II. Formal Legal Framework for Women’s Land and Property Rights

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This page will highlight a few areas for analysis.

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Constitution

The Kenyan Constitution recognizes three broad categories of land – public, private, and community.[9]

Public land includes (among others) government-owned or occupied land:[10]

  • The State retains the right to regulate the use of land “in the interest of defense, public safety, public order, public morality, public health, or land use planning.”[11]
  • The State has the right to acquire other property for a public purpose or in the public interest provided the acquisition is carried out in accordance with the Constitution, which requires prompt and just compensation for owners as well as good-faith occupants. [12]
  • Public land was called Government land in the prior constitution.

Private land consists of registered land under freehold tenure and land held under leasehold tenure:[13]

  • Private land owners have absolute proprietorship and the rights of exclusion except in cases of compulsory acquisition by the Government, as outlined in sections 107-120 of the Land Act, 2012.[14]
  • The right to acquire and own property is guaranteed to all Kenyans.[15]
  • Women’s rights to land are legally equal to those of men under Art. 27(1),[16]  which provides that, “every person is equal before the law and has the right to equal protection and equal benefit of the law,” but in reality there is a significant gap between men’s and women’s rights to land.

Community land consists of land legally registered to a group, transferred to a community through a legal process, or declared community land by an act of Parliament, as well as lands traditionally occupied by hunter-gatherer communities, lands held, managed, or used by specific communities as “forests, grazing areas, or shrines”, and land held in trust by a county government for a specific community.[17]

The equality of women and men is enshrined in the Bill of Rights: 

  • Equal treatment of all persons under the law.[18]
  • The right to equal treatment for women and men in the, “political, economic, cultural and social spheres.”[19]   It also prohibits discrimination by the state or a person, both direct and indirect, based on a variety of factors, including race, sex, pregnancy, marital status and disability.[20]
  • The Government also has a mandate to implement legislation and affirmative action programs to redress disadvantages to individuals and groups as a result of past discrimination.[21]

Any treaty or convention ratified by Kenya shall form part of the laws of Kenya.[22]  This is important because the Government of Kenya has ratified a number of international conventions and treaties with non-discrimination provisions, including women’s rights conventions that support women’s equal rights to land, such as: the Universal Declaration on Human Rights (1948); the International Covenant on Economic, Social and Cultural Rights (ICESCR 1966); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW 1979); and the African Charter on Human and People’s Rights (1981).[23]

The Constitution recognizes customary law, but invalidates it to the extent that it conflicts with the provisions of the Constitution, providing Kenyan women with legal protection against discriminatory customary practices:[24]

  • Article 159 promotes the use of alternative forms of dispute resolution, including traditional mechanisms, but traditional dispute resolution mechanisms are prohibited from acting in a way that “(a) contravenes the Bill of Rights; (b) is repugnant to justice and morality, or results in outcomes that are repugnant to justice or morality; or (c) is inconsistent with this Constitution or any written law.”[25]
  • The elimination of gender discrimination in customs and practices is an explicit guiding principle in the area of land use and management.[26]  Gender equity is also a guiding principle of the National Land Policy.[27]

Formal Laws Relevant to Land

The Kenyan legal framework on land is undergoing a fairly comprehensive overhaul following promulgation of the 2010 Constitution.  While some laws have already been enacted, notably the Land Act, Land Registration Act, and National Land Commission Act, others, such as a Law on Community Land, are yet to be finalized.  Below is a brief overview of key pieces of legislation related to land.

