THE UNIVERSITY OF NAIROBI, SCHOOL OF LAW

GROUP 2 MODULE II DAY CAT ASSIGNMENT.

COURSE:WOMEN IN THE LEGAL PROCESS

COURSE CODE:GPR 3407

TOPIC:THE ROLE OF LAW IN ADRESSING GENDER

DISCRIMINATIONS: FAMILY RELATIONS

GROUP MEMBERS

1. Nabangi Lena_ G34/142206/2021- [email protected]

2. Aben Davis Mogeni_ G34/142199/2021

3. Agnes Wambui Wangari-G34/143333/2021

4. Mitchelle Mulengeka Mmbwanga- G34/143383/2021

5. Burnice Wairimu Maina - G34/141991/2021

6. Ardo Mohamed Sheikh - G34/143360/2021

7. Phionah Mawili - G34/143055/2021

8. Mercy Neshoe Simitia -G34/143248/2021

9. Joylyan Achieng Ponde- G34/142238/2021

10. Suzanne Bosibori Ombui-G34/142187/2021

11. Wamutu Jacob - G34/143010/2021

12. Muriuki Angela Gathigia—G34/142656/2021

CONTENTS:

1.0 INTRODUCTION ON GENDER DISCRIMINATION ON FAMILY

RELATIONS

2.0 ROLE OF THE LAW IN ADRESSING GENDER DISCRIMINATION IN

FAMILY RELATIONS

2.1 MARRIAGE LAWS

2.1.1 CONSENT AND RIGHT TO MARRY

2.1.2 FORCED AND CHILD MARRAIGES

2.1.3 POLYGAMY

2.2 PERSONAL SAFETY AND GENDER BASED VIOLENCE

2.2.1 DOMESTIC VIOLENCE AND SEXUAL ABUSE

2.2.2 MARITAL RAPE

2.2.3 FORCED CIRCUMCISION

2.3 DIVORCE AND DIVISION OF MATRIMONIAL PROPERTY

2.3.1 DIVORCE AND RIGHT TO DIVORCE

2.3.2 DIVISION OF MATRIMONIAL PROPERTY UPON DIVORCE

2.4 INHERITANCE AND SUCESSION

2.5RIGHTS AND RESPONSIBILITIES OVER CHILDREN AND CUSTODY

BATTLES

3.0 RECOMMENDATIONS

4.0 OTHER RECOMMENDATIONS

5.0 CONCLUSION

1.0 INTRODUCTION

Gender Discrimination refers to the unequal or unfair treatment of individuals or

groups based on their gender, often rooted in societal norms, stereotypes, or power
imbalances.

Gender discrimination within family relations remains a pervasive global challenge,

undermining the principles of equality, dignity, and justice that form the bedrock of
human rights. Rooted in entrenched cultural norms, patriarchal structures, and
unequal power dynamics, such discrimination manifests in myriad forms ranging
from unequal inheritance rights and marital property disparities to discriminatory
custody laws and gendered expectations in care giving roles. These inequities not only
1
violate fundamental human rights but also perpetuate cycles of social and economic
disadvantage, particularly for women.

2.0 ROLE OF THE LAW IN ADRESSING GENDER DISCRIMINATION IN

FAMILY RELATIONS

2.1 Marriage Laws

The Constitution provides for the equal rights of parties to a marriage at the time of
the marriage, during the marriage and at the dissolution of the marriage 2. It also
advocates for equality before the law where everyone has the right to equal protection
and equal benefit of the law 3.It also prohibits all forms of discrimination against a

1
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (adopted 18 December
1979, entered into force 3 September 1981) 1249 UNTS 13

2
Article 45(3) of the Constitution of Kenya ,2010

3
Article 27 of the COK,2010
person on grounds such as sex4. 5
Article 28 provides for human dignity where
everyone has inherent dignity and has the right to have that dignity respected and
6
protected. Article 29 provides for the freedom and the security of a person where
everyone has a right not to be subjected to: any form of violence, torture in any
manner, or to be treated or punished in a cruel, inhuman or degrading manner.

