Daughters too have equal rights to property

Darline Kinyua (not her real name for fear of embarrassing her family) was destitute.

Ever since her father died, life had never been the same. She had become homeless and needy.

It all began when her three brothers took over her father’s property and divided it among themselves, leaving her and her sister with nothing: “I watched in disbelief as my three brothers took over the shambas, two cars and rental houses for themselves,” she says.

And as if that was not enough, some relatives and elders came to force her from her parental home where she had been living with her father and daughter because: “The house should not be left to a daughter,” Ms Kinyua says.

At the time, fate seemed to be relentlessly conspiring against her and as she and her sister wallowed in destitution, she could not help remembering all she had been through.

Earlier, before her parents had died, Ms Kinyua, a single mother had been excited to get an opportunity to go and work in Saudi Arabia and couldn’t wait for the chance.

It was not that her family was poor – her father was worth about Sh8 million at the time. He had land, real estate and other property – but she hoped for independence, to be able to send money home for her daughter and a chance to explore other parts of the world.

And in November 1996, she set-off. Her mother had just passed away in March that year. However, things did not turn out as she had hoped for. Instead of getting a job as a teacher or nurse, she had been conned into becoming a babysitter. After a horrifyingly difficult ordeal, she had been able to come back home in August 1999.

On returning home sad and disappointed, she lived with her father in relative comfort. She did not want for anything. “At my father’s house, we led a very happy life. We never lacked for anything. My sister would do the cooking and I would be run the errands as dad would send me to fetch him drugs and do this and that…” she says.

However, when her father died three months later without leaving a Will, she found her sister, her daughter and herself destitute, while her brothers enjoyed the money and the high life that came with property ownership.

Though she had tried to resist being forced out of her father’s house, she had finally given into the pressure and went to rent a room from her brothers in one of her late father’s houses in Kangemi.

“I bought a kerosene stove and started out afresh. It was such a painful experience,” she says. This was in 2000. In 2001, she decided enough was enough and with her sister she approached the Federation of Women Lawyers (Fida-Kenya) for legal assistance.

“We were so broke. Sometimes we would walk up to Fida-Kenya offices all the way from Kangemi,” she says, “I would be so weak on arrival that I would just sleep.”

It is here where she says she was empowered through civic education: “That is when I woke up to the realisation that I too had rights that were being violated such as the right to equal inheritance as my brothers,” says the now 42-year-old.

She and her sister opened a file with Fida-Kenya and the legal process started. In late 2003, administration letters came out that entitled each one of them to a monthly upkeep of Sh6,000 from the proceeds of their father’s properties. This went on until December last year, when they managed to acquire part of the residential estate through a court order, she says.

However, the issue is yet to be fully resolved, as all her brothers and sisters are yet to sign some papers that have to go through the court to enable equal share and distribution of their father’s property. She has four other sisters, three of whom are in Germany.

“At least we are at a stage where we can put this matter behind our backs and move on,” she says.

But Ms Kinyua’s case is not isolated. Though there is a statute law that spells out the rights of women and children in terms of inheritance, many women in Kenya are denied equal property rights, putting them at greater risk of poverty, disease (including HIV and Aids), violence, and homelessness.

The question as to whether a daughter can inherit property or not often elicits mixed reactions from almost every Kenyan family.

There is a widely held belief that stems from customary law and tradition that daughters are not entitled to inherit their parents’ property, and only a few of them would have the audacity to question on their right to inheritance.

A good number of daughters feel that it is only their brothers who are eligible to inheritance and dare not question it, because women are expected to marry and be ‘absorbed’ and provided for by their husbands’ families.

“This is because most of us have been brought up under customary law that ingrains this belief in us,” says Sekou Owino, the legal officer of Nation Media Group.

But the truth is that daughters are also equally entitled to their parents’ property, like their brothers. This is as stipulated in the Succession Act Cap160, which has been very silent, such that many women and even men in Kenya do not know of its existence or want to keep it under wraps. It has been as though people fear discussing the issue.

“This law is unknown to many outside the legal profession,” Mr Owino says, adding, “Under it, sons and daughters are entitled to an equal inheritance of their father’s property if he dies intestate (where deceased did not leave a Will).”

“The Law of Succession that came into effect in 1981 is very clear on this issue and does not make a distinction between male and female. It also ousts customary law,” he adds.