National Land Policy, 2009: Kenya’s National Land Policy, developed through a multi-year consultative process, provides a vision to “guide the country towards efficient, sustainable and equitable use of land for prosperity and posterity.”[28]  The policy:

  • Recognizes customary rights to land.[29]
  • Attempts to improve efficiency in land use and management by streamlining land administration, management, and dispute resolution.[30]
  • Addresses issues that require special intervention, including resolving historical injustices around land[31] and improving gender equity in land use, management, and ownership.[32] It specifically cites the need to protect women’s right to inherit land,[33] protect the land rights of widows and divorcees,[34] and establish a matrimonial property framework that provides equal rights to land for men and women during marriage and upon dissolution of the marriage.[35]
  • Distinguishes between married and unmarried women’s inheritance rights, directing the Government to secure the inheritance rights of unmarried daughters.[36]

Land Act, 2012: The Land Act provides the overarching legal framework for the governance of land in Kenya, based on principles established in the Constitution. Note that Article 68(a)[37] directs Parliament to revise, consolidate and rationalize existing land laws.  The National Land Policy also directs the government to enact a ‘Land Act’ to govern all categories of land.[38] The Land Act:

  • Defines the three categories of land in Kenya (public, private, community), and establishes the framework for managing and administering public and private land. 
  • Leaves management of community land to a forthcoming Community Land Law.[39]
  • Includes protections for the rights of landholders when their land is compulsorily acquired by the government, and dedicates a chapter to settlement programs.[40] The identification of beneficiaries must be carried out by a sub-county selection committee which must include a women’s representative elected by a local women’s organization.[41]
  • Defines ‘marriage’ as inclusive of civil, customary, and religious marriages and ‘matrimonial home’ as ‘any property that is owned or leased by one or both spouses and occupied by the spouses as their family home’.[42]
  • Requires spousal consent for the execution of any charge on a matrimonial home.[43]

Land Registration Act, 2012: The Land Registration Act provides for a unified land title registration system in Kenya. 

  • Provides the institutional framework for registration of all categories of land[44] and outlines the legal requirements for the acquisition and transfer of land rights. 
  • Includes strong protections for the land rights of spouses by allowing for joint tenancy[45] and including a presumption of joint tenancy for any land obtained for co-ownership and use by both spouses,[46] granting spouses a legal interest in land held in one spouses name where the other has contributed to it through his or her labor,[47] and requiring spousal consent for the disposition of any land or dwelling.[48]

National Land Commission Act, 2012: The National Land Commission Act establishes the NLC, as required by the Constitution (Art. 67).[49]

  • Enumerates the functions and powers of the Commission,
  • Establishes standards and qualifications for membership.
  • Gender equity in appointments is encouraged throughout the Act;[50] First Schedule;[51] per the Constitution, no more than two-thirds of the members of the Commission may be of the same gender.

Environment and Land Court Act, 2011: The Land and Environment Court Act gives effect to Article 162(2)(b)[52] of the Constitution which

  • Establishes an Environment and Land Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land.
  • Makes provisions for the court’s jurisdiction, functions and powers.

Other laws affecting land rights include the Matrimonial Property Act, 2013, which governs the ownership of property within a marriage as well as at the dissolution of a marriage, and the Law of Succession Act, which governs inheritance for all Kenyans with the exception of Muslims (discussed below).

Compulsory Acquisition

The Constitution and the Land Act set out strong protections for individual property rights and require prompt, just and full compensation for landholders subjected to compulsory acquisition of land.[53]  The Act includes a broad definition of “interested parties” for the purposes of notice and compensation, including any person connected to the parcel in the land registry or occupying the land, as well as the spouses of those persons.[54]  The NLC has been charged with developing criteria and guidelines for compulsory acquisition as well as regulation on compensation.

Family Law

The Kenyan Constitution and laws do not place limits on the categories of land women can own, although customary rules in the vast majority of communities do.  Women and men have equal rights in marriage;[55] the recently enacted Matrimonial Property Act, 2013, explicitly states that married women have the same property rights as married men.[56]  This echoes the Constitution, which states that parties to a marriage are entitled to equal rights at the point of marriage, during the marriage and at dissolution of marriage.[57] Kenya’s inheritance laws do not distinguish between the rights of female and male heirs.[58]

Shared Tenure

Kenyan law recognizes joint tenancies and tenancies-in-common, with joint tenancy only available between spouses.[59] Under joint tenancy a surviving spouse is entitled to the entirety of the property; the Land Registration Act[60] and Land Act[61] provide that on the death of a joint tenant the deceased’s name will simply be stricken from the register if a death certificate is produced.[62]  Property obtained during the marriage for co-ownership and use by both (or all) spouses is presumed to fall under joint tenancy, although the presumption may be rebutted with evidence the property was intended for sole ownership.[63]

The documentation requirements for shared tenure are not yet established. The Land Registration Act requires the Cabinet Secretary to make regulations giving effect to the Act, including regulations detailing the procedures for registration of land.  As of this writing, these regulations do not appear to have been developed.