2.1.1 Consent and the right to marry

Consent is a fundamental element of marriage. Women have a right, on an equal basis

with men, “freely to choose a spouse and to enter into marriage only with their free
and full consent”7. The Maputo Protocol guarantees that no marriage shall take place
without the free and full consent of both parties 8 and the Constitution provides that,
“Every adult has the right to marry a person of the opposite sex, based on the free
consent of the parties9”.

The Marriage Act 2014 defines marriage as a voluntary union 10 Societal pressures,
cultural expectations, and family coercion often undermine genuine consent. 11 Chinua
Achebe’s Things Fall Apart depicts marriage as a transaction where women's consent
is secondary to male authority In AOW v GMK [2011] eKLR, the court annulled a
marriage where evidence showed lack of consent, reinforcing that consent must be
free and full12.

Section 5 of the Kadhis’ Court Act (Cap 11)13 gives Kadhis’ courts jurisdiction over
personal matters of Muslim parties. The impact of section 49(3) of these provisions is
that Muslim women are excluded from the benefits guaranteed under the Constitution
4
ibid
5
The constitution of Kenya,2010
6
Ibid
7
Article 16(1) (b), CEDAW.
8

9
Articles 45(2) of the c.o.k.,2010
10
Marriage Act 2014 (Kenya), s 3(2).
11
Chinua Achebe, *Things Fall Apart* (Heinemann 1958)
12
AOW v GMK [2011] eKLR
13
Kadhis’ Court Act (Chapter 11), Laws of Kenya.
and the Marriage Act, 2014, which recognize the equality of men and women in
marriage. This means that Muslim women are governed by sharia law, which
occasions discrimination in marriage.14

2.1.2.Child marriages and forced marriages

The CEDAW Committee has observed that “a woman’s right to choose a spouse and
enter freely into marriage is central to her life and to her dignity and equality as a
human being”15.

Kenya has come up with legislation to curb child marriages as seen in the Sexual
Offences Act16, the Marriage Act17 where section 4 prescribes the minimum age of
marriage as eighteen and the Children’s Act18.The Maputo Protocol guarantees that no
marriage shall take place without the free and full consent of both parties and that the
minimum age of marriage for women shall be 18 years 19. Section 4 of the marriage
act expressly stipulates that: “A person shall not marry unless that person has attained
the age of eighteen years.” In fact, the Act recognizes that marriages contracted with a
person below the minimum age of marriage are void. 20 This is consistent with Article
16(2) of CEDAW, which recognizes that betrothal and the marriage of a child shall
have no legal effect. It is an offence to marry a person below the age of 18 years with
a prescribed imprisonment term of five years or a fine not exceeding Ksh 1 million.21

However, in as much as there are vast legal reforms protecting the female gender from
harmful practices, some communities which are deeply rooted to their traditions, still
subject their girls to early marriages making it evident that these laws are not
effectively implemented to protect girls. Child marriage has been associated with;
polygamous marriage, increased school drop-out rates and high adolescent and

14
Samia Bano, “In pursuit of religious and legal diversity: a response to the Archbishop of Canterbury and the
‘Sharia debate’ in Britain”, Ecclesiastical Law Journal 10 (2008) p. 283.
15
CEDAW Committee, General Recommendation 21 on equality in marriage and family relations (1994), para. 16
16
Sexual Offences Act, No. 3 of 2006
17
Section 11, Marriage Act, CAP 150
18
Children’s Act, No. 29 of 2022
19
Article 6(a) and (b), Maputo Protocol.
20
Section 11(1) (a), Marriage Act, 2014.
21
Section 87, Marriage Act, 2014.
maternal mortality.22 Female Genital Mutilation (FGM), although banned in Kenya, is
considered as a rite of passage in certain communities which is closely linked to early
marriages where girls who have undergone this practice, notwithstanding their young
age, are viewed as ready for marriage thereby giving rise to child brides. Statistics
have shown that amongst urban women aged 25 - 49 years, at least 30 percent of them
got married before attaining age 18 and in the rural and marginalized areas the
proportion was above 50 percent.23

2.1.3 Polygamy

Ngũgĩ wa Thiong'o’s The River Between portrays how polygamy constrains women’s
agency24 In SMW v MGS [2015] eKLR, the court emphasized the importance of
protecting women's rights in polygamous settings25.

