Help! My in-laws are collecting rent from houses I co-owned with my late husband

Dear Vivian,

Since the death of my husband, my brothers-in-law have been collecting rent from the houses my husband and I co-owned. We got married 30 years ago in a cultural ceremony. We were blessed with three daughters. Even though I was a housewife, I ensured the family received my love and support. After the burial, I was informed that women do not inherit property and that I should be at my in-laws’ mercy. I am stuck and with no livelihood. What should I do?

Stella Momanyi,
Nyamira County

Dear Stella,

I am truly sorry to hear about your tribulations. It's important to understand that your situation has legal dimensions under the Kenyan law.

It appears that your brothers-in-law have taken it upon themselves to manage the rental properties. This is ‘intermeddling’ in legal terms. It occurs when individuals who are not legally entitled to do so take control or deal with the assets of a deceased person's estate. Section 45(1) of the Law of Succession Act provides that no person is authorised to take possession, dispose of or, otherwise, intermeddle in the free property of a deceased person for any purpose, unless expressly authorised by the Act or other written law, or by grant of representation, which can only be given by a court of law.

Further, succession laws provide that intermeddling in a deceased’s estate would make one guilty of a criminal offence where they would be liable to a fine not exceeding Sh10,000, or a term of imprisonment not exceeding one year, or both. One would also be answerable to the rightful executor or administrator of the estate to the extent of the assets in which they intermeddled.

On women’s inheritance, Article 27(3) of the Constitution provides that “women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.” This implies that one cannot justify the discriminatory treatment of a woman or girl on the basis of their sex when dealing with issues of property and land. The notion that women cannot inherit property is, therefore, not legally accurate.

The above position applies even in situations where cultural requirements do not promote gender equality. In fact, Article 2(4) of the Constitution states that any law, including customary law that is inconsistent with the supreme law is void. To assert your inheritance rights and regain control of the rental properties, you will need legal assistance.

Consult an advocate or organisation that specialises in property matters to help you apply for the letters of administration. These will enable you and your children to access the estate. As you make the visit, carry your identity card, death certificate, marriage certificate, names of the children, list of properties and an introductory letter from your local chief.

Vivian

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