Judge overturns discriminative cultural practices

In most Kenyan communities’ traditional practices, it is an abomination for a married woman to inherit her father’s land. However, in a recent case the Kenyan High Court declared that the decision by a daughter or a son to get married should not have a bearing when inheriting their parents’ estate.

“There is no justification to deny a married woman a piece of her father’s land on the assumption that married daughters should forego their father's inheritance because they will enjoy inheritance on their husband's side of the family,” declared Justice Anthony Mrima.

Justice Mrima ruled that the law of succession does not discriminate between female and male children, whether married or unmarried, since all are considered beneficiaries of their parents’ estate.

According to the judge, the ghost of retrogressive customary practices that discriminate against married women when it comes to inheriting their parents’ properties has continued to thrive despite findings that such customs are backward and repugnant.

He said that his decision was in accordance with Article 27 of the Kenyan Constitution that prohibits discrimination of persons on the basis of their sex, marital status or social status.

“Traditional cultures which make it a taboo for married women to return to their homes to claim their father’s land are outdated and must not be used to discriminate against women. A time has come for those discriminative cultural practices against women to be buried in history,” the judge said.

The decision involved a case where Joyce Kimomwor was disinherited from receiving a share of her late father’s 13.5-acre piece of land on the basis that she was married.

Kimomwor sued her elder brother, James Tapoyo, for distributing the land belonging to their late father, Amuruk Silaure, to the other four siblings and their mother, while leaving her out.

Tapoyo had allocated himself and his two brothers three acres each, their unmarried sister 2.5 acres and their mother the balance.

The brother, in his defence, stated that he divided the land in accordance with his late father’s wishes that the married daughter should not come back to claim a piece of his land.

Justice Mrima, however, ruled that, being a daughter of the deceased, the woman ought to be treated the same as the rest of the children of the deceased, even if she was married.

“The Law of Succession Act does not discriminate between the female and male children or married or unmarried daughters of the deceased person when it comes to the distribution of his estate,” said Mrima.

He added that in seeking to disinherit the lady under the guise that she was married, her siblings were merely invoking old customary beliefs which are biased against women and tend to bar married daughters from inheriting their father's estate.

The judge ordered a redistribution of the land where the five children would each get 2.5 acres of the land while their mother would retain one acre.

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