2.2 Personal Safety and Gender Issues

The Penal Code awards the liability, trial or punishment of a person for any offence
against the common law or against any other law in Kenya hence plays a major role in
addressing gender discrimination in personal safety by criminalizing offences based
on Gender-based violence (GBV), including rape, female genital mutilation (FGM),
and intimate partner violence.

2.2.1 Domestic Violence and sexual abuse

The Protection Against Domestic Violence Act seeks to provide for the protection and
relief of the victims of domestic violence. It also provides mechanisms for victims to
seek protection orders and legal redress. The act also seeks to protect victims of
domestic violence by giving them freedom to apply to the court for a protection order
in respect of that other person26.

22
Collaborating Organizations: Population Studies and Research Institute, National Council for Population and
Development, UNFPA ‘Youth: Curbing Early Marriage Improves their Prospects’ Policy Brief No. 37 September
2013
23
2008-09 Kenya Demographic and Health Survey
24
Ngũgĩ wa Thiong'o, *The River Between* (Heinemann 1965)
25
SMW v MGS [2015] eKLR.

26
Protection Against Domestic Violence Act, CAP 151, section 8
In the case of C.K( a child) & 11 others v Commissioner of Police/ Inspector
General of the National Police Service & 2 Others [2012] eKLR a group of young
girls, aged between 5 and 15 years, were challenging the government on its inaction
regarding the sexual abuse of children. The girls were on diverse dates between the
year 2008 and 2012 victims of defilement and other forms of Sexual violence and
child abuse. They had reported their complaints at various police stations within Meru
County, however, the police officers at those various Police Stations neglected,
omitted, refused, and failed to conduct prompt, effective and proper investigations
into the petitioners’ complaints. They also failed to or visit the crime scenes or
interview the witnesses or collect and preserve evidence. As a result of the police
officers’ neglect, refusal and failure, the petitioners contended that they suffered grave
unspeakable and immeasurable physical and physiological trauma and that the
perpetrators of the aforesaid unlawful acts were able to roam freely and continued to
threaten the physical and psychological well being of the petitioners. The judge held
that the neglect, omission, refusal and/or failure of the police to conduct prompt,
effective, proper and professional investigations into the first eleven petitioners’
complaints of defilement violates the first eleven petitioner’s fundamental rights and
freedoms.

2.2.2 Marital rape

Martial rape refers to any non-consensual sexual acts committed by a spouse. Such an
offence occurs when the victim, who is the spouse, is unable to consent, is forced or
threatened. In Kenya, the Sexual Offences Act does not recognize the offence of
marital rape; in fact, it provides for an exemption under section 43(5). As a result,
women in marriages who suffer from domestic violence and marital rape seem to have
no recourse.27

In the context of SGBV, there are arguments that a husband cannot possibly rape his
wife where the covenant of marriage exists. Within the African setting, women are
viewed as subordinate to men and are not entirely entitled to their own bodies upon
marriage. This gives rise to the misconception that they can be subjected to whatever
act the other spouse deems fit in the performance of their wifely ‘duties.’ This means
that whenever men feel entitled to sex and are denied, then they are allowed to take it
27
International Commission of Jurists(ICJ), ‘Making Rape In Marriage A Crime Can Boost SGBV War’,
December 13, 2023
however and whenever, therefore breeding a ground for abuse and violence, in
marriages28.

2.2.3 Forced Circumcision (FGM)

In the national review, 2020, the Government of Kenya acknowledged medicalization

of the practice and cross-border female genital mutilation as some of the hindrances to
realizing Sustainable Development Goal 29 .

Article 29 provides the right not to be subjected to any form of violence from either
public or private sources30 or treated or punished in a cruel, inhuman or degrading
manner.31 Article 44(3) states that a person shall not compel another person to
perform, observe or undergo any cultural practice or rite. In addition, Article 53(1) (d)
protects every child from abuse, neglect, harmful cultural practices and all forms of
violence, inhuman treatment and punishment. The Prohibition of Female Genital
Mutilation Act, 2011 stipulates harsh sentences for those who are convicted, including
a prison term of not less than three years or a fine of not less than Ksh 200,000. The
penalty is life imprisonment where a crime of female genital mutilation results in the
death of the victim.32

The CEDAW Committee’s General Recommendation on harmful practices, jointly

prepared with the Committee on the Rights of the Child,33 elaborates on the duties of
State parties under CEDAW and the Convention on the Rights of the Child to
eradicate gender-based violence against women and violence against children,
including female genital mutilation34 .The CEDAW Committee called on Kenya

