WIDOWS AND THE MATRIMONIAL HOME: THE GAP IN KENYA’S LAW OF

SUCCESSION.

By G Wanyama and I Cherwon.*

INTRODUCTION.

The Constitution of Kenya under Article 40 formally introduced into Kenya’s legal system
the English common law right to own private property.1While explaining what this
common law right encompasses, Blackstone observed that:

[n]othing which so generally strikes the imagination, and engages the affections of
mankind, as the right of property; or that sole and despotic dominion which one
man claims and exercises over the external things of the world, in total exclusion
of the right of any other individual in the universe.2

Among the bundle of rights a private property owner has is the right to devolve ownership
to persons they choose to in the event of death.3The rationale advanced for why the law
of succession exists is that it avoids the confusion that would ensue if private property was
then to revert back to the public upon the death of the legally recognised
owner.4Consequently, it is an objective of English common law, to ensure that the
biological children, blood relatives and other people the deceased chooses have the right
to inherit from the estate of the deceased.5 This is because there is sufficient public interest
in preventing the conversion of private property to the public that allows the law to step in
and regulate proprietary rights.6

* wanyamalaw@[Link] :
1
JE Hovendren(ed), Blackstone Commentaries on the Laws of England, Book II (London: Stevens & Sons,1836)
at 2(2BlaCom)
2
Sam Murimi Karanja & 2 Ors v R [2003] eKLR [Sam Murimi]
3
2 BlaCom at 11-12: Banks v Goodfellow [1870] LR 5 QB 549[Banks] at 563
4
ibid
5
ibid
6
Ng’ok v Justice Moijo Ole Keiwa & 4 Ors [1997] eKLR [Ng’ok]:Charles Karathe Kiarie & 2 ors v Administrators of
the Estate of John Wallace Mathare (Deceased) & 5 others [2013]eKLR [Karathe Kiarie]: A Bell & G

Electronic copy available at: [Link]

Private property may be real or personal.7Real property is limited to land because it is
permanent, fixed and immovable.8Personal property is things that unlike land, are
movable.9The Constitution of Kenya is supreme law10 thus existing statutes had to be
aligned with it.11One such statute is the law of succession Act that may predate our
supreme law but it must be aligned to our Constitution.

THE LAW OF SUCCESSION IN KENYA BEFORE 1981.

The East Africa Orders in Council of 1897 made the Indian Succession Act of 1865
applicable to all persons domiciled in Kenya.12The Native court's Regulations of 1897
stipulated that only African Christians were to be governed by the law applicable to
Christians in India in marriage, divorce and succession matters.13The Native Estates
Administration Rules and Orders 189914regulated the administration of estates of African
Christians. For Africans who did not profess to be Christians or Muslim, the law of the
deceased’s tribe would be applicable in the administration of the deceased’s estate so long
as it was not ‘repugnant to natural morality.’15In 1902, the East African Marriage
Ordinance stipulated that English law of succession would apply to the intestate estate of
Africans who contracted a statutory marriage.16In 1903, the ISA 1865 became no longer
applicable to Africans17and in the following year, the customary laws of succession of the
tribe of the deceased became applicable irrespective of which marriage system they had
contracted into.18

Pochomovsky (eds), A theory of property law, (Cornell L Rev, Vol 90,2005)531-616(Bell et al 2005):online at
[Link]
7
2 BlaCom at 17: M Bridge, Personal Property Law,4th edition (London: OUP,2015) pg.1-21(Bridge 2015):
8
ibid
9
ibid
10
Art 2 Constitution of Kenya 2010(hereafter COK): Raila Odinga & 5 ors v IEBC & 3 ors [2013] eKLR
[Odinga No.1]: Re: Gender representation in the national assembly and the senate [2012] eKLR [Gender Opinion]:
ICJ(K) v AG & 2 ors [2012] eKLR [ICJ case]:
11
ibid
12
Act No X of 1865 (hereafter ISA 1865)
13
Art 64
14
Order No 11 of 1899
15
ibid
16
S39
17
S2 Application to natives of Indian Acts Ordinance No.2 of 1903
18
Native Christian Marriage Ordinance No.9 of 1904: Benjwe Jembe v Priscilla Nyondo [1912] 4 EALR
160[Pricilla Nyondo] per Barth J

Electronic copy available at: [Link]

The Pricilla Nyondo doctrine remained in force until the enactment of the African Wills
Ordinance in 196119 that enabled Africans to make testamentary dispositions while
intestate estates continued to be governed by the customary norms of the tribe of the
deceased.20The enactment of the Magistrate Courts Act21and the Judicature Act22had the
corresponding effect of giving courts the jurisdiction to resolve disputes arising from the
application of customary law in African intestate succession in a manner not repugnant
to written law. Consequently, the Indian Probate and Administration Act of 188123 started
being applied in intestate estate administration because African customary law was
‘primitive.’24

