1. Law of Succession Act governs division of property upon death.
2. To a large extent, The Act provides for the equal inheritance of property between women and men.
3. Section 3 (2) of the Act defines “child” without any discrimination on grounds of gender.
4. However,
under Section 32, the Act does not apply to inheritance of agricultural
land and livestock within areas which the Minister may in the Kenya
Gazette specify. Section 33 of the Act stipulates that such land shall
be governed by the customary law of the community of the deceased. In
the case of
Mary Rono v Jane Rone & Another eKLR, the land
in dispute was situated in Uasin Gichu District and therefore the court
ruled that customary law did not apply as it was not specified by the
Minister. However, the court recognised that African Customary law did
apply to those areas specified by Gazette Notice namely: West Pokot,
Wajir, Turkana, Garissa, Marsabit, Tana River, Samburu, Lamu, Isiolo,
Kajiado, Mandera and Narok.
5. This means that if a person dies
intestate in any of these areas, customary law applies with regard to
agricultural land and livestock. The problem here is that the two
categories of property excluded may be the only property owned by the
deceased person. This means that women in those areas cannot benefit
from or seek protection under the provisions on intestacy which if
properly implemented could elevate the status of women in property
control and management in Kenya.
The exclusion of the law of
succession to these areas amounts to legitimization of discrimination
against women as most of Kenyan society is patriarchal.
6. However,
in some instances the courts have failed to apply the equality
provisions provided under the Act. The Court of Appeal in Mwathi v
Mwathi and another overlooked Part V of the Act and applied Kikuyu
customary law to the estate of an intestate who died in 1987, after the
Act came into force. The opinion of the court was that ‘the intestate
succession of a deceased Kikuyu is governed by Kikuyu customary law’.
Similarly,
in the Estate of Njeru Kamanga (Deceased), the daughters of the
deceased were disinherited by the magistrate who felt that the
daughters, being married, had no right to inherit their father’s
property.
The application of customary law is sanctioned by the
Judicature Act which allows for its application if it is not repugnant
to justice and morality.
7. Muslim women who had equal rights to
inherit under the Law of Succession Act were removed from that bracket
through an amendment.
No one has so far challenged the
constitutionality of the said provisions which are clearly against the
tenets of the Constitution.
8. The Act is also discriminatory in
its provision for a widow acquiring a life interest in the net estate.
Section 37 provides as follows:
1. Subject to the provisions of
Section 40, where an intestate has left one surviving spouse and a
child or children, the surviving spouse shall be entitled to –
(a) the personal and household effects of the deceased absolutely; and
(b) a life interest in the whole residue of the net intestate estate:
KNOWLEDGE TREE LAW NOTES I