28
Ibid
29
Second Voluntary National Review on the Implementation of the Sustainable Development Goals (June 2020) p.
51.
30
Article 29(c), Constitution of Kenya, 2010.
31
Article 29(f), Constitution of Kenya, 2010
32
Section 19(2), Prohibition of Female Genital Mutilation Act, 2011
33
Joint General Recommendation 31 of the CEDAW Committee/General Comment 18 of the Committee on the
Rights of the Child on harmful practices (2014)
34
Ibid. para. 31.
to:Ensure that the Prohibition of Female Genital Mutilation Act is widely known and
implemented, and that perpetrators of female genital mutilation, including medical
practitioners, are prosecuted and adequately punished, take measures to eradicate
female genital mutilation, and to update the 2010 female genital mutilation policy35

Section 3 of the Act establishes the Anti-Female Genital Mutilation Board with the
mandate to, inter alia, design, supervise and co-ordinate public awareness
programmes against the practice of female genital mutilation and design programmes
aimed at eradication of female genital mutilation.36

Article 5 of the Maputo Protocol calls on states to prohibit and condemn all forms of
harmful practices which negatively affect the human rights of women and to take all
necessary legislative and other measures to eliminate such practices through
legislative measures backed by sanctions, of all forms of female genital mutilation,
scarification, medicalisation and para-medicalisation of female genital mutilation and
all other practices in order to eradicate them.

A petition was filed in the High Court seeking to legalize female genital mutilation.
One of the grounds advanced for the petition was the right of willing adult women to
participate and enjoy their culture. The court dismissed this argument.

Prohibition of Female Genital Mutilation Act prohibits the practice of female genital
mutilation, so as to safeguard against violation of a person’s mental or physical
integrity through the practice of female genital mutilation and for connected purposes.

A worthy move, Kenya recently adopted the revised National Policy on the
Eradication of Female Genital Mutilation, 2019. 37 The Policy aims, inter alia “to
strengthen multi-sectoral coordination and networking, partnership and community
participation towards eradication of FGM”.

2.3 Divorce and Division of Matrimonial Property

35
Ibid, para. 21
36
Section 5(a)(e), Prohibition of Female Genital Mutilation Act, 2011
37
Kenya, Ministry of Public Service, Youth and Gender, National Policy for the Eradication of Female Genital
Mutilation, 2019, Sessional paper No. 3 of 2019
The Marriage Act, under section 3(2), provides that parties to a marriage have equal
rights and obligations at the time of the marriage, during the marriage and at the
dissolution of the marriage38

2.3.1 Right to divorce and Divorce

Justice Martha Koome , interpreting the The Marriage Act, in Civil Appeal No. 81 of
2017-"The Marriage Act must be interpreted in light of constitutional principles of
equality, non-discrimination, and protection of marginalized groups. " (Para. 25).
Where the act authorizes divorce on the grounds that the marriage is irretrievably
broken down39, recognizes customary marriages and divorce procedures40, prescribes
no-fault divorce for civil marriages after the 3-year period of separation 41 and
acknowledges the customary divorce procedures while under the authority of the
constitutional principles.
The constitution42 makes an unequivocal declaration that "parties to a marriage are
entitled to equal rights at the time of the marriage, during the marriage and at the
dissolution of the marriage.
The legacy of the colonial legal system introduced British matrimonial laws, which
were inherently patriarchal and put a dual system in place that formed formed divorce
regimes based on fault that were frequently prejudiced to women which engraved the
gender disparities into legal constitutions via laws such as the Marriage Act (Cap 150)

43
The State's Constitution has a provision for the Kadhi's courts , which are the
tribunals with Muslim law jurisdiction, including the power to hear divorce matters.
Marriage and Divorce Act directly discriminates in the provisions on marital age,
allowing marriage of women at 16, compared to 18 for men44.