In regard to Muslims domiciled in Kenya, the East Africa Orders in council excluded the
application of ISA 1865 to the property of dead Muslims however, IPAA 1881 was
applicable in the distribution of the estate of the deceased.25The Native Courts Regulations
of 1897 disapplied IPAA 1881 in the administration of the estate of a dead
Muslim.26Islamic law became applied in marriage, divorce and succession matters
involving Muslims. In 1907, Khadis Courts were recognised and given exclusive
jurisdiction to apply Islamic Law in marriage, divorce and succession matters. The
Independence Constitution replicated this position.27Consequently, the Mohammedan
Marriage, Divorce and Succession Act28became the statute that regulated testamentary

19
Renamed the African Wills Act (1961) after independence
20
ibid
21
Chapter 10 Laws of Kenya (repealed)
22
Chapter 8 Laws of Kenya (Cap 8)
23
Act V of 1881 (hereafter IPAA 1881)
24
Re: Maangi [1968] EA 637[Maangi] Probate Court applied Indian probate and Administration Act 1881
to the estate of a deceased Kamba. The brief facts being that the applicant, an African widow was married
to a police officer who had died intestate. She applied to the High Court for grant of letters of
administration but was not permitted to apply because section 9 of the Indian Probate and Administration
Act precluded Africans from the Act and by implication from access to the High Court. Farrell J. upheld
the submissions that this was contrary to the constitution and thereby discriminatory. The relevant law
referred to by Farrell J of the Lancaster Constitution section 82 that deals with the fundamental rights of
the individual contained in Part v that is identical to the Universal Declaration on Human Rights.: Re:
Estate of Kibiego [1972] EA 179[Kibiego] per Madan J (customary African law of succession is medieval and
primitive’ hence inappropriate for administration of the estate of the deceased)
25
S331
26
M Ndulo, African Customary Law, Customs and Women’s Rights, (Cornell Law Publications, 2011), pg.
87(Ndulo 2011): A Malik, Customary Law in Modern Kenya (The Platform ,2017): online at
[Link]
27
S179(5) Kenya Independence Order in Council No.1968 of 1963 (Lancaster Constitution 1963)
28
Mohammedan Marriage, Divorce and Succession Act, Chapter 156 Laws of Kenya (repealed)

Electronic copy available at: [Link]

and intestate succession for Muslims in Kenya until Cap 160 came into force in
1981.29When Cap 160 was enacted, it was faced with major opposition from the Muslim
community because it contradicted the fundamental rules of Islamic Law on
[Link] Koran doesn’t recognise the concept of testamentary freedom 30because
only a third can be devolved by a will.31The Muslims had concerns that Cap 160 enables
a testator to devolve the whole estate. The Koran also forbids illegitimate children from
inheriting.32The concern from the Muslim community is that Section 29 of Cap 160 would
enable illegitimate children to do so. In 1990, Cap 160 was subsequently amended to
exclude its application to Muslims.33

Regarding the Asian settler community, the East Africa Orders in Council made English
law of succession codified in ISA 1865 applicable to persons who are Hindus or Buddhists.
Through Order No.2 of 1898, Asians who professed the Hindu or Buddhist faith were
excluded from the application of the principles of the English law of succession.
Consequently, the Hindu Wills Act of 1870 and the Indian Probate and Administration
Act of 1881 became the law applicable to a testamentary succession of persons who
profess the Hindu or Buddhist faith. Intestate succession was governed by Indian
customary law until in 1946, the Hindu Marriage, Divorce and Succession Ordinance34
was enacted to govern testamentary as well as the intestate succession for people who
profess the Hindu or Buddhist faith. This statute codified Hindu customary law norms on
succession and limited its application to the estates of persons who contracted Hindu
marriages in Kenya.35

29
S99 Cap 160
30
S5 Cap 160
31
HA Mwakimako, Impact of customary law on The Practice of Islamic Law of Succession: A Case Study of the
Adigo of southern Coast of Kenya (unpublished LLM Thesis, UON,1992) pgs. 87-109(Mwakimako 1992)
32
ibid
33
Statute Law (Miscellaneous Amendment) Act No 2 of 1990: S2(3)(4) Cap 160: S3 (5) Cap 160: S48(2)
Cap 160: S50A Cap 160
34
Later evolved into the Hindu Marriage, Divorce and Succession Act, Chapter 157 Laws of Kenya
(repealed)
35
Bessan Kaur v Rattan Singh [1952] 25 KLR 24[Bessan Kaur]

Electronic copy available at: [Link]

 WHY THE LAW NEEDED TO BE CHANGED.

