Help! My elder brother wants to evict our widowed mother from land our father left behind

Dear Vivian,

My firstborn brother is in the process of evicting our widowed mother from land our father left behind. He says she has no right to stay there now that he is managing family property. What are her rights and what must we do to stop him?

Susan Kathomi,

Embu

Dear Susan,

Widows in Kenya face many challenges, including discrimination, disinheritance, violence, stigma and poverty. Besides the Constitution, some laws in Kenya have provisions meant to protect the rights of widows. For example, under the Law of Succession Act, your mother is entitled to her personal and household effects absolutely and a life interest in the whole residue of the intestate estate while the children inherit thereafter. That life interest gives her the right to occupy and benefit from the land, making eviction by your brother without a court order, unlawful.

First, you should file a succession cause in the High Court seeking letters of administration if none exist and a declaration of your mother’s life interest. You will ask the court to issue an interim injunction preventing your brother from evicting her while the matter is determined. You need to bring evidence of marriage, the father’s death certificate, family relationships and the land title deed. Further, the chief in your location should give a letter identifying dependants and confirming family structure. That letter helps the court to know the dependants.

Read: Widowed? Here’s a simple guide to property succession

Next, the court will formally notify all interested parties through a 30-day Gazette notice allowing for objections. A court-annexed mediator will be assigned if there is a dispute among beneficiaries over devolution; the mediation will focus on how the estate, including any matrimonial property, will devolve without affecting your mother’s life interest. The Matrimonial Property Act protects her interest in the matrimonial home and any property acquired during the marriage, reinforcing her entitlement to remain and benefit.

After the investigation of entitlements, the court will make orders: grant of letters of administration if appropriate; a declaration confirming her life interest; an injunction or protective order against eviction; and a scheme for eventual distribution of the estate in line with intestacy rules. The residue after her life interest will devolve equally among all of you on her death or remarriage.

Read: What every widow needs to know about matrimonial property rights

If your brother resists, you should have a lawyer from Fida Kenya or Kituo Cha Sheria, both of which provide free legal aid. They will ensure the administrator accounts for the rights of the surviving spouse and children, and they can also invoke the court’s power to enforce compliance. The court can additionally order the estate to be managed by trustees, pending final distribution, to prevent waste or unilateral alienation.

Finally, there are decided cases where courts have affirmed surviving spouses’ rights to remain and enjoy life interest while preserving children’s future inheritance, and have blocked unlawful removal from family land.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).