2.3.2 Division of matrimonial property

38
The marriage act cap 150
39
The Marriage Act 2014 section 66
40
The Marriage Act 2014 section 43
41
The Marriage Act 2014 section 68
42
CoK article 45
43
CoK article section 170
44
Section 30 of the matrimonial clause
Prior to 2013, the division of matrimonial property after the dissolution of a union,
was discriminatory towards women. This is because the courts were guided by the
colonial English Married Women’s Property Act. In Echaria45, it was held that a
spouse did not acquire any beneficial interest in matrimonial property by fact of being
married only and that specific contribution had to be ascertained to entitle such a
spouse to a specific share of the property.
In Mary Rono v Jane Rono (200546), the Court of Appeal decided that the customary
inheritance practices that were discriminatory towards women should give way to the
constitutional equality provisions where the constitution advocates for equal rights
during marriage and at the dissolution, however, certain legislations do not advocate
for equality.47

Section 4 of the Act provides for the equal status of spouses where a married woman
has the same rights as a married man48. Section 7 of the Act provides for the
ownership and division of matrimonial property upon divorce or dissolution according
to contribution, which, according to sec 2 of the Act can be : Domestic work,
management of the matrimonial home,childcare, companionship, management of
family business or property and farm work, This provision, according to Justice
Mativo in the case of Federation of Women Lawyers Kenya (FIDA) v Attorney
General & another49, addresses the greatest injustice which was the failure to reward
or recognize a spouse whose contribution to the family was through being a
homemaker, performing household chores, bearing children and raising children or a
spouse who used his or her resources for the day today subsistence requirements of
the family and thereby deprived himself or herself of the opportunity of acquiring
durable property.

45
Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR
46
Mary Rono v Jane Rono & another [2005] eKLR Civil Appeal 66 of 2002
47
Article 45(3) of the constituion of Kenya,2010
48
ibid

49
Federation of Women Lawyers Kenya (FIDA) v Attorney General & another
[2018] KEHC 7130 (KLR)
In the case of UMM v IMM (201450) , the court used the clause in the matrimonial
property act 51 to recognize the wife's non-monetary contributions to family wealth.

In the case of Anne Mumbi Hinga v Peter Gachau Hinga (2017), the first wife,
sought a share of her ex-husband’s estate, arguing she contributed through domestic
work, childcare, and supporting his career even though the properties were registered
under his name52. The court affirmed that non-monetary contributions have equal
value to financial input under the Matrimonial Property Act (2013)

In the case of Agnes Nanjala William vs Jacob Petrus Nicolas Vander Goes 53, where
the Court of Appeal observed that Article 45(3) of the Constitution gives parties to a
marriage equal rights before, during and after a marriage. Article 60(1)(f) provides for
the elimination of gender discrimination in law, customs and practices related to land
and property in land.

In the case of Kivuitu v Kivuitu case (1991) eKLR 248, the court established a
presumption that when property is jointly registered in the names of both spouses,
each spouse owns an equal, undivided share in that property.

Divorce restrictions are binding sites for the subordination of women which
exacerbate gender inequalities and discrimination. 54 A good example is the
Matrimonial Property Act55 which focuses on division of matrimonial property
according to contribution and the burden of proof is often disadvantageous to women
who are unable to prove their non-monetary contributions.

2.4 Discrimination on Inheritance and Succession

From discriminatory provisions in the Law of Succession Act to unequal entitlements

under Islamic Sharia law to customary norms, women are placed as outsiders in their

50
U M M v I M M (Civil Suit 39 of 2012)
51
TheMatrimonial Property Act 2013 section 7. section 2 , section 14

52
Anne Mumbi Hinga v Peter Gachau Hinga (2017)eKLR
53
Agnes Nanjala William vs Jacob Petrus Nicolas Vander Goes, Civil Appeal No. 127 of 2011
54
Karin Carmit Yefet, ‘Divorce As A Formal Gender-Equality Right’ Journal Of Constitutional Law (2020) Vol 22:3
55
Matrimonial Property Act, CAP 152 section 7
own families. Women have historically and structurally been disadvantaged in family
inheritance, highlighting the gaps between law and practice and advocating for
transformative reforms that truly honour the spirit of equality enshrined in Kenya's
2010 constitution.