In 1967, the government of Kenya was grappling with the issue of reforms in the law of
succession.36 In that year, the government set up a Commission to investigate the laws of
succession in the country.37 The commission’s terms of reference were:

[T]o consider the existing laws of succession to property on death, at the time
and the making and proving of wills and the administration of estates, To make
recommendation for a new law providing a comprehensive and, so far as it
may be practicable, uniform code applicable to all persons in Kenya, which
would replace the existing law on the subject, comprising customary law, the
Indian applied Acts, and the relevant Acts of Parliament including those
governing Muslims and Hindu succession, and To prepare a draft of the new
law in line with their findings.38

The intention of comprehensively reforming the laws of succession has been in the
Government's mind for some time.39 There were a variety of succession laws affecting the
various communities of Kenya in different ways.40Indian statutes that codified English
common law governed the law of succession for the white settler community.41The
succession to the estate of deceased Hindus was governed by the Hindu Succession Act 42,
which applies Hindu law, and the Hindu Wills Act of 1870.43 Muslims were governed by
the Mohammedan Marriage, Divorce and Succession Act.44The law of succession for
indigenous Africans was governed by the customary law of the deceased’s tribe when they

36
E Cotran, Marriage Divorce and Succession Laws in Kenya: Is Integration or Unification Possible? (AFRJL
40(2)1996) pgs.194-204 (Cotran 1996)
37
Kenya Gazette Vol. LXVIX, No. 15, Gazette Notice No. 1095 (March 17, 1967)
38
Cotran 1996 pg. .196.
39
ibid
40
ibid
41
HE Amrolia, Probate and Administration in Kenya (London: Sweet and Maxwell,1968): Cotran 1996 pg.
196.
42
Hindu Succession Act, Chapter 158 Laws of Kenya (repealed)
43
Cotran 1996 pg. 196
44
Chapter 156 Laws of Kenya (repealed)

Electronic copy available at: [Link]

died intestate. If the deceased had made a will according to the Africans' Wills Act,45the
deceased’s estate wouldn’t be subject to African customary law.46

The government’s concern at the time was that the existence of these different systems of
succession laws ‘creates numerous problems of conflict and administration.’47In addition,
the government felt ‘it is imperative that a uniform law of succession should be introduced
which is applicable to all persons in Kenya without distinction.’48 The rationale was that
first of all, a uniform law of succession is after all an essential prerequisite to sound
economic development49Second, that ‘the success of our land registration programme
depends to a large extent upon the introduction of a uniform law of succession.’ 50The
recommendations of this Commission on the Law of Succession on how to integrate all
the systems of succession into one statute became codified in Cap 160.51

THE MATRIMONIAL HOME IN KENYAN SUCCESSION LAW.

In Ying52, Justice Ringera observed that the Married Women’s Property Act of 188253is an
English statute of general application as defined by Cap 8 and applicable in Kenya. 54This
statute was in operation in Kenya until its application was discontinued by the enactment
of Kenya’s Matrimonial Property Act.55The purpose of enacting MWPA 1882 was to
insulate private property acquired by wives prior and during to her marriage from the
estate of her husband.56This has practical implications on the ability of a widow to inherit
of the matrimonial home.57This is because a wife who had no land before her marriage or
a wife who had not acquired land during her coverture could not then acquire a legal right

45
No 35 of 1961 (repealed)
46
Cotran 1996 pg. 196-197
47
ibid
48
ibid
49
ibid
50
ibid
51
Preamble Cap 160: S2 (1)(2) Cap 160
52
Ying v Ren [1994] HCCC No 124 of 1994 (OS)(Unrptd)[Ying]: I v I [1971] EA 276 per Trevelyan J
53
Hereafter MWPA 1882
54
S3(2) Cap 8
55
S19 Act No 49 of 2013(MPA 2013)
56
C Kanjama and K Juma(eds) Family Law Digest: Matrimonial Property (Nairobi: Law AFR 2009)
pg.5(Kanjama and Juma 2009):
57
JM Eekelaar, The Matrimonial Home in the Court of Appeal (LQR 1972) pg.333

Electronic copy available at: [Link]

to the matrimonial home her husband had acquired.58 Neither could a wife have a
proprietary interest in her matrimonial home greater than those of a third
party.59Consequently in HFCK60, where a wife approached the court seeking a declaration
that a certain property registered in the sole name of her husband was the joint property
of the spouses. She also wanted an injunction stopping the chargee of the property from
dealing with the suit property pending the determination of her interest in the property.
The trial court granted her the injunction and the chargee appealed. Justices Omollo, Shah
and Bosire held that because of the separate property system in MWPA 1882, the trial
court was wrong in granting the wife an injunction.

