When customary beliefs complicate sharing of deceased’s property

What you need to know:

  • Because men own most property, the rights of most women to property in Kenya and most of the developing world are premised on their relationship to a man.
  • When the relationship ends through death, divorce, or separation, the woman risks losing her home, land, livestock, household goods, money, vehicles and other property.

  • As a result, widowed women and orphaned children are particularly vulnerable and prone to lose rights of ownership, control and access to properties they enjoyed.

In July last year, Justice Mumbi Ngugi made a landmark decision in Kericho when she directed that the property of man be shared equally among his eight children, including daughters.

The decision did not go down well with Mr Joel Cheruiyot Korir’s clan, who insisted that daughters, especially those who are married, cannot inherit their father’s property.

Mr Korir, died on June 20, 2012, before writing his will. According to the letter from the Chief of Cheborgei Location, Mr Korir was survived by Mr Samuel Cheruiyot (then aged 76), Ms Sarah Rotich, a daughter aged 73; Rachel Korir, 71; Alice Korir, 69; Joshua Cheruiyot, 67; Elizabeth Sang, 63; Jane Ruto, 65; and Esther Korir, a daughter aged 61.

EXCLUDE SISTERS

His two sons -- Samuel and Joshua -- and their clan, wanted to share out the property to the exclusion of their sisters.

To support their decision, the two held a meeting with clan elders on September 29, 2016 where the issue of distribution of the property was discussed.

According to the minutes, girls have no clans until they are married and have no right to inherit property from parents once they are married.

As such, under Kipsigis culture, it would amount to trespass for the daughters and their children to be on the land that their father had left behind.

SELF-SERVING

Justice Ngugi disagreed with this view, saying; “With the greatest respect to the petitioner and his strong belief in custom, one cannot help but notice that the alleged clan meeting, if it took place at all, was convened with the sole purpose of condemning the protestor for having the effrontery to lay a claim to her father’s estate.”

According to her, the meeting was intended to buttress Samuel’s position that only he and his brother had the right to inherit from their father.

“In this case, it seems to me that the reliance on this provision is rather self-serving on the part of the petitioner,” she said.

According to her, this was an intention on the part of the petitioner to disinherit his sisters in general, but the protestor in particular, “by any means necessary.”

PROHIBITED

She wondered where the sons wanted their sister Rachel, who had been living on her father’s land, to go.

A simplified resource tool released by the Judiciary’s Family Division of the High Court notes that most of Kenya’s communities are patriarchal and are governed by norms of male priority, authority and power.

The manual says most of these communities, being poor and mostly in the rural areas, are governed by customary law.

“Majority of those that may wish to invoke statutory law are prohibited by cost, physical accessibility and inadequate understanding of how to engage the legal system,” the resource says.

MALE RELATIVES

The disproportionate power constitutes a major element of male authority. Inheritance practices that perpetuate this pattern of exclusion of women from ownership replicate patterns of poverty among women, and consequently, large sections of the communities.

It further notes that because men are the ones that own most property, the rights of most women to property in Kenya and most of the developing world are premised on their relationship to a man, whether father, husband, brothers or male relatives.

When the relationship ends through death, divorce, or separation, the woman risks losing her home, land, livestock, household goods, money, vehicles and other property. As a result, widowed women and orphaned children are particularly vulnerable and prone to lose rights of ownership, control and access to properties they enjoyed during the lifetime of their husbands or fathers,” the document says.