Explainer: From documentation to dispute resolution - what you need to know
Kenya's complex succession laws often leave widows vulnerable to property grabbing and disinheritance, with challenges ranging from lengthy legal processes, to threats from relatives and conflicting marriage law definitions.
What you need to know:
- Kenya's complex succession laws often leave widows vulnerable to property grabbing and disinheritance.
- Women's rights defenders are pushing for reforms, including alternative dispute resolution mechanisms, to streamline the process.
- Legal experts advise widows to stay vigilant during mourning periods, understand their rights, and seek help early.
Rahab Wangari, a renowned paralegal and human rights defender in Githunguri, Kiambu County, is often troubled by a recurring injustice: succession cases.
“Succession matters are usually complex, and helping widows protect what is rightfully theirs from relatives is troublesome and risky,” she observes.
Wangari elaborates on one such case.
“I have a case where the first wife dispossessed the second wife of her land. We went to court and the succession was revoked,” she recounts.
“The second wife was just there crying while the first wife and her children were busy with the succession process. We encourage women to mourn with one eye open. It’s important to mourn, but do so with an eye on what is happening, as everything could be taken while you're still grieving.”
She recalls how the children of the first wife threatened her for supporting the second wife.
“I told them you can threaten me all you want, but we know her rights,” she asserts. The threats ceased.
In her view, the succession law should provide for alternative dispute resolution (ADR) to spare women the anguish of navigating a protracted legal process when they have little to protect.
However, this is not the only gap in the current succession law.
As highlighted by the Kenya Legal and Ethical Issues Network on HIV & Aids in its analysis of the Law of Succession Act CAP 160, “the current ambiguity regarding marriage definitions leads to inconsistent application of the law, particularly affecting the rights of women in succession matters.”
This issue is compounded by the Marriage Act, which outlines recognised forms of marriage in Kenya, including customary, civil, Islamic, Hindu, and Christian marriages. The inclusion of Islamic and customary marriages poses further challenges.
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“Without a clear integration of marriage definitions from the Marriage Act into the Succession Act, widows may face difficulties in claiming their rights to their deceased spouse's estate,” the report states in its 2019 analysis.
The report recommends amendments to address the Act's silence on systemic issues such as asset stripping, evictions, and forced widow inheritance, which women often encounter in the aftermath of bereavement.
It further notes that navigating the succession process is fraught with challenges. The complexity of legal documentation, high costs, and lengthy proceedings — which can take approximately nine months to complete — often deter women, particularly those in rural areas, from pursuing their rightful claims.
“The barriers posed by backlogs, complex processes, and exorbitant litigation costs prevent many women from seeking justice in matters of succession,” it asserts.
To address some of these challenges, the report proposes that the succession law explicitly provide for the use of ADR, especially in contentious probate matters.
