Guide me on mediating succession row between sons and daughters
Many disputes occur in everyday life, but few of them are resolved by the formal courts. Instead, most of them are resolved using this system.
What you need to know:
- The Maasai customary law bars girls from inheriting part of their fathers’ estate.
- While mediating succession, it is important to be aware of the myriad social and cultural problems women face while trying to enforce their rights to use, own, manage and dispose of property.
Hi Vivian,
I serve as a village elder in a village in Kajiado County. Recently, I have been mediating a succession issue for one Mr Leboo, who is survived by multiple wives, sons, and daughters. After his death, the daughters visited my home for guidance in regard to their inheritance. The sons, on the other hand, argue that the distribution of their father’s estate was governed by Maasai customary law, which does not recognise the right of daughters to claim an inheritance from their father’s estate. What is my role and how should I advise while sticking to the requirements of the law?
Lemayian,
Kajiado
Dear Lemayian,
The process you are involved in is referred to as the Alternative Justice System (AJS). Many disputes occur in everyday life, but few of them are resolved by the formal courts. Instead, most of them are resolved using this system.
AJS is the detailed meaning of what the Constitution refers to in Article 159(2)(c) as traditional, informal and other mechanisms used to access justice in Kenya. Therefore, it is encouraged in the purview of human rights and the Constitution.
In a conference held in June 2022, themed ‘The Role of AJS in Accelerating Social Transformation through Access to Justice’, Deputy Chief Justice Mwilu, in her remarks, stated: “… basic constitutional tenets of equality, fair procedure, representation, non-discrimination, well-entrenched and enunciated in formal justice provision must receive more deliberate attention across AJS mechanisms and practices.”
As portrayed above, you have the backing of the justice system. However, while mediating issues of succession, it is important to be aware of the myriad social and cultural problems women face while trying to enforce their rights to use, own, manage and dispose of property, including land.
Discriminatory social and traditional practices perpetuate the notion that sons should inherit land, and that women and girls should negotiate the use of land through male relatives such as fathers, uncles, brothers, husbands and sons.
Kenyan courts have disregarded such notions on the basis that they are repugnant to justice and morality. The courts have further concurred that women’s access to land determines not only women’s and households’ level of living and livelihood but also food security.
Article 27 of the Constitution provides for equality and freedom from discrimination on the basis of sex, marital status, belief and culture, among other grounds. The provisions under Article 40 further imply that women, like men, have a right to own property of any kind anywhere and culture and traditions cannot be used to deprive them of those rights.
Finally, Article 60(1)(f) provides for the principles of land policy, which include the elimination of gender discrimination in law, customs and practices related to land and property.
Vivian
The writer is an Advocate of the High Court of Kenya and award-winning Civil Society lawyer. [email protected]