However, in Kitale, an opposing position was adopted by the Kenyan High [Link] this
case, the parties had been [Link] husband later purchased the matrimonial home
and was the registered title [Link] purchase of the matrimonial home was financed
partially by a mortgage undertaken by the wife. The marriage subsequently broke down
and the husband left the matrimonial home. The husband had used the matrimonial home
as security for a mortgage. When the husband defaulted, the mortgagee wanted to exercise
their statutory power of sale consequently, the wife sought an injunction to stop them from
doing so. Justice Mulwa ignored the HFCK decision and followed the English decision in
Gissing.61Justice Mulwa consequently held that even though 1882 MWPA created a
separate property system for the matrimonial property, contributions by the wife towards
the acquisition of the matrimonial home creates a beneficial interest in the matrimonial
home that is dependent on the law of trusts.62

In the subsequent Muthembwa63 a new ‘high point in Kenyan family law jurisprudence was
reached.’64This is because the concept of family welfare was used to justify the duties of a
wife as a mother as a form of contribution that is the basis of a wife to jointly own all the

58
S Farran, what is the matrimonial property regime in Vanuatu (2001) in Kanjama and Juma 2009 pg 2
59
Kanjama and Juma 2009 pg 152.
60
Housing Finance Corporation of Kenya Ltd v Kimeriah and Anr [1998] LLR 471(CAK)[HFCK]
61
Gissing v Gissing [1970] 2 All ER 7[Gissing]
62
Kanjama and Juma 2009 pg 140
63
Muthembwa v Muthembwa [2002] eKLR [Muthembwa]
64
Kanjama and Juma 2009 pg.140

Electronic copy available at: [Link]

property acquired by her husband during her coverture.65Consequently, the Kenyan Court
of Appeal created a situation where Kenya had a twin system of separate marital property
grounded in statute66and a ‘sui generis regime of pseudo-community marital property’67in
which a wife may have an interest in the matrimonial home that overrides those of a third
party.68The unresolved question became whether a third party has a superior interest over
the matrimonial home after a husband dies that supersede those of a widow or even if a
widow didn’t make a financial contribution in the purchase of the family home, she has
an equitable interest in a matrimonial home that supersedes the rights of third parties. 69

This conflict was finally resolved through the enactment of MPA 2013 that makes all
matrimonial property subject to the separate property regime with the exception of the
matrimonial home which is under the community borum system.70 Consequently, for all
intents and purposes, a woman is automatically a joint proprietor of the marital home the
moment she enters into a marriage.71The clear intent of MPA 2013 is to make the
matrimonial home jointly owned in the manner the Land Act72envisions which in turn
guarantees that when husbands die, the widows inherits the matrimonial home.73

COMPARATIVE LAW ANALYSIS.

English common law sees the status of marriage as a private economic relationship since
marriage is a legal relationship created through a civil contract for the benefit of the unborn
children of a couple.74A wife has no separate legal identity from her husband75and as such,
by common law, she has no capacity to own private property in her own right.76There is a

65
ibid
66
HFCK [1998]
67
Kanjama and Juma 2009 pg.141
68
ibid
69
ibid
70
S12 MPA 2013
71
E Cooke et al (eds) Community of Property: A regime for England and Wales (2006): online at
[Link]
72
S79(1)(3) Land Act no 6 of 2012 (LA 2012):
73
Cooke 2006: S44 Cap 160
74
ibid
75
N Lowe and G Douglas(eds) Bromley's Family Law, 9th edition, (London: OUP 1998) pg. 184(Lowe and
Douglas 1998)
76
S Creteny, Family Law in the Twentieth Century: A History, (London: OUP, 2003) pg. 91-93(Creteny 2003)

Electronic copy available at: [Link]

‘deeply rooted idea of male superiority’ in English common law principles that regulate
the institution of marriage as well as rights of succession to matrimonial property.77This is
because, by common law, marriage acted as a ‘legal transmission of the wife’s property to
her husband.’78Consequently, women from wealthy families started protecting their
interests in private property acquired prior and after the start of their coverture through the
device of prenuptial contracts.79This was primarily done at the instigation of a woman’s
parents in order to insulate property they bequeath to her from her husband and his
creditors.80

In the 19th century, as a result of the industrial revolution, women from modest
backgrounds joined the workforce and therefore there was a need to protect their income
from their husband’s creditors.81In such a situation, agitation for law reform resulted in
the Matrimonial Causes Act of 1857 which protected property acquired by a wife as long
as a judicial separation was in force.82Consequently, a wife judicially separated from her
husband had ‘the sole power to dispose of a legal interest inter vivos or by
will.’83Furthermore, if she had been separated extra judicially from her husband through
desertion, she could obtain a protection order to insulate her interests in private property
from her husband or his creditors.84The Married Women’s Property Act of 188285 was the
next statute enacted by Westminister and it established a separate property system
whereby the property acquired by wives prior to her marriage remain hers throughout her
coverture.86The MWPA 1882 is significant because it migrated English law from the
common law position that wives lacked the capacity to hold property with a ‘rigid doctrine

77
ibid
78
ibid
79
ibid
80
ibid
81
Lowe and Douglas 1998 pg. 110
82
ibid
83
S25 Matrimonial Causes Act 1857
84
S21 Matrimonial Cause Act 1857
85
hereafter MWPA 1882
86
Lord Hailsham et al (eds)Halsbury Laws of England ,4th ed (London: Buttersworth,1976) pg.181(Halsbury

inference taken from MWPA 1882 is that if a wife ‘contributes’ towards the acquisition or maintenance of
1976): Lowe and Douglas 1998 pg. 110: S 1 MWPA 1882: S 2 MWPA 1882: S5 MWPA 1882: The

property acquired by her husband, she is entitled to a share of the property when the couple divorce:

Electronic copy available at: [Link]

of separate property’ grounded in statute.87The Matrimonial Causes Act of 195888
confirmed that any power conferred to English courts by Section 17 of MWPA 1882 to
make orders includes the power to order the sale of property and transfer of title to ‘the
entitled spouse any property, which represented the proceeds of disposal when one spouse
unlawfully sold the property of another.89

English law follows the community borum system in regards to the matrimonial home.90The
Matrimonial Homes Act91was enacted in response to the criticisms that MWPA 1882
didn’t protect wives’ interest in the matrimonial home from third-party interest.92The
MHA 1967 stipulated that ‘where one spouse is entitled to occupy a dwelling house, and
the other is not, the latter may not be evicted by the former without a court order; if the
latter is not in occupation, then with permission of the court, she/he may enter and occupy
the house.’93This spousal right of occupation was to be registered as charges on the land
the matrimonial home sat on to ensure ‘that thereafter there would be no sale or mortgage
of the dwelling-house by the spouse in whom the legal estate was vested unless the
registration was discharged or the other spouse consented.’94This spousal right of
occupation was however terminated when the occupant died or alternatively, the marriage
was dissolved through divorce or vide court order.95In determining whether to enforce the
spousal right of occupation, English courts were directed to ‘consider all circumstances of
the case including the conduct of the parties towards each other, the needs of the spouses,
their financial resources, the needs of any children and all circumstances of the case.”96

87
Lowe and Douglas 1998 pg. 110: S17 MWPA 1882 empowered a court to ‘summarily and within its

this could be applied to any species of property.’

discretion decide any question between husband and wife as to the title to, or possession of property; and
88
Matrimonial Causes (Property and Maintenance) Act 1958 (MCA 1958)
89
Lowe and Douglas 1998 pg. 110: S 7(7) MCA 1958
90
Kanjama and Juma 2009 pgs.1-4
91
Matrimonial Homes Act of 1967 (MHA 1967):
92
Creteney 2003 pg. 129: Lowe and Douglas 1998 pg. 136: 37 of the English Matrimonial Proceedings and
Property Act of 1970 addressed the question of improvements made by one spouse upon the property of
another. By giving such a spouse a beneficial interest in the property whether it be personal or real. It was a
requirement, however, that the improvements must be substantial and there must be no agreement
between the spouses to a different effect. The MPPA 1970 made specific reference to the contributions
made by the parties to the welfare of the family, including "contributions made by looking after the home
or caring for the family. With the adoption of this law, courts moved away from an exclusive concern with
maintenance towards equitable distribution of property on the breakdown of the marriage.
93
Lowe and Douglas 1998 pg. 185
94
Creteney 2003 pg. 129:
95
S 1 MHA 1967
96
S 1(3) MHA 1967

10

Electronic copy available at: [Link]

MHA 1967 was subsequently replaced by the 1983 Matrimonial Homes Act97which had
the objective of improving spousal rights of occupying matrimonial homes. This statute
was subsequently repealed by the Family Law Act98which however retained the basic
features of MHA 1983.99The FLA 1996 has given the non-entitled spouses security of
tenure and the privilege of being considered eligible to pay the mortgage, rent or other
outgoing so as to keep up the occupation and prevent the mortgagee or landlord from
seeking possession.100The matrimonial home rights, however, must be registered to bind
third parties and will usually come to an end on the other spouse's death or on the
dissolution or annulment of the marriage unless the court has ordered they should
continue after termination of the marriage.101

THE CONSTITUTION OF KENYA 2010 AS A CATALYST FOR CHANGE.

To understand the desire to change Cap 160, one must start from an appreciation that
English common law has an inherent hostility to the idea of human rights. This hostility
can be traced back to Jeremy Bentham who, while commenting on the French Revolution
and the Declaration of the Rights of the Person, described the idea of natural rights as
‘rhetoric nonsense.’102 This attitude was exported into Kenya and informed our rights
litigation until the dawn of the international human rights movement in the late 20th
century that corresponded with the collapse of the British empire.103 A written Constitution
that had a Bill of Rights became the way former colonial masters negotiated their exit from
Africa.104 This was because a Bill of Rights was seen as a shield that can protect the
European settlers, Asian settlers and small tribes from the dangers of arbitrary government
by the majority.105 However, the ideological conflict between English Common Law and
the idea of human rights20opened the door for arbitrary rule by subsequent KANU

97
Matrimonial Homes Act of 1983 (MHA 1983)
98
S30-41 Family Law Act of 1996 (FLA 1996)
99
Creteney 2003 pg. 134-135
100
Lowe and Douglas 1998 pg. 68: S63 FLA 1996, a dwelling house "includes any building, or part of a

any yard, Farden, garage or outhouse belonging to it and occupied with it”: S 30(3) FLA 1996: S33(5)
building, which is occupied as a dwelling, any caravan, houseboat or structure occupied as a dwelling, and

