Judge calls for succession law overhaul to protect women and girls' inheritance rights

Judge and gavel. [GettyImages]

High Court Judge Reuben Nyakundi has sparked a debate on whether Kenya should amend its succession law to recognise local customs, including marriages and come-we-stay arrangements and eliminate patriarchal norms that discriminate against women.

In his ruling on the estate of Andrea Maiyo, Justice Nyakundi noted that the frequent disputes over inheritance fighting arise largely because the Succession Act is not aligned with the 2010 Constitution.

He emphasised that only customs granting rights and equality to all parties, especially women, should be recognised.

Justice Nyakundi noted that, despite the Constitution guaranteeing marriage equality, some communities treat women as dependents, assuming they cannot make independent decisions without male guidance.

“It is interesting that some communities view adult women, in effect, the same as minors,” Nyakundi said.

“Any decision made by a woman, even in her capacity as a spouse, is often seen as incapable or invalid without reference to her husband or a male relative,” said Nyakundi.

He added that the traditional image of a man being as provider and protector continues to influence many succession disputes in the courts.

The judge stressed that women should not be relegated to the lowest rung in matters of inheritance.

Patriarchal systems

“There are many landmark cases in the Kenya Law Reports addressing the clash between discriminatory customary inheritance practices, such as patriarchal or male primogeniture systems and the constitutional guarantees of equality and non-discrimination. What is interesting is that, 15 years after the promulgation of our Constitution, legal tension between customary law and constitutional principles persists. In effect, applying patriarchal or primogeniture customs violates the Constitution,” he said.

He said that to date, there is no justification for denying a girl, married daughter, widow, or spouse the right to share in the wealth created during marriage noting that male inheritance rights have often dominated the narrative in many communities, effectively sidelining women.

However, he observed that the situation is somewhat different in multi-racial or multi-ethnic families.

Justice Nyakundi called for a frank national conversation on whether Parliament should amend the Succession Act, which has been in place since 1981.

“The time has come for us to fully embrace constitutionalism in promoting inheritance rights, ensuring human dignity and guaranteeing that women and other marginalized groups receive equitable shares in estate distribution,” he said.

He added, “If the Succession Law no longer reflects the aspirations of some citizens, it may be time to approach Parliament to enact a Customary Law Act. Such an act could harmonize and codify certain customs for recognition and protection, but it must remain consistent with the values outlined in Article 10 and other constitutional provisions, including the fundamental rights enshrined in Chapter 4, the Bill of Rights.”

Nevertheless, Justice Nyakundi dismissed an application by Peris Maiyo to change her lawyers in the case.

He also rejected her request to suspend the judgment requiring her family to share the estate left by the deceased.