Mr Tom Chavangi, executive director, Clan also adds that the law also enhanced the position of a widow and makes no distinction when it comes to inheritance for sons or daughters.”

Section 41 of Cap 160 says: “Where reference is made in this Act to the net intestate estate or the residue thereof, devolving around a child or children, the property compromised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of intestate who attain the age of 18 years or who, being female, marry under that age, and for all or any of the issue of any child of the intestate who predecease him and who attain that age or so marry, in which case the issue shall take through degrees, equal shares, the share which their parent would have taken had he not predeceased the intestate.”

However, though these laws clearly spells out the rights of women and children in this matter, many women in Kenya are destitute and homeless.

A UN report by Human Rights Committee 2005 on Kenya’s compliance with the International Covenant on Civil and Political Rights (ICCPR) says that in Kenya, a woman’s access to property usually hinges on her relationship to a man, be it her husband, father, son, or other male relative.

When the relationship ends through death, divorce, or separation, the woman stands a good chance of losing her home, land, livestock, household goods, money, vehicles, and other property.

The report adds: “Many Kenyan women are unaware that they have legal property rights or have no idea how to enforce them. Even if they know of their rights, the time and expense of pursuing claims may be insurmountable.”

Ms Claris Ogongo, a lawyer with Fida-Kenya, says the Succession Act has been down played by the Judiciary; the very people who are charged with seeing to it that all men and women have access to fairness and justice.

“The Judiciary interprets the Succession Act the way it wants. And this has caused confusion since there are some contrasting results that have been noted in similar cases, as it depends on whose desk the case lands.

“A conservative judge would draw from culture and apply customary law, disregarding what the Act says. There have been some contradictory judgments from the court of Appeal…” she says.

In one ruling, a Human Rights Watch report quotes a high court judge as saying, “The Law of Succession Act can’t apply to rural land because women are supposed to be married and go away.”

In another case, a magistrate is quoted as saying, “The Law of Succession Act is applied only by the educated… If it is in the rural area, we don’t want to interfere with the community setup…”
These judgments were made irrespective of the fact that the law stipulates that it should be applied universally. The only exceptions to the Succession Act law are Muslims who have their own law on inheritance. There are also areas in North Eastern where this law does not apply in the case of agricultural land, crops and livestock.

The patriarchal society has also down played the law, such that the few women who know that it actually exists have to fight it out with their brothers to be able to access some of the property.

And in most cases, women who manage to fight for their inheritance rights end up getting a small percentage of this property.

This is one of the reasons most women would rather fold their arms to spare themselves the hassle and bitterness.

Widows are also meant to enjoy full rights of inheritance, but this has not been the case in practice.

The UN reports says many widows are excluded from inheriting from their husbands. When men die, widows’ in-laws often evict them from their lands and homes and take other property.

If a woman has a son, she may be able to keep her property in trust for her son, but even this is not guaranteed. In some areas, widows are forced to engage in risky traditional practices involving unprotected sex in order to keep their property.

These practices include wife inheritance, whereby a widow is “inherited” by a male relative of her deceased husband, and ritual “cleansing,” which involves sex with a social outcast, usually without a condom.

When a husband dies without a Will, property devolves to the surviving spouse who has a life interest in it. She also has absolute right to the personal and household effects of the deceased. If the children are still young, she will hold their property in trust until they grow up.

Where there are older children, the property is divided equally.

In a polygamous marriage, property is divided according to the number of children in each household and also adds any surviving spouse as an additional unit to the children.

Most women who attempt to question about their inheritance rights are met with stiff resistance from the community, as it is seen as defiance.

They suffer from shame, blame and mistreatment as it is seen as un-African for a woman to have the audacity to question ‘superior’ decisions made by men who are within the threshold of power in our African culture.

Ms Ogongo says that from the way Africans are socialised, married girls are not entitled to their father’s property. “The customary law in most African communities bars daughters from inheritance and even from enjoying an equal measure of the property as their brothers,” she goes on.

But she adds, for those who proceed to court, many get their full and equal inheritance rights back.

The succession Act has, however, also come under contention for some of its sections. “There are some very ‘contagious clauses’ that act to disfavour women from enjoying their equal rights to inheritance,” says Ms Ogongo.

Currently, women lawyers from Fida-Kenya are working on a draft proposal to present to the government to amend sections of the Succession Act.