The law of succession act has often failed to adequately protect women’s
inheritance rights as it 56allows for the application of customary law in certain areas,
leading to the exclusion of women especially daughters and widows from inheriting
land and livestock. In the cases of Re Ruenji57 and Re ogolla58, the respective testators
drew wills that did not Carter for their customary wives and the court held that these
wives were not wives for the purposes of succession.
The position of customary wives was codified in Sec 3(5) of the law of succession
Act. According to section 3(5) of succession Act, a woman married to a man under a
system that allows polygamy is a wife for succession purposes under sections 26 and
40 of the Act despite the fact that the Husband may have contracted prior or
subsequent monogamous marriage59. In Peter Kirara Kuria & Another v Hannah
Nyambura Kuria [2004] eKLR, the court boldly refused to uphold Kikuyu customary
law that excluded a married daughter from inheriting her father’s land. The petitioners
relied on the earlier case of Wambugu w/o Gatimu v Stephen Nyaga Kimani , justice
Musinga rejected that precedent, emphasizing that Section 40(1) of the Law of
Succession Act treats sons and daughters equally in polygamous succession. The court
clarified that being a married woman did not strip one of inheritance rights, especially
when she had resettled on her father’s land after widowhood. This progressive
interpretation respected both Section 3 of the Act and Article 27 of the Constitution,
which prohibits gender discrimination.

However, some courts still fail to meet this provision as seen in the case of
WAMBUGU W/O GATIMU VS STEPHEN NYAGA KIMANI (1992) 2 KAR 292
where the Courts of Appeal took the judicial notice of a Kikuyu custom which stated
that a married woman cannot inherit her father’s land and in turn the woman was

56
Section 32 and 33 of the law of suceesion act
57
Re Ruenji’s Estate (1977) EA 21
58
Ogola’s Estate (1978) EA 21
59
The law of sucession Act
denied access to such inheritance on the basis that courts have the power to take
judicial notice of all written and unwritten laws as per Section 60(1)(a) and Section
60(1)(o) of the Evidence Act .

One of the most striking illustrations of the injustice women face under customary
inheritance systems is captured in the words of a woman quoted in the Equal Rights
Trust report In the Spirit of Harambee60: “My brother inherited the land, yet I was
the one who took care of our father in his final days.”

Under Islamic Sharia law (Sunni tradition), the rules of inheritance are strictly
prescribed in the Qur’an, particularly in Surah An-Nisa61. These rules are considered
divine and immutable, meaning no human authority can alter them. Sharia law does
guarantee women a share of inheritance but that share is often unequal compared to
men’s. For instance: A daughter inherits half the share of a son, a wife inherits one-
eighth of her husband’s estate (if they have children), or one-quarter (if there are no
children) , a mother inherits one-sixth, and so on.

2.5 Rights and Responsibilities over Children and Custody Battles.

The Constitution of Kenya article 27, article 53(2), the Children's Act 2022 and the
Maputo protocol62 champion for equality for both parents in terms of parental
responsibility for a child, whether married or not. Both parents have no claim or right
over the other parent. The Marriage Act, 201463 calls for equality of spouses during
marriage or when divorcing.

Section 32 of the Children's Act, 202264 provides that the mother automatically has the
advantage of parental responsibility. The father can only attain parental responsibility
after he has resided with the mother for at least 12 months, maintained the child,
acknowledged paternity in any form, entered into a parental responsibility agreement
with the mother or by getting a court order. The mother automatically being assigned

60
Equal Rights Trust, In the Spirit of Harambee: Addressing Discrimination and Inequality in Kenya (2012)
61
Quran Chapter 4
62
Article 7( c) of the Maputo protocol,

63
The Marriage Act, 2014
64
Children's Act 2022 section 32
parental custody, establishes a clear picture of gender discrimination, leaving only the
father to seek for legal aid to acquire parental responsibility.

In the case of E W G v J M N & another [2017] KEHC 688 (KLR)65,the plaintiff

challenged the Births and Death Registration Act, claiming that it was discriminatory
because as a requirement the birth certificate could not contain the father's name
unless it was jointly requested by both parents or the parents had to be married.
Nakuru's High Court examined whether the given provision violated the legal
frameworks of equality and non-discrimination.

Socio-economic differences nurture gender discrimination. Women, who earn poor

salaries or are stay at home mothers, might be seen financially deprived, which means
unstable homes for children. This influences the court's decisions despite their caring
and nurturing nature.

