Women and Property Rights in Kenya: ACase Study of Gender Inequality inProperty Ownership

INTRODUCTION

In Kenya, land remains a central factor of production and a sensitive issue in social, cultural, and economic life. Despite the enactment of the 2010 Constitution and the adoption of the Kenya National Land Policy[1], challenges related to land ownership persist. Among the most significant of these challenges are the inequalities faced by women in exercising their property rights.

The Constitution of Kenya 2010 guarantees every person the right to own property of any description in any part of the country, with specific provisions protecting vulnerable groups, including women. However, women’s equitable access and secure rights to land remain limited. Data from the Kenya Land Alliance illustrates this disparity: in Kisumu, only 2.32% of land is registered under women compared to 97.42% under men. In Nandi, women own just 4.61% compared to 93.49% owned by men.[2]

The article explores the legal framework surrounding women’s property rights in Kenya, highlighting traditional, cultural, and legal barriers that leave widowed women at a disadvantage, particularly in land ownership. It discusses the adverse effects of these inequalities and includes practical recommendations aimed at addressing gender disparities in land ownership.

SECTION 1

Githu Muigai, in ‘Women and the Law in Kenya’ explains that important steps have been taken to emancipate women from the constraints imposed by traditional society and to enforce the constitution’s prohibition against sexual discrimination. However, much remains to be done and the future will witness more strides towards equality of sexes. He further explains that a woman passes through four distinct stages in her lifetime: before marriage, during marriage, after divorce, and upon the death of her husband. At each stage, the law confers on her a distinct capacity to own and hold property which in most cases, this law has been violated.^[3] Although Githu explains on the important steps to be put in place to achieve women rights over property, he does not tell us how much is needed to put in place for these steps to be realized.

Atieno Ndomo articulates that customary law hinders women’s land rights in Kenya, emphasizing the crucial role women play in agriculture through small-scale farming. Despite their significant contribution, women possess less than one percent of land titles, depriving them of ownership and control over agricultural produce, thus exacerbating poverty among women. While Ndomo identifies key challenges regarding land ownership for women, she does not propose solutions to address these issues. Additionally, Katrina Juma and Charles Kanjama critique the inconsistency in Kenyan court decisions regarding matrimonial property division since the enactment of the Married Women’s Property Act. Their review highlights the complexities surrounding spousal property rights, yet fails to offer concrete recommendations for resolving the inconsistencies in judicial decisions.

Maina Joseph Ndirangu, in ‘Reconciling Echaria v. Echaria^[4] with Article 45 of the Constitution’, explains the effects of the constitution on matrimonial property law with respect to division of matrimonial property; on how the constitution became the new regime and explains the effects of article 45(3)[5] on matrimonial property disputes in Kenya. The new legislation, however, on matrimonial property has some loopholes, some of which cause a stir as illustrated in the newspaper article in The Guardian on ‘why Kenya must not pass its revised marriage property bill’ where the writers explain the effects of the new Matrimonial Property Act and its declining effect on the progressive gender sensitivity regime set out by the constitution, among other loopholes.^[6]

SECTION 2 – LEGAL FRAMEWORK AND CONTEXT

Women’s rights to property and land in Kenya are protected under national, regional, and international legal instruments. These instruments collectively establish equality between men and women and prohibit discrimination in property ownership.

2.1 National Legal Framework

• Constitution of Kenya, 2010

Article 40[7] provides that every person has the right to acquire and own property of any description in any part of Kenya.

The Constitution also obligates Parliament not to enact laws that arbitrarily deprive a person of property. Further, Article 60[8] outlines principles of land policy, including equitable access to land, security of land rights, and elimination of gender discrimination in law, customs, and practices related to land. However, the same legitimizes certain statutes that perpetuate gender discrimination in property acquisition and ownership, particularly through the Law of Succession Act. This Act outlines provisions for intestate succession that disadvantage women. For instance, a widow’s life interest in the estate ends upon remarriage, unlike that of a widower.

• b. Matrimonial Property Act, 2013[9]

The Act affirms that married women have the same rights as married men to acquire, use, and dispose of property. Matrimonial property includes the matrimonial home, household goods and effects, and other movable or immovable property acquired during the marriage. Under Section 12, no matrimonial property may be alienated during the marriage without the consent of both spouses.

• Law of Succession Act

The Act governs both testate and intestate succession. It provides equal capacity for men and women to make wills but also contains discriminatory provisions. For example, if a widow remarries, her life interest in the estate of her late husband is terminated, while the same does not apply to men. The Act also prioritizes the father over the mother in inheritance when there are no surviving spouse or children.

