Image courtesy of Knowledge at Wharton - University of Pennsylvania

This important ruling in the High Court of Kenya crept under the Kenya Forum’s radar last month, for which we apologise to readers, but its significance warrants reporting even if somewhat belatedly…

A ruling in the High Court by Justice Anthony Mrima on May 25th, 2023, declared it unconstitutional to deny married women a portion of their father’s land in an inheritance settlement.

Justice Mrima ruled that traditional cultures that prohibit married women from returning to their homes to claim their father’s property, is outdated and discriminatory against women.

In his ruling Judge Mrima said, “I am in agreement that [the] time has now come for those discriminative cultural practices against women be buried in history. This is in line with Article 27 of the Constitution that prohibits discrimination of persons on the basis of their sex, marital status or social status.”

Daughter Sues Her Eldest Brother

The ruling arose out of the case of Joyce Kimomwor who challenged her brothers over their refusal to give her a portion of their later father’s 13-acre land in West Pokot County.

Ms Kimomwor sued her elder brother, James Musa Tapoyo, after he distributed their father Tpoya Amuruk Silaure’s land to four other siblings and their mother but not to her.

Tapoyo argued that he had divided the land in accordance with his father’s wishes.
Justice Mrima however, ruled that as Kimomwor is a daughter of the deceased she should be equally treated as the rest of the siblings even though she is married.

Marriage has no Bearing

The judge declared that the decision by a daughter or son to get married should have no bearing as to whether or not they were entitled to inherit property of their deceased parents.

“The issue as to whether daughters of the deceased person, whether married or otherwise, are entitled to inheritance of the deceased estate is well settled”, said Justice Mrima, “The law of succession does not discriminate female and male children, whether married or unmarried.”

Justice Mrima also upheld the finding by the Court of Appeal that there is no justification to deny a married woman her father’s land on the assumption that married daughters should forego their father’s inheritance because they will enjoy inheritance of their husband’s side of the family.