Magdalena Akinyi* had a feeling something was amiss when, in 2012, total strangers started coming over to survey her land in Kakamega. The 46-year-old mother of four eventually found out that her husband, who was working in Nairobi, had married a second wife and sold the 4 hectares of land that he and Akinyi had purchased together during their 12 years of marriage.
“I confirmed he had sold the land, and I decided to sue them both – my husband and the buyer – for violation of the law, as my husband had not consulted me before selling the land,” Akinyi says.
A few years earlier, she would not have had the right to sue. Any land she bought with her husband would have legally belonged to him, and he would have been able to sell it at any time, without her consent.
But by the time Akinyi went to court in November 2013, parliament had passed the Matrimonial Property Act, which gave women a new set of rights in relation to land ownership, including the right to consent to the sale of land bought jointly with their husbands.
Armed with these new protections, Akinyi is now waiting for a court ruling to stop her husband selling their land from under her feet.
In Kenya, a woman’s right to own property, inherit and manage or dispose of her property has long been under attack from customary practices that grant women only secondary rights to land and property through male relatives. Data gathered by the Federation of Women Lawyers (FIDA) says despite the fact that about 32 percent of households in Kenya are headed by women, they hold only 1 percent of land titles on their own, while 5 percent own land jointly with men.
Five years ago, the country made some moves to strengthen women’s land rights by passing the Matrimonial Property Act 2013, which reinforced the equal rights enshrined in the constitution for both spouses when they own property together and granted some new rights to women landowners. But law experts and rights advocates say there are still too many obstacles – including cultural tradition and lack of awareness – that stop many women from accessing their fair share of land and property, especially in cases of inheritance.
“Despite the matrimonial property act giving women the capacity to register their property, the majority of women struggle to get their property as they are not aware that they should be registered as owners. Neither are they aware of the provisions provided for them by the new law,” says Janet Anyango, legal counsel with FIDA’s Access to Justice Program.
Raising Awareness of Rights
Hailed at the time it was implemented for explicitly protecting women in the division of property, the Matrimonial Property Act has given women a number of rights they didn’t have five years ago.
Women can now buy and register land individually and they can inherit land from their parents, instead of the land automatically being split between all the children. Women have an equal say in land that is bought and sold in their name, and in the case of polygamous marriages, each wife has a right to a portion of land based on contribution to the purchase and upkeep of the land. And when land is being apportioned after a divorce, the law now takes into account factors other than how much each person in the marriage paid for it, meaning a woman’s non-monetary contributions – including domestic work, management of the home, childcare and farm work – give her the right to more, if not all, of the couple’s land.
However, the Matrimonial Property Act has its limitations, and every year millions of women in Kenya still find themselves fighting to hold onto their property after a divorce or the death of their husbands. The act applies only in cases when a husband and wife have bought property together. It does not cover ancestral property which has been inherited from the husband’s father.
Which is why the act did little to help Bridgette Aniang’o* when her husband died in 2009. The land they owned had been inherited from Aniang’o’s father-in-law, giving her no legal right to keep it once her husband had died. So her brother-in-law was able to sell the land without her consent.
In consultation with her husband’s family, and the village chief and elders, Aniang’o was finally allowed to build on an 18-by-22-yard plot out of her 0.6 hectares of land. But the buyer contested the decision and sued Aniang’o, seeking to evict her and her children.
“My husband and his parents are buried here,” Aniang’o says through tears. “Where can I go? Where do I take my children?”
The Power of Community
Rights experts says the implementation of the Matrimonial Property Act and other women’s land rights laws is still slow, especially in rural parts of the country, where patriarchal traditions and community justice systems often override national legislation.
FIDA has been using radio talk shows and legal aid open days to raise awareness among women about their property rights. That includes educating women on the importance of jointly registering property that they buy with their husbands, because under the Matrimonial Property Act that gives both spouses the same interest in the property.
Betty Okero of CSO Network, a trust organization focusing on access to justice for women and girls in Nyanza province, says for Kenya’s women to get the full benefit of the law, they need to be willing to pursue their rights despite the cultural restrictions they face. Even if it means straining – or even breaking – communal and family ties.
“For a huge number of women, belonging to a community or family is more rewarding than the property. Some have been willing to give up [their rights] as long as they have a place to build a family house,” Okero says. “Culturally, having a home, a link to the community and a family is crucial than having to go through the court process that at the time cuts these ties. It’s belonging not just for you but also for your children.”
For that reason, Okero says, family and community support is vital for women seeking legal redress over a matrimonial property. She calls on village elders and chiefs to work through alternative justice systems to ensure women understand their rights and the gains they have achieved under the current laws.
As her case is being heard at the magistrate court in Kisumu, Bridgette Aniang’o is getting financial help from her brothers and legal representation from FIDA. Through the long, stressful process, she is confident that her community and at least some members of her family support her – and she says that gives her more strength than any law.
“Even if the new landowner wins, she will have to sell that land. She will never live nor farm among this community. She is not part of this community,” Aniang’o says.
*The names of some people have been changed to protect their identities.