• Matrimonial Causes Act

The Act secures a woman’s property rights upon judicial separation. It recognizes the wife as a feme-sole with respect to property acquired during the separation period, allowing her to dispose of it independently. The court may also issue orders regarding settled property after divorce.

• National Land Commission Act

The Act operationalizes Article 67 of the Constitution. It establishes the National Land Commission and incorporates Article 10 national values including equality, human dignity, inclusiveness, non-discrimination, and protection of marginalized groups. It also emphasizes gender equity in the composition of the Commission and in land administration.

• Land Act

This Act gives effect to Article 68[10] of the Constitution which eliminates culturally biased practices that limit women’s land rights and seeks to provide for sustainable administration and management of land.

2.2 Regional Instruments

• African Charter on Human and Peoples’ Rights (1981)[11]

The Charter guarantees equality before the law and equal protection. It obligates member states to eliminate all forms of discrimination against women and ensure protection of their rights.

• COMESA Treaty

This treaty recognizes the central role of women in socio-economic transformation and calls upon member states to eliminate discriminatory laws and customs, particularly those preventing women from owning land and other assets.

• East African Community (EAC) Treaty

The EAC Treaty mainstreams gender in all its activities and emphasizes gender equity, good governance, and women’s participation in economic and social development. It obligates member states to remove discriminatory laws and promote equal treatment of women.

2.3 International Instruments

• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[12]

CEDAW defines discrimination against women and obligates state parties to embody the principle of equality in national legislation, modify or abolish discriminatory laws, and protect women against discrimination by any person or institution. It emphasizes equal property and inheritance rights for women, including access to agricultural land.

• Universal Declaration of Human Rights (UDHR, 1948)[13]

The UDHR declares that all people are equal before the law and entitled to equal protection. It guarantees everyone the right to own property alone or in association with others and prohibits arbitrary deprivation of property.

• c. Beijing Platform for Action (BPFA, 1995)[14]

The BPFA promotes women’s empowerment and the elimination of obstacles to women’s participation in all spheres of life. It underscores gender equality as a prerequisite for development and includes equality in property ownership as a key pillar.

SECTION 4 – ANALYSIS AND OBSERVATIONS

The historical, cultural, and legal context of Kenya shows that women’s access to land and property has been shaped by patriarchal structures that persist despite modern legal reforms. While legal instruments have evolved, their implementation remains uneven, producing a gap between law and practice.

4.1 Historical Context and Legal Evolution

In the pre-colonial era, land was communally owned and controlled by clan elders who were almost always men. Women accessed land primarily through male relatives. Colonial authorities later introduced individual titling systems, legally recognizing men as landowners and eroding women’s already limited land rights.[15] Post-independence reforms sought to address these inequalities, but most legislative changes focused on ethnic and economic considerations, not gender equity. The extreme gender imbalance in land ownership created during the colonial era largely persisted, with only modest improvements after 2010.

4.2 Legal Protection vs. Enforcement Gap

The Constitution of Kenya, 2010, and subsequent legislation like the Matrimonial Property Act and Land Act provide for formal equality in property ownership. However, customary practices and discriminatory statutory provisions continue to undermine these rights.[16] Customary norms still dominate inheritance and land ownership in many communities, and women often avoid the formal court system due to cultural pressures or lack of legal awareness. Traditional forums, usually controlled by male elders, frequently rule against women despite constitutional guarantees.

4.3 Intersection of Law, Culture, and Gender

Women’s land rights are not just a legal issue but a deeply entrenched socio-cultural challenge. The intersection of gender roles, customary expectations, and family structures continues to limit women’s autonomy over land. Although the law recognizes both monetary and non-monetary contributions to matrimonial property, societal attitudes often minimize women’s contributions. As a result, women are still seen more as users of land than as owners.

SECTION 5 – RECOMMENDATIONS AND CONCLUSION

5.1 Legal Empowerment and Awareness

A key barrier to the realization of women’s property rights is the lack of legal awareness. Although legal instruments guaranteeing gender equality exist, many women remain unaware of these protections. Legal empowerment initiatives especially those led or supported by the state are necessary to equip women with the knowledge to assert and defend their rights.

