Women's Land and Property Rights in Kenya
Reem Gaafar · Oct 14, 2015
I. Introduction & Background
Introduction & How to Use This Guide
These country-specific guides were developed using two general guides we created in the past: Women's Land Tenure Framework for Analysis: Land Rights and Women's Land Tenure Framework for Analysis: Inheritance. These country specific guides do not seek to answer every question found in the other two guides; not all of the questions apply to every country. The general guides are intended to raise all possible issues. The country-specific guides use those guides as frameworks for understanding the main issues related to women’s land rights in a specific country context.
The country-specific guides not only serve as an example of how one can use the general frameworks for analysis, but they also analyze the women’s land rights situation in the particular country. Note that when it comes to analyzing customary law, we have selected one customary system for deeper analysis; however, this does not mean that all customary systems within this country operate the same way.
How to Use This Guide
In order to make these guides useful and user-friendly, when possible we have uploaded the full-text laws and articles that we cite to into the LandWise library.
The footnotes throughout this guide are all hyperlinked to full-text laws, articles or other citation information. When you hover over a footnote, the citation information will pop up in a bubble. When you click on the footnote, you will be taken to the full-text of the item the footnote is referencing.
Kenya’s legal framework is undergoing significant changes following promulgation of a new Constitution in 2010. This is particularly true in the areas of land and property rights and women’s rights, which require the development of new legal frameworks that conform with the provisions of the Constitution. Relevant provisions include: a Bill of Rights recognizing the right of women to equal treatment under the law and prohibiting gender-based discrimination; devolution of services, including land-related services to the county level; recognition of traditional dispute resolution mechanisms; a prohibition on the use of traditional dispute resolution mechanisms in a way that contravenes the Bill of Rights; and, requiring legislative implementation of the principle that women make up at least one-third of the members of elected or appointed political bodies. A set of land laws giving effect to the Constitution, the Land Act, Land Registration Act, and National Land Commission Act, were approved in 2012. A new set of marriage laws, the Matrimonial Property Act, 2013, and the Marriage Act, 2014, recently replaced the older framework, which included seven different marriage laws but did not include explicit provisions governing customary marriages. Other legislative reforms, including Community Land and Evictions and Resettlement Bills, are currently under development and debate.
Despite a progressive legal framework, Kenyan women’s land rights continue to lag behind those of men. Customary law, which often discriminates against women and limits their land and property rights, governs at least 65% of land in Kenya,and the patriarchal nature of Kenyan society often limits the rights of even those women not living on land governed by custom. Some estimates indicate that as little as 1% of land is titled in the names of women and 5-6% is titled jointly by women and men.
This guide provides an overview of the formal and customary legal framework governing women’s land rights in Kenya. Although this guide is not a comprehensive review of the legal and customary framework governing women’s land rights in Kenya, it provides the reader with a broad assessment of the status of women’s rights and challenges. Section II provides a summary of legal provisions relevant to the governance of land, including the laws on marriage, divorce, and inheritance. Section III describes the customary legal framework governing women’s land and property rights, looking broadly at practices common across ethnic groups. Section IV provides a brief assessment of the overall status of women’s property rights in Kenya, based on the preceding sections.
The author would like to thank Eileen Wakesho, Patricia Kameri-Mbote, and Renee Giovarelli for reviewing and providing valuable comments and insights for this practice guide.