This page will highlight a few areas for analysis.
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Although Kenya’s legal framework is progressive in its support of women’s land rights, patriarchal social and customary norms continue to limit women’s ability to exercise and enforce their rights to land and other property. Significant efforts will be needed to ensure that provisions of the Constitution and other laws guaranteeing gender equality are implemented across the country, including by traditional dispute resolution mechanisms.
Women are particularly vulnerable in cases of divorce, as the legal framework governing property rights upon dissolution of a marriage has historically been vague and contained gaps that made it difficult, if not impossible, for most women to assert their property rights following a divorce. The Matrimonial Property Act provides some clarity on issues of spousal property rights, in particular by providing a definition of the term “contribution” that includes domestic work and child care, but it remains to be seen how courts will interpret and apply the Act.
Women are also vulnerable in terms of inheritance of land and property. Customary practices generally grant women secondary rights to land that are dependent on their relationships with men, such as their fathers, husbands, or brothers. Under most traditions, women rarely inherit land. This disenfranchisement continues to occur, in spite of the Law of Succession Act’s intestate provisions treating daughters and sons equally. Further, the Succession Act and Matrimonial Property Act allow for the exclusion of inherited customary or ancestral land from matrimonial property, continuing to propagate the trend of male-dominated land ownership. Last minute amendments to the Matrimonial Property Act, requiring spouses to demonstrate contribution to matrimonial property, and the legalization of polygamy without the consent of the first wife in the Marriage Act, indicate that forthcoming laws may be less supportive of women’s land and property rights than intended under the Constitution. However, the legal framework established in the Constitution provides strong support for individuals and organizations seeking to challenge gender-discriminatory aspects of the laws.