Legislative Reform and Clarity

While Kenya has made strides in aligning its legal framework with constitutional principles, gaps and ambiguities remain. Legislative amendments should:   Remove discriminatory provisions in statutes such as the Law of Succession Act that undermine gender equality, Clarify ambiguous sections (for example, Section 39(1) of the Law of Succession Act) to ensure fair application; and even strengthen the enforcement of constitutional provisions on non-discrimination and equal treatment in property ownership.

5.3 Reform of Customary Law Practices

Customary law remains a significant obstacle to women’s property rights. Although the Constitution invalidates customs that conflict with its principles, many discriminatory practices continue at the community level. There is a need for harmonizing customary practices with constitutional and human rights principles, ensuring women’s equal access and ownership of property.

5.4 Enforcement of Gender Equity Principles

Gender equity provisions must be fully implemented, not just recognized in law. This includes increasing women’s representation in land administration and decision-making bodies, as envisioned under Article 27(8) of the Constitution. Active participation of women in these structures can help align institutional practices with legal guarantees.

CONCLUSION

The need to accord women equality before the law and enshrine their rights in the constitution was a result of the entrenched system of patriarchy in the whole of the Kenyan society. The new constitution of Kenya 2010 boldly affirms and makes explicit provisions that seek to advance women’s rights, dignity and status, precisely as regards their right to access and own land. Against a backdrop of extreme marginalization, exclusion and discrimination, it heralds a milestone for advancing the position and status of women in Kenya.

RECOMMENDATIONS

6.2 (1)    Legal Empowerment

There is need for legal empowerment as a civil society since women need to first understand what their rights are and know what is entailed in the law. This should be done through activities such as legal aid programs, seminars, conferences inter alia to help educate the general public and particularly women on their rights to land. It will also help discard the perceptions of the society towards women that view them as inferior to men.

6.2 (2)     Amendments of legislations to provide clear laws on gender equity

The Constitution of Kenya, 2010 being the supreme law of the republic, it gives validity to varios statutes. Some of these statutes have gender discriminatory provisions in them. For instance, the Law of Succession Act is discriminatory in its sections 36 and 39. Such provisions should be amended in order to achieve the constitutional provision on equality of gender.

6.2 (3)    Reformation of Customary laws in conformity with human rights and gender equity principles.

In Kenya, the great majority of the people conduct their personal activities in accordance with and subject to customary law. Customary law has great impact in the area of personal law in regard to matters such as marriage, inheritance and traditional authority, and because it developed in an era dominated by patriarchy some of its norm’s conflict with human rights norms guaranteeing equality between men and women. Therefore, Kenya must address the sex discriminatory provisions in its constitution, statutes, and customary laws to conform to human rights and gender equity principles.

6.2 (4)     Enforcing the universal gender equity principle

Women currently lack decision-making power in land administration, leading to insufficient outcomes despite constitutional provisions for equity. For a truly gender-equitable land tenure system, it is essential that women participate equally with men in both policy formulation and implementation. Their inclusion in local land management and dispute resolution committees is vital for empowering them and facilitating their involvement in community decision-making processes. Consequently, the Constitution and relevant legislation should embed the principle of gender equity across all areas of representation, whether elective or appointive, to ensure balanced governance at all levels.

[1] MINISTRY OF LANDS, Sessional Paper No. 3 of 2009 on National Land Policy

[2] https://www.kenyalandalliance.or.ke/

[3] Muigai G, Women and Property rights in Kenya.

[4] Maina Joseph Ndirangu, ‘Reconciling Echaria V Echaria with Article 45 of the Constitution’

[5] CoK 2010

[6] Tim Hanstand and Renee Giovrelli, ‘Why Kenya must not pass its revised marriage property bill’ The Guardian.

[7] CoK 2010 Art 40

[8] See 9, art 60

[9] Kenyalaworg

[10] CoK 2010

[11] Study.com (African Charter on Human and Peoples’ Rights (1981)

[12] CEDAW

[13] UDHR, 1948

[14] Beijing Platform for Action (BPFA, 1995

[15] Ojienda, T.O.  et al, Anti Corruption and Good Governance in East Africa: Laying Foundation for Reform (Nairobi, Law Africa Publishing (K) Ltd, 2007).

[16] http://int.search.tb.ask.com/search/GGmain.jhtml?st=sb&ptb=4FDCBE40-C97C-4B67-9EC5-9BF023964C1C&n=781b8e3e&ind=2015071806&p2=^XP^xdm116^YYA^ke&si=CNvH6t7p5MYCFYsEwwodK6kJHQ&searchfor=millicent+Odeny%2C+improving+access+to+land