In virtue of Separation and Maintenance Act66, a woman is entitled to maintenance

for herself and children from her husband, however the marriage has to be
monogamous which disadvantages the woman if the man was polygamous.

The "tender years doctrine," which presumes that mothers should have custody of
young children unless proven unfit, inherently perpetuates gender discrimination by
favoring women over men in family law. This principle, prioritizes maternal custody
based on traditional gender roles, often sidelining capable fathers and undermining
their parental rights. Critics argue it reinforces stereotypes that mothers are inherently
better caregivers, placing responsible fathers at a disadvantage. While intended to
serve the child’s best interests, its application can overlook paternal contributions. For
instance, in 67HKM v DMA [Civil Appeal 136 of 2011], Kisii High Court prioritized
the child’s welfare and stability over the tender years doctrine, granting custody to the
respondent despite the appellant’s parental rights claim, highlighting the need to
balance child-centric principles with gender-neutral considerations to ensure equitable
custody outcomes.

65
EWG v JMN & another [2017] KEHC 688 (KLR)
66
Cap 176
67
HKM v DMA ( Civil Appeal 136 of 2011)
3.0 RECOMMENDATIONS
In regards to divorce laws and division of matrimonial property:

There is need to repeal section 7 of the Matrimonial Property Act, in order to

restore the equal division of property upon divorce, another section that has a similar
approach to Article 45(3) of the Constitution of Kenya should be introduced. The
CEDAW provisions should include in order to give equal value to both monetary and
none-monetary contributed to either of the parties.

Section 10 of the Act should be emended in that any liability by one of the spouses
on the matrimonial property should be valued at the spouse’s’ contribution to the
given liability.

Substantive Equality Approach: From formal to substantive equality by changing the

way of property division: adopting a presumption of equal sharing rather than a
contribution-based approach

In regard to divorce:

Enforcement Mechanisms: Enforcing payment of alimony by implementing automatic

wage deduction and penalties for non-cooperation

Community Legal Education: Conduct various community legal education programs

similar to FIDA-Kenya to alert women about their rights during divorce

Legal Aid: Ensure the complete execution of the Legal Aid Act 2016 to ensure that
indigent women receive help with their divorce cases

Judicial Training: Develop gender-responsive judicial training to tackle innate biases

in divorce adjudication and hence create a system that is responsive to all needs

In regards to inheritance and succession laws:

Constitutional Supremacy Must Reign Supreme: All personal and customary laws
must be interpreted in light of the Constitution's Articles 2(4) and 27, which prohibit
any law or practice that discriminates based on gender. Courts should apply the
Constitution boldly, even when confronted with deeply held traditions or religious
norms.

Amendment of The Law of Succession Act : The Law of Succession Act, while
progressive in some areas, still leaves gaps that disadvantage women, particularly in
polygamous settings. Section 3(5)68 recognizes customary wives, but it remains
unclear how estates are divided among children of different unions. Daughters
frequently face discrimination, despite the Act's neutral language. Amendments
should clearly state equal rights for all children, regardless of gender or marital status.

Reforming Sharia law : Reforming Kadhi’s Courts is essential to ensure that their
application of Islamic law aligns with the principles of equality and justice enshrined
in the Constitution. While Sharia law, particularly Sunni interpretation, often
prescribes unequal inheritance shares between men and women, progressive Islamic
thought offers space for reinterpretation through ijtihad (independent reasoning).
Countries like Tunisia and Morocco have already embraced reforms that promote
women's rights without abandoning religious values. Kenya can adopt similar
approaches by encouraging gen der-sensitive training for Kadhis and supporting
reinterpretations that reflect the modern economic and social roles of Muslim women.
This balance would honour both faith and fairness.

Gender Mainstreaming: Gender mainstreaming will play a major role in addressing

gender discrimination by ensuring that the concerns of women and men form a
foundation for all policies, laws and administrative procedures. This includes the
implementation, monitoring and evaluation of programmes that implement such policies,
laws and procedures in all political, economic and societal spheres, so as to ensure that
women and men benefit equally, and that inequality is not perpetuated.