FLA 1996: S33(6) FLA 1996:

101
Lowe and Douglas 1998 pg. 68
102
SA de Smith, The new Commonwealth and its Constitutions (1964) in AW Munene, The bill of rights and
constitutional order: A Kenyan perspective (AHRLJ vol 2 ,2002) pgs134-136(Munene 2002)
103
ibid
104
YP Ghai, Constitutions and political order in East Africa (1972) in Munene 2002 pg. 141
105
ibid

11

Electronic copy available at: [Link]

administrations to the point of reducing the independence Constitution’s Bill of Rights
into a mere declaration.21

The desire for change culminated in the Bomas process that produced the current
Constitution, that came into force on 27th August 2010 which enhances and protects the
Bill of Rights.22Some of the most obvious ways it does this is by recognising second
generation human rights23 which had been completely ignored by our Courts despite our
treaty obligations.24The unfair way human rights were limited has been replaced with a
proportionality test25and some rights essential to a liberal democracy can't be derogated at
all as long as the Constitution is in force.26Unlike the previous Constitution27, the
enforcement mechanism is better.28The issues of jurisdiction is settled29and the locus
standing has been expanded.30Consequently, the current challenge to established Kenyan
principles on the law of succession is that they have to be reshaped to align themselves
with the provisions of our supreme law.106

It has been suggested elsewhere that the Kenyan Constitution is feminist by design.107 This
is because an ambitious Bill of Rights108contains specific gains in relation to women’s
rights. The Constitution also establishes a set of values and principles trumping any
discriminatory law, practice or action including customary African law.109 Affirmative
action measures compensate for historical inequality and discrimination which is an
important victory for women.110 It also has strengthened judicial review that women rights
activists actively lobbied for.111 In total, the Constitution potentially provides an enabling
environment for the realisation and protection of women’s rights as well as gender equality
principles. Consequently, feminist legal theory is a valuable means through which existing
statutes can be tested to see if they have been aligned with the Constitution of Kenya 2010.

106
CCK & 5 ors v Royal Media Services Ltd & 5 ors [2014] eKLR [CCK petition] pp 197
107
P Domingo et al (eds) Women and Power :Shaping the development of the 2010 Kenyan
Constitution.(2016)pg.8(Domingo 2016):online at [Link] R Aura-Odhiambo and M
Oduor(eds) Gender Equality(2011) in PLO Lumumba et al (eds)The Constitution of Kenya: Contemporary
Readings, (Nairobi: Law Africa,2011) pgs.99-151(PLO 2011)
108
Chapter IV, Constitution of Kenya 2010
109
Domingo 2016
110
ibid
111
ibid

12

Electronic copy available at: [Link]

The principles of equality and non-discrimination are ‘woven throughout the Constitution,
driven at least in part by a desire to counteract the ethnic and regional tensions which
played such a decisive and destructive role in the 2007 post-election violence.’112 The right
to equality and non-discrimination as expressed in Article 27 of the Constitution of Kenya
2010 represents a substantial improvement on the right as provided in Article 82 of the
previous Constitution.113Article 27 has been interpreted along with Article 10(2)(b) of our
Constitution by our superior courts of record to mean that laws or an exercise of public or
private power in a manner that discriminates against women are unconstitutional.114After
the constitutional landscape changed on 27th August 2010, amendments were later made
in 2015115however, widows are in some instances ,unconstitutionally denied the
opportunity to inherit the matrimonial home.

OPPORTUNITIES FOR LAW REFORM.

Customary law is only applicable in domestic intestate succession when the deceased is
an indigenous African or a Hindu.116African and Hindu systems of customary law are
grounded in the principle of male progenitor.117This principle is premised on the idea that
land is only inherited by men related to each other by blood.118 In Hindu customary law,
all land is held collectively by the men of the family in undivided shares. Among these
men, the eldest among them plays the role of manager of the jointly held family