The Matrimonial Property Act, 2013, establishes that the default property regime is separate property for married couples, although parties have the right to enter into an agreement regarding property rights prior to the marriage that will then apply instead.[64]  Since men are more likely to have property rights in land than women, this default regime makes it difficult for wives to gain property rights within marriage.  Marital property, defined as the marital home(s), household effects and goods inside the marital home(s), and “any other immovable and movable property jointly owned and acquired during the subsistence of the marriage”,[65] is considered the property of both spouses.  It is unclear if this language will be interpreted to exclude property acquired by one spouse for use by both.

Each spouse retains exclusive rights to property he or she held prior to entering the marriage, and is entitled to marital property according to his or her contribution.[66]  Under the Act, contribution refers both to monetary contributions and non-monetary contributions, including domestic work, child care, companionship, and farm work.[67] Property acquired during the marriage and owned by and titled in the name of only one spouse would therefore remain the sole property of that spouse and not be considered part of the marital property.

There is a rebuttable presumption that when property is held jointly in the names of both spouses, their interests in the property are equal,[68] while property held in the name of one spouse is presumed held in trust for the other.[69] The legal effect of this trusteeship upon the death of the owner-spouse is unclear, as the Law of Succession Act limits the property rights of surviving spouses.

In polygamous marriages, marital property, as defined above, acquired prior to the second marriage is owned equally by the husband and first wife, while property acquired subsequent to the second marriage is considered owned by the husband and both wives (and so on for subsequent marriages), taking into account each party’s contribution.[70]

Importantly, the Act does not explicitly state the categories of land to which its provisions apply.  It is possible that community land will be exempted from the category of matrimonial property in the forthcoming Community Land Act. 

Divorce and Property Distribution

Divorce is permitted under the Marriage Act, 2014, for all types of marriages.

Kenyan law includes significant gaps when it comes to the distribution of property in cases of divorce which have been only partially filled by the Matrimonial Property Act.  As a result Kenyan courts have had wide discretion in determining the appropriate division of property in divorce and succession cases. Case law has historically been conflicted owing to different understandings by judges of customary law, with which they are likely to be less familiar, as well as a range of interpretations of the term “contribution” in the context of determining spouses’ proportional rights to contested property.[71]

Under the Matrimonial Property Act, 2013,[72] matrimonial property is to be divided between the spouses upon divorce or the dissolution of the marriages, but “ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition”.[73] The term contribution has been clarified to mean both monetary and non-monetary contributions, including domestic work, child care and companionship, making it significantly more inclusive of the types of contributions typically made by women to the household. It remains to be seen how the courts will apply the Act, and its inclusive definition of contribution, in future divorce cases.

Marriage Regimes

Kenya recognizes five different marriage types – civil, customary, Christian, Muslim and Hindu – all of which are now governed by the Marriage Act, 2014.[74]  Previously, the legal framework for marriage included seven separate laws.[75] All have been repealed by the Marriage Act, 2014, which consolidates the five marital regimes into a single law with separate Parts establishing the legal framework governing each.  The Act does not make provisions for cohabiting couples in consensual unions.[76]

Several provisions of the Marriage Act apply to all marriages.  The minimum age of marriage is raised to 18 for both girls and boys, in all marriage.[77]  All marriages require the voluntary consent of both parties, as well as their presence at the marriage ceremony.[78]

All marriages are to be registered and have the same legal status.[79]  However, while “marriage” is defined as, “the voluntary union of a man and a woman whether in a monogamous of polygamous union and registered in accordance with this Act”,[80] the legal status of unregistered marriage which would otherwise fall under the Act’s jurisdiction is unclear. 