In regards to gender based violence

Amend section 19 of the Prohibition of Female Genital Mutilation Act, 2011 to

proscribe all forms of female genital mutilation in line with the judgement of the High
Court in Tatu Kamau v. Attorney General & 2 others.69

68
The Law of Succession Act
69
High Court of Kenya, Tatu Kamau v. Attorney General & 2 others; Equality Now & 9 others (Interested Parties);
Katiba Institute & another (Amicus Curiae) [2021] eKLR, Constitutional Petition No. 244 of 2019.
Amend section 24 of the Act, which provides for the offence of failure to report an act
of female genital mutilation. The section is likely to affect victims of female genital
mutilation for failure to report the offence.

Amend the Act to charge doctors and health workers as well as penalize institutions
that accommodate female genital mutilation on the premises.

Develop offence-specific sentencing guidelines for female genital mutilation to ensure

that sentencing meets the goals of the criminal justice system.

The State should ensure that the Anti-Female Genital Mutilation Board is properly
resourced to effectively carry out its mandate.

The State should also intensify public education and awareness campaigns, especially
in areas where female genital mutilation is prevalent, to encourage change of attitude.
Develop a clear guide on alternative rites of passage.

On custody battles and responsibilities over children

Judges, magistrates, lawyers and other professionals revolving around family law
should all undergo deep and sensitive training on gender equality, the impact of
unconscious bias and how gender dynamics affect parenting. Insights from social
sciences, literature and also the public should be incorporated to the training to
cultivate more understanding of gender discrimination and how to fully attain gender
equality.

Alienating discriminatory family laws out of customary laws can be a starting point.
Where conflicts arise, the principles of child welfare and equality as provided for in
the Constitution should prevail. Co-parenting and Mediation processes can solve these
family cases efficiently and effectively, given that the ADRs mechanism ensures that
the interests of the child are put first. Co-parenting is easier as parents can decide
which system works for them as long as it does not affect any aspect of the child’s life
negatively.

A child's voice in matters of custody is very essential in many cases depending on

their age and maturity level. There should be mechanisms put across to guarantee that
a child's opinion is put into consideration, as required by the UN Convention on the
Rights of the Child.Consider amending the provision of The Children's Act Sec 32
which provides for parental responsibility for unmarried parents, where the woman is
highly advantageous. The provision should be converted into a law that is gender
neutral with no parent having no exceptions. The reforms that can be made include
giving the man an equal chance as the woman, also introducing joint parental
responsibility for unmarried parents and joint registration of birth.

4.0 OTHER RECOMMENDATIONS

Procedural Reforms: Setting off of specialized family courts with simplified

procedures, fee waivers for indigent litigants, and court-annexed legal aid services

Fostering stronger and better collaboration between the arms of government, judiciary
and legislature in particular and civil society organizations working on gender
equality and rights of children to create and apply thorough strategies to fight gender
discrimination in the country. International Conventions and Treaties for example
UNHRC and the Maputo Protocol are a guidance to fostering gender equality in
Kenya.

Promotion of Public Awareness : Many women and victims of gender discrimination

are unaware of their fundamental rights and freedoms as stipulated in the Constitution
and other relevant laws. This make them to continue being subjected to gender
discrimination, gender violence and other forms of inhumane practices which have
been normalized by society. Launching awareness campaigns where women, girls and
even men and boys are educated on gender equality will play a major role in
promoting gender equality, especially in rural and marginalized areas

Codification of Customary Law : Customary laws are mostly unwritten, therefore,

they are open to selective interpretation, which frequently marginalizes women.
Codifying these laws would create a clear legal framework that could be reviewed,
challenged, and compared to constitutional principles. It would help to eliminate
ambiguity and protect women against abuse disguised as tradition. Importantly,
reform must include the removal of patriarchal elements that perpetuate gender
inequality. Women must actively participate in the codification process to ensure their
lived realities and voices are represented. This opens up space for justice and fairness
within culturally rooted systems.
Harmonization of Customary and Statutory Laws: In order to address gender
discrimination, the state can ensure that it does away with negative cultural norms
practices and ensure that the customary laws align with the constitutional principles
of equality.

5.0 CONCLUSION

In sum, no person: Woman or man should be left behind just because tradition,
custom, or systemic bias says so. It is wrong that women face discrimination in family
matters like marriage, inheritance, property, or custody. Laws exist to fix this, but they
need stronger action and more awareness to truly work. Kenya can create a fairer
society by pushing for change and ensuring every woman’s rights are respected in
family life.