Spotlight on family succession laws as widows lose property, land

Widows are losing property in court rulings that are tearing families and laying bare hitches in succession laws.

Legal technicalities, failure to prove marriage, lack of ownership documents, family wrangles and deaths of men before transactions are concluded are some of the reasons leading to women losing their property.

Mrs Lydia Muthusi failed to have her husband’s plot registered in her name when he died. 

TRANSFER

She told the court that her husband — Jackson Muthusi — bought a 0.5-acre plot in Kasarani, Nairobi, from Mr Henry Mungai Kiningo on February 3, 1981.

Mr Kiningo was a member of  City Chicken and Eggs Dealers Cooperative Ltd.

Mrs Muthusi said the transaction took place in the cooperative society’s offices and her husband paid a consideration fee of Sh28,000 with Sh2,000 as transfer cash.

NEGLIGENCE

As the legal administrator of her husband’s estate, Ms Muthusi made several attempts to get the cooperative to transfer the plot to her husband’s estate to no avail.

After several failed transfer attempts, she went to court in 2013, accusing the sellers of fraud and negligence.

However, Justice Kossy Bor found that there was re-balloting of the plots in 1991 and the Muthusis were out of the country then.

TECHNICALITY

“Nothing shows that the plaintiff’s husband went to the Ministry of Cooperatives to establish what plot was allocated to him after the re-balloting,” the judge said.

The court also said the case was statute barred, a technicality perhaps not known to Ms Muthusi.

“The plaintiff says her husband bought the plot in 1981. She adduced documents to prove this and stated that her husband worked out of the country until his demise in 1995,” Justice Bor said on July 26, 2018.

PLAINTIFF

“She filed this case in 2013. The court agrees with the defendants that the plaintiff’s claim is time barred, having been filed more than 12 years from the date the cause of action arose.”

Failure to prove marriage has also seen women lose property to their in-laws.

Ms Magdaline Nduta could not convince a court to have her husband’s plot registered in her name. 

She had nothing to show that she was Mr Joseph Kariuki’s wife.

REGISTRATION

Ms Nduta told the court that she was to inherit the plot from her father-in-law when her husband died in 2009.

The land in Makwa, Kiambu County, was taken over by her sister-in-law. Ms Nduta added that she lived on the disputed land with her sister-in-law.

“The plaintiff has not adduced sufficient evidence to warrant this court to order that the said registration be cancelled and the subsequent certificate of title issued to the defendant be annulled,” Justice Nyambura Gicheru said on September 26, 2017.

PROCEEDINGS

“For the above reasons, the court finds that the plaintiff has not proved her case on the required standard of balance of probabilities.”

The judge added that Ms Nduta created confusion on whether Mr Kariuki was her husband or father-in-law.

The Land Disputes Tribunal in Gatundu North had given a similar ruling but she did not furnish the court with the proceedings, Justice Gicheru said.

OWNERSHIP

In January this year, Ms Mary Atieno lost a case in which she wanted the ownership of her husband’s land transferred to her.

At the time of his death, the man had not secured a title deed for the plot.

Ms Atieno said she had occupied the land since 1977.

The court declined to stop Mr Micah Ondieki and Liyavo Farmers Society from interfering with the land.

RESPONDENTS

The widow told the judge that she was apprehensive the respondents may enter into dealings that could interfere with her interest in the land.

Ms Atieno maintained that the case had a high probability of success.

On February 10, 2014 in Uasin Gishu County, Ms Naomi Chelimo was saved by a court from losing her 8.9-hectare of land.

Her three brothers-in-law said the land she was claiming was family property and not solely owned by her husband.

FRAUDENTLY

The brothers denied claims that they were trespassers.

They said if Ms Chelimo had any title deed, then she obtained it fraudulently.

The three said the family’s original land was in Aldai, Nandi County, but was sold.

But Ms Chelimo said her husband, Wilson Kipyego, disappeared during the tribal clashes that rocked the country in 1992 and has never been seen since.

PROPRIETARY

The High Court in Eldoret said Mr Kipyego should be presumed dead and Ms Chelimo be allowed to start succession proceedings.

She was later declared the sole owner of the land.

Ms Chelimo said that when her husband was still around, her brothers-in-law never laid claim to the land.

“The defendants have not demonstrated any right or interest that nullifies or limits the proprietary rights of the plaintiff. They had a counterclaim, which could not be supported,” Justice Sila Munyao said.

DISPUTED

Ms Cecilia Wanjiru from Murang’a has also taken her land ownership case to court.

Ms Wanjiru’s brother-in-law, Washington Muchoki, wants her evicted from the one-acre disputed piece. 

He argues that the woman is not entitled to a share of the land “since she and my brother divorced three years ago”.

But Ms Wanjiru disputes what Mr Muchoki says, insisting that the land in question was owned by her ex-husband’s father, saying she has been living on the plot with her children.

DEFENDANT

The court was told that Ms Wanjiru was married to Mr Muchoki’s brother Mburu Gaithori.

The divorce was finalised on September 19, 2015.

“The plaintiff, therefore, is a former brother-in-law of the defendant,” Justice Grace Kemei said.

Ms Wanjiru contends that she has been in possession of the land from 1973 when she got married.

EXLUSION

She says the estate of her former father-in-law Nduati Mukarara — now deceased — was distributed in 2013 without her being involved or being provided for.

She told the court that her former husband renounced his right in his father’s estate without her consent and to her children’s exclusion and disadvantage.

She said Mr Muchoki has unlawfully and unprocedurally acquired her land.

Ms Wanjiru wants the court to cancel or revoke the division of the land and declare that she is entitled to the acre in question.

ACRIMONY

On March 8, Justice Grace Kemei barred Ms Wanjiru from amending her defence.

Mr Wahome Gikonyo, an advocate who specialises in family and property litigations, says succession matters have led to acrimony among relatives.

“The cases have resulted in bitter disputes between siblings. They form the basis of court cases. Some rows have led to criminal acts like murder, robbery with violence and arson to scare and intimidate family members from claiming a share of the property in dispute,” the lawyer said.