Civil Marriage:

  • Must be monogamous.[81]
  • Notice: Parties are required to provide notice of their intention to marry to the Registrar 21 days to three months prior to the marriage.[82]
  • Officiating: Celebrated in front of a Registrar, who completes and signs the marriage certificate, acquires the signatures of the parties, and provides copies to the parties and the Registry.[83]
  • Dissolution: Either party can petition the court to dissolve the marriage on the grounds of adultery, cruelty, exceptional depravity, desertion or irretrievable breakdown of the marriage, provided at least three years have passed since the celebration of the marriage.[84]

Customary Marriage: Customary marriages were previously recognized as valid but were, for the most part, not governed by formal law but rather by the laws of the specific community, which remain un-codified.[85]  The Marriage Act, 2014, brings customary marriages into the formal legal framework, although it preserves their customary nature.

  • Presumed to be polygamous or potentially polygamous.[86] Note that polygamy refers to a man having multiple simultaneous wives.[87] No legal limit to the number of wives a man may have.

o   A polygamous or potentially polygamous marriage may be converted into a monogamous marriage upon the voluntary declaration of both parties in the presence of a marriage officer, provided there are only two parties to the marriage at the time of the declaration.[88]

  • Notice: Notice of a customary marriage must be provided to the Registrar within three months of the completion of relevant ceremonies and/or steps.[89]
  • Officiating: Marriages to be celebrated in accordance with the customs of either or both parties.[90]

o   Where customary practices include payment of dowry, payment of a token amount is sufficient to fulfill the requirement for the purposes of the Act.[91]

  • Registration: Parties to a customary marriage must apply to the Registrar within six months of their marriage and must both appear before the Registrar in person to be issued a marriage certificate.[92]  Existing customary marriages must be registered within three years of the Marriage Act coming into force,[93] an ambitious goal that will require significant effort to achieve.
  • Section 8 of the Matrimonial Property Act defines land and property rights within a polygamous marriage, although the Act explicitly excludes Muslim marriages and therefore applies only to customary marriages.[94]
  • Dissolution: Either party may petition the court to dissolve the marriage on the grounds of adultery, cruelty, desertion, exceptional depravity, irretrievable breakdown of the marriage,[95] or any valid ground for dissolution under the party’s customary laws.[96]

Christian Marriage:

  • Refers to marriages where a party professes the Christian religion.[97]
  • Must be monogamous.[98]
  • Notice: It is unclear if the notice requirement for civil marriages (21 days to three months in advance) also applies to Christian marriages.[99]
  • Officiating: Celebrated by a marriage officer – a church minister licensed by the Registrar – who is charged with completing the marriage certificate and issuing copies to the parties and the Registrar.[100]
  • Dissolution: Either party may petition the court for dissolution of a Christian marriage on the ground of adultery, cruelty, desertion, exceptional depravity, or the irretrievable breakdown of the marriage.[101]

Hindu Marriage:

  • Applies only to persons who profess the Hindu faith,[102] although the interpretations section defines a Hindu as “(a) a Hindu by religion in any form (including…); (b) a Buddhist of Indian origin; or a Jain or Sikh by religion.”[103]
  • Must be monogamous.[104]
  • Officiating: Officiated by a person authorized by the Registrar in accordance with the Hindu rituals of a party to the marriage.[105]
  • Registration:  Parties to an existing but previously unregistered Hindu marriage are directed to register the marriage within three years of the enactment of the Marriage Act.[106]
  • Dissolution: Either party may petition the court to dissolve the marriage on the grounds of irretrievable breakdown, desertion, cruelty, exceptional depravity, adultery, or conversion to another religion.[107]

Muslim Marriage:

  • Applies only to persons who profess the Islamic faith.[108] It is unclear if the provisions of this Part apply when either party is Muslim, or only when both parties profess the Islamic faith.
  • Although the Act does not specify a limit to the number of wives a Muslim man may have, it is assumed that the Islamic limit of four wives applies to Muslim marriages in Kenya.
  • Officiating: Officiated by a kadhi, sheikh, or imam authorized by the Registrar, who is charged with recording the details of the marriage, completing the marriage certificate and delivering the record and certificate to the parties and the Registrar.[109]
  • Registration: Parties to an existing but previously unregistered Muslim marriage are directed to apply to the Registry within three years of the enactment of the Marriage Act.[110]
  • Property rights within a polygamous Muslim marriage are governed by Islamic law.[111]
  • Any provisions of the Marriage Act which are inconsistent with Islamic law and practices do not apply to Muslims.[112]  This provision raises questions as to the applicability of the minimum marriage age and other general marriage requirements to Kenyan Muslims.

