention to Clause 5 of Article 27, which disallows every person not to discriminate directly or indirectly against another on any basis.

The understanding of the law regarding adulthood must stay within the provisions of Article 53 of the Constitution, which gives rights to all children. This Clause does not differentiate between female and male children, nor discriminates between girl and boy. The readers and your brother must be reminded that girls or female children do not lose their rights simply because they attain the age of majority.

There is a need to carry out succession of the estate that belonged to your late parents since they seem to have died intestate, which is demise without a valid will. The Law of Succession Act provides for a court-driven process that appoints an administrator to lead in distributing the deceased’s estate. The law permits you and your siblings, as children to the deceased, to petition the court for the Letters of Administration.

This application will then be gazetted in the Kenya gazette for at least 30 days as an opportunity for anyone who wishes to challenge or object to the petition. This being an administrative process, there is a need to ensure that Article 47 of the Constitution is not injured in any way to protect and promote justice.

Clause 1 prohibits every administrative action from being unjust, unfair, and averse to any party in a transaction. Such a person affected in the afore-described manner has the right to legal action, seeking restoration and protection of their right(s).

Your brother must be reminded that Section 29 of the Law of Succession Act identifies all children of the deceased as beneficiaries, hence being a central part of the distribution process. He must also be reminded that the Court in the Succession Cause 190 of 2013 affirmed that married women can inherit their father’s estates. This is established by Article 60 (f) of the Constitution, which outlaws gender discrimination and emphasises inclusion as one of the other main principles of land adjudication in Kenya.

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