112
J Fitzgerald, The Road to Equality? The Right to Equality in Kenya’s New Constitution (The Equal Rights
Review, Vol. 5 ,2010) pg 55-69(Fitzgerald 2010)
113
ibid
114
CREAW and 8 Ors v AG and Anr[2012]eKLR[CREAW No2]: CREAW and 7 Ors v AG and Anr
[2011]eKLR[CREAW No1]: Milka Adhiambo Otieno and Anr v The Attorney General and Another [2011]KeHC
Pet No 33 of 2011(Unrptd)[Adhiambo Otieno]:NGEC v IEBC and 5 Others, [2013] KeHC Pet No 147 of
2013(Unrptd)[NGEC]: FIDA(K) and 5 Ors v AG and JSC [2011]KeHC Pet No 102 of 2011(Unrptd)[FIDA]:
VMK v Cuea [2013] eKLR[Cuea]: Jane Wairimu Macharia v Mugo Waweru and Associates[2012]Industrial
Court Cause No 621 of 2012(Unrptd)[Jane Wairimu]: JAO v NA [2013]eKLR[JAO]: ZWN v PNN
[2012]eKLR[ZWN]:CMN v AWM [2013] eKLR[CMN] : R Aura Odhiambo , JUDICIAL RESPONSES TO
WOMEN RIGHTS VIOLATIONS IN KENYA IN THE POST-2007CONTEXT,(Egerton University ,Faculty
Paper ,2014)pg 10-38(Odhiambo 2014)
115
Law of Succession(Amendment) Act No 26 of 2015
116
S 32 Cap 160: legal Notice No. 94 of 1981: Gukiya Thui & Anr v Kibui Hingi & Anr [2010] eKLR [Gikuya
Thui] per Tunoi, Bosire and Nyamu JJA: Mary Rono v Jane Rono and another [2002] eKLR [ Rono] per Waki
J
117
Cotran 1996 pg. 195-204: A Mayne, A Treatise on Hindu Laws and Usage ,9th edition (New Dehli: Trotter
,1922): V Reddy, Women and Succession Laws in India: A Critical Analysis (IJSL vol 26,2000) 19-289(Reddy
2000)
118
JA Omotola, Illegitimacy in African Customary Law: The battle for Survival of Culture (Indiana Int & Comp
LR, Vol 116 ,2005)

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land.119These undivided shares in land devolve to other members of the coparcenary when
a member of the coparcenary dies.120Consequently, Hindu widows cannot inherit their
matrimonial home121from their dead husbands.122In the African customary law of the
indigenous tribes of Kenya, wives are only entitled to a life interest in the land of her
deceased husband. Therefore, the continued operation of this customary law
exception123in Kenya’s law of inheritance raises fundamental constitutional questions.

The customary law exception in Cap 160 is problematic because contradicts the right to
dignity guaranteed by the Constitution.124This right to dignity has been described as the
‘foundation of all fundamental rights’125because along with the right to life, it is from it
that ‘all other human rights enjoyed by human beings flow from.’126 The term ‘human
dignity’ denotes ‘the state of being worthy of respect.’127In the context of inheritance law,
this means treating a widow with respect simply because they are human
beings.128Denying a widow the right to inherit her matrimonial home is problematic
especially in rural areas where it usually sits on the same parcel of land a wife labours on
for the benefit of her family. This labour is geared towards agriculture to feed her
family.129Denying a widow the right to inherit her matrimonial home and the land it sits

119
Ponnappa Pillai v Pappu Vayyangar [1881]4 Mod.1,32[Ponnappa Pillai] Aiyar J said inter alia that a Hindu
family is ‘a corporate body that its landed property is a fund necessary for its sustenance and no father is
competent to alienate it.’
120
ibid
121
Balwant Singh v Rani Kishori [1897] 25 I A 54[Balwant Singh]: Arunchala Mudaliar v Muruganatha Mudaliar
[1953] AIR 495(SC) [ Arunchala Mudaliar] per Mukerjea J
122

widow to a limited share of her deceased husband’s share in his family’s joint property : Hindu Succession
The Hindu Womens Rights to Property Act of 1937 stepped in to rectify this problem by entitling a

husband’s brothers and her son however, the Act also gave husbands unlimited testamentary freedom
Act of 1956 abolished the limited estates of widows and gave them primary heirs along with their

which allows men to sidestep the provisions of the Act by disinheriting his wife and his daughters: This
Act was amended in 2005 by Hindu Succession (Amendment) Act of 2005.
123
Re Estate of M’Richuni (Deceased) [2002] Succession Cause 198 of 2002(Unrpt) [Estate M’Richuni] per
Emukule J
124
Art 28 COK
125
Peter Njogu & 2 Ors v Ag & 2 ors [2017] eKLR [Peter Njongu]
126
JWI v Standard Group Ltd and Anr [2015] eKLR [JWI] per Lenaola J at pp 27-pp28: VMK v Cuea [2013]
eKLR [Cuea] per Nduma J
127
American Heritage dictionaries(eds) The American Heritage Dictionary of the English Language 4th edition
(,2000) pg.50
128
ibid
129
J Smith et al (eds) Women’s Land and Property Rights in Kenya-Moving forward into a New Era of Equality: A
Human Rights Report and Proposed Legislation (Georgetown J Inter. L Vol 40 ,2009) pg.6(Smith et al 2009)

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on creates the possibility that she may slip into poverty.130This state of poverty militates
against the right to dignity guaranteed by our Bill of Rights.131