Succession

Inheritance rights for Muslims are governed by Islamic law.[113] Kadhis’ Courts retain jurisdiction over the estates of deceased Muslims for the purposes of determining issues of Islamic law.[114]  Inheritance for all non-Muslim Kenyans falls under the jurisdiction of the Law of Succession Act (1981).[115]

The Succession Act exempts agricultural land and livestock in 12 specified districts (now counties) from its rules.[116]  In those areas, located in the Rift Valley, Eastern and Coastal Kenya, succession is determined by the laws and customs of the deceased’s community.[117]

The Law of Succession Act makes provisions for testamentary and intestate succession, and allows certain dependents - including wives, former wives, children of the deceased, and other family members and household members who had been financially maintained by the deceased immediately prior to his death - to apply for an additional portion of the estate if what they receive is unreasonable.[118] Where the deceased is a woman, her surviving husband is considered a dependent entitled to apply for an additional portion of the estate only if he was financially maintained by her immediately prior to her death.[119]

Where the deceased leaves a surviving spouse and children, the spouse is entitled to personal and household effects, and retains a life interest in the residual estate.[120] In the case of a widow, the life interest expires upon her remarriage,[121] and devolves to the children in equal shares.[122] Note that a widower’s life interest is not affected by his remarriage. During the existence of the life interest, the surviving spouse may only sell immovable property with the consent of the court.[123]

Where the deceased leaves a surviving spouse but no children, the spouse is entitled to “(a) the personal and household effects of the deceased absolutely; and (b) the first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater; and (c) a life interest in the whole of the remainder,” although the life interest of a widow terminates upon her remarriage.[124] During the existence of the life interest, the surviving spouse may only sell immovable property with the consent of the court.[125]

Where the deceased has surviving children but no surviving spouse the net estate devolves to the children, in equal shares.[126] Daughters who marry under the age of majority (18 years) receive their portion of the net intestate estate upon their marriage, while sons and unmarried daughters will not receive their share until they reach the age of majority.[127] Note that under the Marriage Act, marriages prior to age 18 are prohibited.[128]

Where the deceased had multiple spouses, his estate is to be divided among the wives’ households according to the number of children in each.[129] Each widow is also included in the household count, ensuring that widows without children are left with some portion of the estate.[130] Succession within each household then follows the rules described above.[131]

The High Court hears disputes over inheritance unless the amount of the estate is less than one hundred thousand shillings.[132]  Appeals of orders and decrees by resident magistrates or, in the case of Muslims, the Kadhis’ Court are heard by the High Court, with the Court of Appeals determining any questions of Islamic law.[133]

Enforcement of Formal Law

(See Section III for a discussion of women’s ability to enforce land and property rights within the customary system.)

The formal courts have jurisdiction to hear divorce cases, as well as property and land rights cases, but the Constitution encourages the settlement of land disputes at the local level to the extent possible.[134]

Specialized divisions have been established within the High Court, including a family division, which may be a positive development in the promotion of gender-based considerations in family law cases. However, a critical issue is the representation of women on the bench and within other land institutions.  The National Land Policy notes that women are insufficiently represented in institutions dealing with land and directs the Kenyan government to ensure the proportionate representation of women in land institutions at all levels.[135] This issue is also recognized in the 2010 Constitution, which confirms the principle of the elimination of gender discrimination in law, customs and practices related to land[136] and requires implementation of the principle that no more than two-thirds of the members of elective or appointive public bodies be of the same gender.[137]