My father died and left behind a house and some farming land. It is our rural home. We are two girls. My uncle asked if he could farm there instead of the land lying idle and we agreed. But now we want to develop the land, but my uncle does not respond when we ask him to stop farming. He has also been going around saying that we were not eligible to inherit the land anyway because we are girls. I foresee a falling out because he is quite adamant about letting go of the land. What steps can I take to address this? I am the firstborn.
To begin with, let us contextualise the debate of men, women, boys, and girls as envisaged by law within the confines of gender rights. We refer to four important principles found in the Constitution of Kenya to do so. First, in its specificity of rights, the Constitution identifies human beings as the tenet of human rights. This is enshrined in the Bill of Rights in Chapter Four. Human rights equally apply and belong to all men, women, girls, and boys alike. There is no place for discrimination based on gender, sex, or race. Article 27, (1-3) provides us with the basis upon which any and every form of discrimination must be abhorred. Second, the Constitution bars and makes illegal any action, ritual, custom, and tradition, even customary law that is in contradiction with it. Your uncle is in for a rude shock, should he choose to deny his nieces their rightful inheritance, even if he were to invoke the supremacy of certain ethnic practices. Third, as independent citizens of this country, you and your sister are entitled to own property and in particular land in any part of Kenya, as provided for in Article 40 (1). Fourth, is the reality that all Kenyans, including you, have a right to institute court proceedings claiming that fundamental right or freedom in the Bill of Rights is violated, infringed, abused, or denied. We are shy to recommend an alternative despite resolution as encouraged at Article 159 (2-c), though it is a less condescending approach since your uncle displays unmetered and likely unregulated community impunity.
The dilemma you face has been canvassed before several courts in Kenya. In the matter of Rono. V. Rono, even in the confines of the independent Kenyan Constitution, that was considered archaic, the court delivered the downright bludgeon-blow on these discriminatory practices against women in inheritance; it splendidly paid deference to the international instruments against all forms of discrimination against women especially the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Since justice seems remote from the uncle herein mentioned and the community of your father, we insist that you prepare to file a petition under the law of succession. This law does not discriminate between female and male children of the deceased nor pays attention to their marital status when it comes to the distribution of an estate. All children of the deceased are entitled to stake a claim to the deceased's estate. Section 38 of the Law of Succession Act enshrines the principle of equal distribution of the net intestate estate to the deceased’s surviving children, and the widow if any, if the deceased so died intestate in disregard of their sexual orientation. The aspect of including the widow is described in Section 40 (1) of the Law of Succession Act, as an additional unit to gain from the inheritance.
When you approach the court, there are several prayers that you must seek to ensure that your rights are not violated. First, by your pleadings is to pray the court to give you and your sister Grant of representation in order to access Letters of Administration, so that both of you can manage the distribution of your late father’s estate, as set out in section 51 of the Law of Succession Act. Secondly, you can also pray for an order of the court to have your uncle barred from any administrative matters concerning this parcel of land and evicted as well.
Fredrick Douglas once pontificated, “where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organised conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.” Do not be a victim of uncles who thrive in retrogressive and overrated patriarchal inheritance practices. Hold no fear to pursue this matter in court, since the law is espoused in the Law of Succession Act and the Constitution. Your action that is protected in Article 22 (1) of the Constitution will give impetus to the emancipation of the marginalised groups, especially girls and women on matters land in Kenya.
Mr Mukoya is a lawyer with over 17 years of experience. He’s the Executive Director of, Legal Resources Foundation.