The customary law exception in Cap 160 contradicts the idea of a supreme Constitution
and its prohibitions against discrimination on the basis of gender.132This idea of
constitutional supremacy has its origins in American constitutional law. 133Its entire
premise is that the Constitution of a country sits at the pinnacle of all other formal sources
of law (such as statutes and ratified treaties) that are enforced by a nation’s legal
system.134Consequently, it is only formal sources of law that do not contradict a
Constitution that are legitimate and capable of being enforced.135 The Kenyan Constitution
directs that it is an only customary law that is not inconsistent with the it that is capable
of being enforced.136Customary land inheritance norms are grounded on the principle of
male progeniture that have subsequently been declared as unconstitutional for denying
daughters the right to inherit land.137 This is because these customary norms contradict the
protection women are entitled to against discrimination on the basis of their gender.138A
statutory provision that purports to exclude agricultural land, livestock and crops from its
rules of intestate succession is thus unconstitutional. This is because this exception was
put in place to circumvent the principles of English succession law which give widows
priority in intestate succession ahead of her male in-laws in the manner customary law
does.139

130
ibid
131
ibid
132
Art 2 (1) COK: Art 27 COK
133
CCK [2014
134
BL Paulson and SL Paulson (eds) Introduction to the problems of legal theory: A Translation of the First
Edition of the Pure Theory of Law (London: Claredon,1992) pg.57
135
ibid
136
Art 2(4) COK
137
Omotola 2005
138
Art 27 (4)(5) COK
139
S39 Cap 160: S 66 Cap 160: Re: Estate of Stanley Franklin Habwe [2002] eKLR[Habwe]: Kibiego [1972]

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The Constitution,140Marriage Act,141Land Act142 and Matrimonial Property Act143make the
marital home community borum.144Once acquired, a spouse automatically becomes a joint
owner of the matrimonial [Link], when a husband dies, the wife should
automatically inherit the matrimonial home.145 This is because it is a fundamental feature
of the community borum system of matrimonial property is that the spouse who buys the
family home doesn’t have the absolute power to alienate it as they please even though they
are the registered owner of title.146As things stand right now, there is a statutory conflict
between Cap 160’s intent to replicate the African customary law position that widows only
get a life interest in real property that extinguishes upon remarriage147and land law
legislation that makes the matrimonial home community borum.148

Idealy,when a man and woman have cohabitated continuously for over five years, the
woman should be a presumed wife if she sires the man a child and the man dies
intestate’s.149 Alternatively, if the couple had adopted a non-biological child, the female
cohabitee should be considered a wife for the purposes of intestate
succession.150Consequently, the presumed marriage arising out of long cohabitation and
the presence of parental responsibility donates to a presumed wife the right to inherit a
matrimonial home from her intestate presumed husband.151Subsequently, she has first
priority in the grant of the letters of administration by Probate Court.152A huddle that needs
to be addressed through statutory intervention before a cohabitee is presumed a wife for

140
Art 27 COK: Art 45(3) COK
141
S3(2) MA 2014
142
S79(1)(3): S 105 Land Act No6 of 2012(LA 2012)
143
No 49 of 2013(MPA 2013)
144
WQ de Funiak, Cases and Material on Community property (1947) cited in K Juma and C
Kanjama(eds)Family Law Digest (Nairobi:Law AFR,2002) pg. 1(Juma and Kanjama 2002): Community
Borum is a system of law that says all property acquired before ,during and at the end of a marriage belong
to both spouses [Link], any disposition of real property needs the consent of both spouses:
Muthembwa [2002]
145
Cooke 2006: S30-41 Family Law Act of 1996 (FLA 1996)
146
WQ de Funiak, Cases and Material on Community property (1947) in Juma and Kanjama 2009:
147
S 36 Cap 160 conflicts with a widow’s right to remarry under S 15 of MA 2014
148
S12 MPA 2013
149
Hottensia Wanjiku Yaweh v Public Trustee [1976]EACA No.13 of 196[Hottensia Yaweh ]: Anna Munini &
Anr v Margaret Nzambi [1977]Civ Case No 751 of 1977(Unrptd)[ Anna Munini]: Samuel Nderi Gathambo and
Anr v Samuel Muthui Munene [2003] eKLR [Gathambo]per Hayanga J : Jedida Ndunda v Rael Mutunge [2015]
eKLR[Jedida]
150
Childrens Act No.8 of 2001(CA 2001)
151
Jedida [2015]
152
ibid

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the purposes of intestate succession is the absence of an express recognition of presumed
marriages in MA 2014.153 Since Cap 160 excludes women in presumed marriages from its
definition of a ‘wife’ or ‘dependant’154for the purposes of intestate succession, the blood
relations of an intestate male cohabitee may challenge the presumption of marriage in
order to climb up the statutory ladder of priority. This produces lengthy litigation over the
grant of probate and related matters in Kenya’s inheritance law.

153
Marriage Act No 4 of 2014(MA 2014)
154
S2 Cap 160 when S26 Cap 160: Mary Jeptoo Kiptoo v Philis Kombelei & Anr [2014] eKLR [Jeptoo Kiptoo]
per Macharia J (for the purposes of succession, all wives including the divorced wife of the deceased are a
‘wife’ and hence divorced wives have an equal right with the deceased’s subsequent wife regarding
petitioning Probate Court for letters of administration in intestacy)

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